District Lodge 67

National Labor Relations Board - Board Decisions

Nov 3, 1954

110 N.L.R.B. 727 (N.L.R.B. 1954)

DISTRICT LODGE 67 727
DISTRICT LODGE 67, INTERNATIONAL ASSOCIATION OF MACHINISTS,
AFL, AND EDWARD C. LAZEAR, ITS AGENT and ADDRESSOGRAPH-MUL-
TIGRAPH CORPORATION , WASHINGTON BRANCH . Case No. 5-CB-120.
November 3, 1954
Decision and Order
On June 7, 1954, Trial Examiner Sidney L. Feiler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and are engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondents and the General
Counsel filed exceptions and briefs.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and the briefs, and the entire record in the case
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that District Lodge 67, International Association
of Machinists, AFL, its officers, successors , assigns , and agents,
including Edward C. Lazear, shall :
1. Cease and desist from :
(a) Threatening to cause or attempting to cause Addressograph-
Multigraph Corporation, Washington Branch, to discharge Albert J.
Caneva, Neil A. Swift, Laurence LaFever, and Seavy Watson or any
other employee or employees because of their failure to pay dues to
or to maintain their membership in Washington Lodge No. 193, In-
ternational Association of Machinists, AFL, except to the extent that
such action on the part of the Respondents may be justified by the
specific, permissible, and applicable terms of an agreement with Ad-
dressograph-Multigraph Corporation, Washington Branch, as au-
thorized in Section 8 (a) (3) of the Act.
(b) In any like or related manner restraining or coercing employ-
ees of Addressograph-Multigraph Corporation, Washington Branch,
in the exercise of the rights guaranteed in Section 7 of the Act includ-
ing the right to refrain from joining or maintaining membership
in Washington Lodge No. 193, International Association of Machin-
ists, AFL, except to the extent that such right may be affected by the
specific, permissible, and applicable terms of an agreement with Ad-
110 NLRB No. 110.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dressograph-Multigraph Corporation, Washington Branch, as au-
thorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places at their respective business offices
and meeting halls, including all places where notices to members are
customarily posted, copies of the notice attached to the Intermediate
Report as "Appendix A." 1 Copies of said notice, to be furnished
by the Regional Director for the Fifth Region, after being duly signed
by the Respondents and their designated agents, shall be posted by
the Respondents immediately upon receipt thereof and maintained
by them for a period of sixty (60) consecutive days thereafter. Rea-
sonable steps shall be taken by the Respondents and their agents to
insure that said notices are not altered, defaced, or covered by any
other material.
(b) Mail to the Regional Director for the Fifth Region signed
copies of said notice for posting, the Washington Branch being will-
ing, at that Company's offices in Washington, D. C., in places where
notices to employees are customarily posted.
(c) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps the
Respondents have taken to comply herewith.
1 This notice . however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "The Recommendations of a Trial Examiner " and substituting in
lieu thereof the words "A Decision and Order." In the event that this Order is enforced by
a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order "
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed by Addressograph -Multigraph Corporation , Washington
Branch , herein referred to as the Company , or the Washington Branch , against Dis-
trict Lodge 67, International Association of Machinists , AFL, herein referred to as
District Lodge 67, and Edward C. Lazear, its business representative , the General
Counsel for the National Labor Relations Board i by the Regional Director for the
Fifth Region ( Baltimore , Maryland ), issued a complaint against District Lodge 67
and Edward C. Lazear , as its business representative and agent , both hereinafter
collectively referred to as the Respondents , alleging that they had engaged in and
were engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A)
and (2 ) of the National Labor Relations Act, as amended , 61 Stat . 136, 65 Stat. 601,
herein called the Act. Copies of the charge , complaint , and notice of hearing were
served upon all the parties.
With respect to unfair labor practices the complaint alleges in substance that the
Respondents from on or about July 9, 1953, have demanded that the Company
discharge four employees, Albert J. Caneva, Neil A. Swift,2 Laurence LaFever, and
Seavy Watson because they were not members of District Lodge 67 . The complaint
alleges that this request was violative of the Act in that at the times the requests were
1 The General Counsel and the attorney representing him at the hearing are referred
to herein as the General Counsel. The National Labor Relations Board is referred to as
the Board.
2 The complaint incorrectly gives Swift 's middle initial as "J."
DISTRICT LODGE 67 729
made for the discharge of the four employees these employees were not required to
be members of the aforementioned Union and it is further alleged that by such
request the Respondents have restrained and coerced employees of the Company in
violation of applicable provisions of the Act.
The Respondents in their answer admit certain jurisdictional allegations , the re-
quest for the discharge of the four named employees , but deny the commission of
any unfair labor practices.
Pursuant to notice a hearing was held at Washington, D. C., before the duly
designated Trial Examiner. All parties were represented at the hearing and were
afforded full opportunity to be heard and to examine and cross-examine witnesses.
At the conclusion of the presentation of testimony, the General Counsel moved to
conform the pleadings to the proof as to formal matters. This motion , without
objection , was granted as to all pleadings . The Respondents moved to dismiss the
complaint on the ground that the General Counsel had not sustained the burden of
proof Decision was reserved on this motion and it is disposed of by the findings
and recommendations contained herein . The parties then were given an oppor-
tunity to present oral argument. Argument was waived by the parties but there
was informal and somewhat detailed discussion of the exhibits on the record. An
opportunity was also afforded the filing of briefs and/or proposed findings of fact
or conclusions of law or both. Briefs were received on behalf of the General Counsel.
and the Respondents.
Upon the entire record in the case 3 the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Addressograph-Multigraph Corporation, a Delaware corporation, has its factory
and principal office in Cleveland, Ohio, and operates a number of branch offices in
several States and in the District of Columbia, where it is engaged in the manufacture,
sale, distribution, and repair of office equipment and supplies. The branch located
in the District of Columbia, hereinafter referred to as the Washington Branch, is the
only branch involved in this proceeding. During the course and conduct of the op-
eration of the Washington Branch in excess of $100,000 worth of office equipment
and supplies is received annually from sources outside the District of Columbia,
while the sale of and service to office equipment and supplies in the District of
Columbia and surrounding territory is valued in excess of $100,000 annually. The
Trial Examiner finds that at all times material herein Addressograph-Multigraph
Corporation , Washington Branch , has been engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge 67, International Association of Machinists, AFL, is a labor or-
ganization within the meaning of the Act. Edward C. Lazear is and has been at
all times material herein the business representative and agent of District Lodge 67.
III. THE UNFAIR LABOR PRACTICES
A. The factual background
There is no dispute as to all the material facts herein . The disagreement is
whether as a matter of law demand could properly be made upon the Company for
the discharge of the aforementioned employees because of failure to pay union dues.
The following is a summary of the course of events.
On January 28, 1952 , a representation election was held among the employees of
the Washington Branch upon the petition of District Lodge 67. On February 5,
1952, a certification of representatives was issued by the Board through the Regional
Director for the Fifth Region designating as certified bargaining representative of
all service and repairmen employed in the Washington , D. C., Branch "District No.
67, International Association of Machinists, AFL." On April 4, 1952, a collective-
bargaining agreement was entered into by the Washington Branch and District Lodge
67. This agreement included a provision by which District Lodge 67 was recognized
as the exclusive collective-bargaining agent for all nonsupervisory servicemen em-
ployed at the Washington Branch . As to union security the agreement contained a
maintenance -of-membership clause requiring all employees covered by the agree-
ment as of the date of its execution who also were members of the Union or who
3 Most of the evidence was submitted In the form of written documents or stipulations.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voluntarily joined thereafter to remain members of the Union in good standing for
the duration of the agreement. New employees were required to join the Union
after the prescribed waiting period .4 The four employees named in the complaint
joined the Union after the contract was signed and therefore were required to main-
tain membership in it "for the duration of this agreement."
The agreement was to remain in effect until April 1, 1953, and thereafter from
year to year, "subject to sixty (60) days' written notice before April 1, 1953, or the
expiration of any subsequent year of a desire by either the Union or the Branch to
terminate the agreement."
There also was a provision permitting the opening of the agreement on or after
October 1, 1952, by a 60-day prior written notice given by either party "with respect
to general salary rates only." There was one reopening of the contract with respect
to salary rates and an agreement was entered into on October 16, 1952, providing
for certain adjustments. This agreement further provided "5. Except as herein modi-
fied, and as so modified, the Main Agreement shall continue in full force and effect."
On January 30, 1953, District Lodge 67 sent a letter to the Company stating in
part as follows:
Take notice that in conformity with Section 8 (d) of the Labor Management
Relations Act, notification is given that the undersigned hereby proposes to
modify the agreement presently existing between us.
Desired modifications are as follows:
(1) Union Shop
(2) Health and Welfare Plan
(3) Wage increases to be requested only if the current petition before the
WSB is not approved.
Be advised that we are ready and willing to meet with you for the purpose
of negotiating a modified contract.
We reserve the right to seek or demand further modifications upon receipt
of any counter-proposals from you.
This letter was signed by Edward C. Lazear as business representative of District
Lodge 67. The letter was sent on stationery of District Lodge 67. This stationery
also listed three "Affiliated Lodges" among which was Washington Lodge No. 193.
Contentions raised both by the General Counsel and the Respondents as to the status
of District Lodge 67 and Washington Lodge No. 193 in these proceedings will be
dealt with in detail later in this report.
A bargaining meeting pursuant to the request of January 30 was held on March
26, 1953. Lazear and two members of the shop committee at the Company repre-
sented the employees in the unit. There was full discussion of the Union's proposals.
In substance the Union asked for a union shop, increased benefits under the existing
health and welfare plan, and a modification of the existing merit rating provisions
to take care of certain grievances. A proposed addition to the contract relating to
merit rating was prepared and tentatively agreed to. Company counsel asked
whether the Union was asking for a 1-year agreement and a union representative re-
plied that it was. Lazear, in response to a question from company counsel, stated
that the Union was not asking for a reopening with respect to wages if the changes in
the merit rating plan were agreed to and operated successfully. The Company, by
its representative, pointed out that three paragraphs would have to be rewritten in
view of certain changes which had occurred since the contract was executed and that
the dates in the duration course would have to be changed. The meeting ended with
the understanding that company counsel would discuss the Union's request for a
union shop, hospitalization benefits, and the merit rating plan change with company
officials and would take the initiative in arranging for the next meeting.
4 "Union Security
"All employees covered by this agreement as of the date of the execution of this agree-
ment who are members of the Union in good standing or who voluntarily join the
Union thereafter, must remain members of the Union in good standing for the dura-
tion of this agreement, subject, however, to the limitations on this requirement set
forth in Section 8 (a) (3) of the National Labor Relations Act, as amended. New
employees must join the Union as of the thirty-first (31st) day of their employment
and maintain their membership for the duration of the agreement.. The provisions
of this paragraph shall take effect as to each employee thirty (30) days after the
beginning of his employment or thirty (30) days after the effective date of this agree-
ment, whichever is the later. Present employees who are not members of the Union
shall not be required to join the Union."
DISTRICT LODGE 67 731
On April 1, 1953 , a petition for decertification was filed by one of the employees
in the unit . A consent-election agreement was executed and an election was held
on April 20 . A certification of representatives was issued to "District 67, Interna-
tional Association of Machinists AFL" on April 28.
An April 27, Albert J. Caneva sent a letter addressed to Lazear stating "I wish to
inform you that as of this date , April 27, 1953 I am withdrawing from membership
in District Lodge 67 International Association of Machinists."
On the same day Neil A. Swift sent a letter to Lazear stating that he was giving
notice that he wished to "with-draw from the International Association of Machin-
ists Union , affiliated [sic ] with the Addressograph-Multigraph Corpation [sic],
effective April 27, 1953."
On May 12, 1953, Laurence LaFever and Seavy Watson each sent letters addressed
"Financial Secretary , District Lodge No. 67, International Association of Machin-
ists." Watson stated in his letter "You will please regard this letter as one of resig-
nation , as I no longer wish to continue Union Activity." LaFever, in his letter,
stated that he wanted to discontinue "Union activity" and that the letter should be
regarded as a resignation , effective immediately.
All of the above four, individuals were employed by the Company in the appro-
priate unit. All of them were covered under the maintenance -of-membership clause
in the original agreement . Caneva and Swift were employed in the unit as of the
date of the execution of the agreement . They were not members as of that date but
joined the Union during the period the agreement was in force . LaFever and Watson
were hired by the Company during the life of the agreement and pursuant to another
part of the union -security provision were required to join the Union as of the 31st
day of their employment and to maintain membership for the duration of the agree-
ment. All four employees paid their dues through the month of March 1953 but
did not pay any dues thereafter . It was further stipulated and agreed that the men
had actually joined Washington Lodge 193. All of them had sent their letters during
the period when the Union 's proposals for changes were in the bargaining state and
after the original terminal date in the contract of April 5, 1952.
On May 15, Lazear sent identical letters to the above four individuals. These
letters were as follows:
This will acknowledge receipt of your letter of resignation from the Inter-
national Association of Machinists . As you are aware , there is in existence a
valid collective bargaining agreement which requires as a condition of continued
employment , maintaining membership in the Union. Failure to do so is at
the risk of discharge.
Under our Constitution , I have no authority from the International Associa-
tion of Machinists to accept your resignation from the Union , as that is within
the sole province of the Grand Lodge of the International Association of
Machinists.
It is assumed that your letter of resignation is adamant to refusal to pay your
monthly dues as they accrue . As you are aware, under Article E, Section 14,
of the Constitution of the International Association of Machinists , delinquency
for three months in the payment of dues shall automatically cancel membership
and all rights , privileges and benefits incident thereto , and for that reason your
membership in this organization will not lapse until you are three months in
arrears.
In view of the foregoing , this is to inform you that three months after the
last payment of dues, you will no longer be a member in good standing of the
International Association of Machinists , and we will have no other alternative
but to request your discharge.
On May 15, the same day that Lazear sent his letters to the above individuals,
another bargaining conference was held between the Company and the Union.
Counsel for the Company presented a draft contract which differed from the April
4, 1952, agreement in that there was a change in the merit rating system and certain
technical changes have been made in other paragraphs . The parties proceeded to
discuss the proposed changes as well as the demands of the Union which were not
incorporated in the proposed agreement . The Union proposed and the Company
accepted the elimination of certain language dealing with the wage schedule . Lazear
then asked for a 2-year contract but the Company refused this demand stating that
it was company policy to make only 1-year contracts. However, the Company did
agree to change the duration clause to provide that either party could give notice
of a desire to modify or terminate the agreement . The full clause is as follows:
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DURATION OF AGREEMENT
This agreement shall be effective as of the date of its execution by the parties
and shall continue in full force and effect until May 19 , 1954 , and thereafter
from year to year , subject to sixty ( 60) days' written notice given by either
the Union or the Branch to the other party not more than seventy-five (75)
days prior to said date , or to the expiration of any subsequent yearly term of
a desire to modify or terminate the agreement.
The contract was executed on May 19, 1953.
On July 9, 1953 , Lazear sent the following letter to the branch manager of the
Washington Branch:
The following four (4) employees of the Addressograph-Multigraph Corpora-
tion have allowed their Union dues to lapse for a three month period and, there-
fore, are no longer members of the Union:
Albert J. Caneva
Neil A. Swift
Laurence LaFever
Seavy Watson
These employees were members in good standing in the International Associa-
tion of Machinists , Washington Lodge No. 193, at the time the current contract
was signed . Since they have permitted their membership in the Union to lapse,
we have no alternative but to request their dismissal from the services of the
Addressograph-Multigraph Corporation under the Union Security Clause of the
present agreement.
Very truly yours,
(S) EDWARD C. LAZEAR,
Business Representative,
District Lodge No. 67, I. A. of M.
The branch manager of the Washington Branch , B. J. Stone, in his reply of July 16,
1953, noted the dates of the resignation of the four individuals from the Union
and the fact that the Union had acknowledged receipt of these resignations on May
15, 1953 , and concluded "It is apparent from the foregoing that none of these service-
men were members of the Union as of the execution date of the present agreement,
each having resigned prior thereto." In reply to this letter, Lazear in a letter dated
July 22, 1953, stated:
Our current agreement was entered into on May 19, 1953, at which time
the above named servicemen were members in good standing in the union and
therefore , subject to its terms . For this reason , your letter is not satisfactory
reply to our request that these men be discharged under the Union Service Clause
of the Agreement.
In view of the foregoing , we wish to advise that we are now taking action
under the Grievance Procedure of our present contract to settle this matter.
Both the 1952 and the 1953 agreements had identical arbitration clauses providing
that any grievance involving the interpretation or application or claimed violation
of the agreement if not settled could be submitted to arbitration . The arbitrator,
as further provided, would have authority to interpret and apply the agreement but
would not have authority to modify it. His decision would be final and binding
upon the parties. A hearing before an arbitrator appointed pursuant to provisions
of the contract was held on November 5, 1953. At the outset of that proceeding
the Company moved that the arbitration hearing be stayed, in view of the pendency
of the charge herein before the Board , until final disposition of the charge by the
Board. This motion was denied . The arbitrator proceeded to consider the case on
its merits and subsequently issued his decision in favor of the Union . The Com-
pany did not take any action against the four individuals involved herein after the
award of the arbitrator, but kept them on its payroll.
The Relationship Between District Lodge 67 and Washington Lodge No. 193
District Lodge 67 is a delegate body composed of representatives of three local
lodges. Washington Lodge No. 193 is 1 of the 3 local lodges. Lazear is the
business representative of District Lodge 67. None of the local lodges has a paid
DISTRICT LODGE 67 733
full-time business representative. Whenever any matter by way of contract negotia-
tion, grievances, etc., affecting employees represented by either District Lodge 67
or Washington Lodge No. 193 arises it is the practice of Lazear to participate as
union representative. Lazear does not have as one of his duties the receipt of dues.
Lazear, as counsel for the Respondents put it, administers contracts for Washington
Lodge No. 193 thru District Lodge 67. However, he is not a business representative
of the Washington Lodge nor does it have any such representative.
The dues books issued to the four men involved in this proceeding noted that
they were members in Washington Lodge No. 193.
B. Contentions of the parties; conclusions
1. Rights and obligations under the 1952 contract
It is a violation of the Act for an employer to discriminate against an employee
because of his membership or nonmembership in a labor organization and a labor
organization violates the Act by causing or attempting to cause such a discrimination.
However, under a proviso to Section 8 (a) (3) an employer and a bona fide labor
organization may make an agreement , under certain limitations , requiring member-
ship in the labor organization as a condition of continued employment. In such
a case failure of an employee to tender periodic dues and initiation fees uniformly
required permits the labor organization and the employer to take action leading
to his discharge. It was agreed that the four employees involved in this proceeding
were required, under the maintenance-of-membership provision of the 1952 contract,
to pay union dues during the life of that agreement. It was further stipulated that
the four men had paid their dues through March 1953, but made no further payments.
There also is no dispute over the efforts by the Union to secure their discharge.
Unless this request was authorized by the terms of a valid union-security agreement
conditioning employment on union membership, there has been a violation of the
Act .-5
The General Counsel argues that the action taken against the four employees
was not authorized under any existing union-security agreement. The Respondents
take the contrary position. As to the 1952 agreement, the General Counsel contends
that it had expired on April 1, 1953, and thus could not be used as justification for
proceeding against the four men for later defaults in dues payments. The Respond-
ents contend that the 1952 contract was automatically renewed and that the men
were obligated under its provisions to pay dues and maintain membership in good
standing at the time they admittedly stopped paying dues.
The duration clause in the contract provided that it should be effective until April
1, 1953, and thereafter from year to year, "subject to sixty (60) days' written notice
before April 1, 1953, or the expiration of any subsequent year by either the Union
or the branch to terminate the agreement." Provision was also made in another
clause for reopening, with respect to general salary rates only, any time after October
1, 1952, on 60 days'' prior written notice by either party. On January 30, 1953,
District Lodge 67 sent its letter to the Washington Branch setting forth modifications
it wanted in "the agreement presently existing between us."
Whether a contract is automatically renewed is a matter to be determined by the
intent of the parties and the legal effect of their conduct construed in the light of the
provisions of an existing contract. Counsel herein have cited cases applying this
principle to particular facts.6
It is argued on behalf of the Respondents that since no notice to terminate was
sent to the Washington Branch, but only a notice of proposed modifications and
since there is a distinct difference in dictionary definitions between the words termi-
nate and modify, there was no termination and the 1952 agreement continued without
interruption.
On the other hand, the notice was sent on the very last day on which action could
be taken to forestall automatic renewal of the contract. Two extensive bargaining
5 Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347
U. S. 17.
6 Paterson Parchment Paper Co. v. International Brotherhood of Paper Makers, 191
F. 2d 252 (C A 3), cert. denied 342 U. S 933; Oil Workers International Union, Local
No. 463 v. Texoma Natural Gas Co., 142 F. 2d 62 (C. A. 5), cert. denied 324 U. S. 872,
325 U. S. 893; Mown.tartn States Division No. 17, Communications Workers of America v.
Mountain States Telephone & Telegraph Co., 81 F. Supp . 397. See also , United States
Steel Workers of America v. Shakespeare Co., 84 F. Supp . 267, 271; International Union
,of Operating Engineers v. Dahlem Construction Co., 193 F. 2d 470-5 (C. A. 6).
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conferences were held during which there was bargaining not only on the issues
stated in the notice but on others as well. These issues were of substantial economic
importance. The duration clause was changed to provide that either party had the
right to give notice of modification or termination whereas the 1952 agreement pro-
vided only for notice of termination. At the bargaining conference of May 15, 1953,
the Union asked for a 2-year contract while the Company argued for a 1-year period.
Such action is hardly compatible with the contention that as of that moment the
parties were in the second month of a contract which had already been automatically
renewed and had another 10 months to run. Finally, the agreement arrived at was
not prepared as an addition to the 1952 contract. A complete agreement was pre-
pared and dated May 19, 1953.- It recited that negotiations had been held and
concluded by and between the Washington Branch and the Union which the parties
desired to evidence in writing. The salary section was revised to include changes
in the merit rating system. It incorporated an appendix to the agreement which
set out job classifications and salary rate ranges in detail. Salary adjustments were
to be made retroactive to April 1, 1953. The provision in the 1952 agreement per-
mitting reopening with respect to general salary rates was dropped and it was spe-
cifically provided that the salary plan should remain in effect for the term of the
agreement. Minor changes were made in the clauses dealing with vacations and
paydays. The duration clause was substantially revised. The changes are apparent
when the two clauses are placed side by side.
1953 Agreement 1952 Agreement
Duration of Agreement
This agreement shall be effective as
of the date of its execution by the
parties and shall continue in full
force and effect until May 19, 1954,
and thereafter from year to year,
subject to sixty (60) days' written
notice given by either the Union or
the Branch to the other party not
more than seventy-five (75) days
prior to said date, or to the expira-
tion of any subsequent yearly term
of a desire to modify or terminate
the agreement.
This agreement shall be effective as
of the date of its execution by the
parties and shall continue in full
force and effect until April 1, 1953,
subject to the approval of an appli-
cation to the Wage Stabilization
Board, as outlined and stated in
Paragraph 21 with respect to vaca-
tions, and thereafter from year to
year, subject to sixty (60) days' writ-
ten notice before April 1, 1953, or
the expiration of any subsequent
year of a desire by either the Union
or the Branch to terminate the
agreement.
The Trial Examiner concludes from a consideration of all the above factors
including the 1952 contract, the notice sent by the Union to the Washington Branch,
the subsequent negotiations between the parties particularly the demands of the
Union which were aimed at substantial changes from the existing contract, and the
form of the contract as finally agreed upon including the changes actually made from
provisions in the 1952 agreement, that both as a matter of law and the intent of the
parties the 1952 agreement was not automatically renewed. The situation here is
similar to that in Paterson Parchment Paper Co. v. International Brotherhood of
Paper Makers, supra, at p. 254. In the latter case, a contract contained an automatic
renewal clause subject to 60 days' notice before the anniversary date of desire to
terminate. A notice was sent referring to the clause and requesting a meeting "for
the purpose of discussing changes in the contract for the coming year." The court
held that the notice operated as a notice of termination. It further stated:
It is true the notice envisages a continuing labor-management relationship
between the parties, but under a new contract to be negotiated in the two
months available before expiration of the old contract. As concerns the old
contract, the notice is a plain manifestation of unwillingness to continue under
its provisions beyond its potential expiration date.
The language of the court applies with equal force here. The notice by the Union
operated and was intended to operate to forestall automatic renewal of the 1952
contract.' The timing of the notice and the scope of negotiations indicates that the
7 Standard Register Co., 100 NLRB 981 ; Peters Sausage Company, 95 NLRB' 740, 741;
Standai d-Thomson Corporation, 88 NLRB 1229; Worthy Paper Company Association, 80
NLRB 19, 20.
DISTRICT LODGE 67 735
parties intended and did substitute a wholly new agreement in place of the 1952
contract.8
The Trial Examiner, therefore, concludes that since the 1952 contract expired
according to its terms on April 1, 1953, its union-security provisions cannot be relied
on as permitting action taken against union members who ceased to be members in
good standing after April 1, as is the situation in this case.
2. Rights and obligations under the 1953 contract
At the time the Union sought to have the Washington Branch discharge the four
employees named in the complaint there was a contractual arrangement between
the parties; namely, the contract of May 19, 1953. In fact, when Lazear sent the
letter of July 9, 1953, requesting such action, he referred to the fact that these
employees were members in good standing at the time the "current contract" was
signed and also that their dismissal was requested under the union-security clause
of the "present agreement." However, the General Counsel points out that both the
1952 and 1953 contracts had identical union-security clauses requiring maintenance
of membership and containing the provisions: "Present employees who are not mem-
bers of the Union shall not be required to join the Union." He contends that each
of the four employees resigned from the Union prior to May 19, its effective date,
and therefore the union-security clause in the 1953 contract did not apply to them.
He further argues that since the contract, as entered into by District Lodge 67 and
the Washington Branch required maintenance of membership in "the Union" and,
admittedly, District Lodge 67 had no membership among the employees of the
Washington Branch, the clause was of no effect against them because of impossibility
of performance.
Counsel for the Respondents, on the other hand, without disputing the right of
the four employees to resign from the Union, asserts that these resignations were
ineffective and that therefore they were subject to the union-security provisions of
the 1953 contract. He also contends that the fact that employees of the Washington
Branch were members of Washington Lodge No. 193 does not bar District Lodge 67
from, representing them in collective-bargaining negotiations.
District Lodge 67 was designated as collective-bargaining representative of the
employees in the appropriate unit at the Washington Branch in two elections con-
ducted by the Board. It successfully negotiated contracts on behalf of the employees.
Even though employees were not accepted as members of District Lodge 67 it was
a labor organization within the meaning of the Act.9 The arrangement that em-
ployees of the Washington Branch could join and pay their dues to Washington Lodge
No. 193 rather than directly to District Lodge 67 was a matter of the internal organi-
zation of the International Association'of Machinists with which the Board has no
concern in the absence of any proof that such an arrangement in some way infringes
on rights guaranteed under the Act. There is no such evidence here. In fact, the evi-
dence establishes that employees were issued membership books in Washington Lodge
No. 193 and also participated in contract negotiations through a shop committee
whose signatures are affixed to both agreements. This arrangement apparently
worked to the satisfaction of everyone concerned. Under these circumstances, while
it undoubtedly would have been better to have the contracts set forth more clearly,
the relationship between District Lodge 67 and Washington Lodge No. 193, the con-
tention that the union-security clause in the 1953 contract fails because of impossi-
bility of performance, would seem to be unduly technical and a construction not
warranted under all the facts and circumstances herein. However it is unnecessary
to finally decide this issue in view of the conclusion of the Trial Examiner that the
four employees involved resigned before the 1953 agreement became effective.
The constitution of the International Association of Machinists, and the bylaws
of District Lodge 67 and Washington Lodge No. 193 were received in evidence.
None of these documents contain provisions dealing with resignations, although
there are provisions dealing with loss of membership due to nonpayment of dues
8 E. I. DuPont de Nemours & Company, Inc., 73 NLRB 439, 440 ; Duquesne Light Corm
pany, 71 NLRB 336, 337-340; General Electric Company, 82 NLRB 722
9 The Burrower Corporation, 102 NLRB 1149, 1150; Anheuser-Busch, Inc., 102 NLRB
800, 801 ; United Tanners, Inc., 103 NLRB 760; Metallic Building Company, 98
NLRB 386, 395.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or misconduct . In this respect, this case is similar to the case of "New Jersey Bell
Telephone Company," 106 NLRB 1322 where the Board stated:
It is a fundamental principle that an employee joining a voluntary labor union
for an indefinite period may resign therefrom at will.2
- 2 C. J Secunduni, Associations, Sec 24, p. 57-58. See, also, Louisville Ry. Co., V.
Louisville Area Transport Workers Union, at al., 312 Ky. 657.
The Respondents do not challenge the right of the four employees to resign but
maintain that the purported resignations were not effective because they were not
tendered to the "proper official as provided in the Union's constitution." They point
to provisions in the formal union documents placing responsibility for the handling
of membership applications and dues collections in local lodges, the place of District
Lodge 67 in the union organization as a delegate body of representatives from local
lodges, and maintain that resignations to be effective must be forwarded to a
"responsible official" of a local lodge, and that Lazear advised the four employees of
their error when they forwarded their resignations addressed to him or to the financial
secretary of District Lodge 67.
Lazear, in his letter to the four employees, dated May 15, 1953, did advise them
that he had no authority to accept their resignations. However, he did not refer them
to any official of Washington Lodge No. 193, but stated "that is within the sole
province of the Grand Lodge of the International Association of Machinists." He
then referred them to the article in the I. A. M. constitution dealing with loss of mem-
bership for nonpayment of dues and cautioned them that their discharges would be
sought if they refused to remain members in good standing.
It is clear and admitted that there was a close relationship between District Lodge
67 and Washington Lodge No. 193. While the four employees did receive member-
ship books in Washington Lodge No. 193 and paid their dues to it, it also is true the
respective roles of these two organizations under the contract were not clear and
definite and the confusion over to whom a resignation should be addressed is under-
standable. In fact, none of the basic union documents deal with the subject of
resignations and no official is designated as the proper person to receive them
nor is any form or procedure set out.'° It is clear that the four employees sought
to terminate their union affiliation and took steps reasonably calculated to give
proper notice. There is no claim that responsible officials both of District Lodge
67 and Washington Lodge No. 193 were not on actual notice of the effort of the
four employees to resign. The Respondents assert a technical defense which, under
the circumstances herein, should not, in the opinion of the Trial Examiner, be
accepted. Accordingly, it is concluded that the resignation of the four employees
were operative and took effect prior to May 19, 1953, the effective date of the second
contract. The provision in the union-security clause of that agreement, "Present
employees who are not members of the Union shall not be required to join the
Union," applied to them. They were not required to be union members in good
standing pursuant to any existing agreement and the action taken against them
because of their nonmembership was violative of Section 8 (b) (2) and (1) (A)
of the Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the business operations of the Addressograph-Multigraph Corporation,
Washington Branch, set forth in section I, above, have a close intimate and substan-
tial relation to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
It has been found that the Respondents in violation of the Act have threatened
and attempted to cause the discharge of four employees of the Washington Branch
because of their failure to maintain union membership.
It will be recommended that the Respondents cease and desist from engaging in
the foregoing unlawful conduct and from in any like or related manner restraining
and coercing employees of the Washington Branch in the exercise of the rights guar-
10 Monsanto Chemical Company, 97 NLRB 517, 519, footnote 4.
11 New Jersey Bell Telephone Company, 106 NLRB 1322; Monsanto Chemical Company,
97 NLRB 517.
DISTRICT LODGE 67 737
anteed by the Act. It will be further recommended that the Respondents also take
certain affirmative action designed to effectuate the policies of the Act.12
CONCLUSIONS OF LAW
1. District Lodge 67 and Washington Lodge No. 193, International Association of
Machinists, AFL, are labor organizations within the meaning of Section 2 (5) of
the Act.
2. By demanding that the Washington Branch discharge Albert J. Caneva, Neil
A. Swift, Laurence LaFever, and Seavy Watson, employees of the Washington
Branch, because they were not members of Washington Lodge No. 193 at a time
when applicable contract provisions did not require these employees to maintain
union membership, the Respondents have attempted to cause the Washington Branch
to discriminate against employees in violation of Section 8 (a) (3) of the Act and
by said acts and conduct have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (b) (2) of the Act.
3. By the above conduct and by threatening the said employees with loss of em-
ployment if said employees should fail to maintain union membership in good stand-
ing at a time when applicable contract provisions did not require these employees
to maintain union membership as a condition of continued employment, the Respond-
ents have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (b) (1) (A).
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
12 The fact that the validity of the efforts to secure the discharges of the four indi-
viduals named in the complaint was the subject of an arbitration proceeding under the
1953 contract does not preclude a finding that such conduct constituted an unfair labor
practice, since the Board's power to prevent unfair labor practices is not effected by any
other means of adjustment or prevention, whether established by agreement, by law,
or otherwise. Section 10 (a) ; Columbus Iron Works Company, 107 NLRB 1354; Mon-
santo Chemical Company, 97 NLRB 517, 520.
Appendix A
NOTICE TO ALL MEMBERS OF DISTRICT LODGE 67 , AND WASHINGTON LODGE No. 193
INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL AND ALL EMPLOYEES OF
ADDRESSOGRAPH-MULTIGRAPH CORPORATION , WASHINGTON BRANCH
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT threaten to cause or attempt to cause Addressograph -Multi-
graph Corporation , Washington Branch , to discharge Albert J. Caneva, Neil
A. Swift, Laurence LaFever, and Seavy Watson or any other employee or em-
ployees because of their failure to pay dues or to maintain membership in
Washington Lodge No. 193 except to the extent that such action on our part
may be justified by the specific , permissible , and applicable terms of an agree-
ment with Addressograph -Multigraph Corporation , Washington Branch, as
authorized in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
Addressograph-Multigraph Corporation , Washington Branch , in the exercise
of their rights under the Act including the exercise of their right to refrain from
joining or maintaining membership in Washington Lodge No. 193, except to the
extent that such right may be affected by the specific , permissible , and applicable
terms of an agreement with Addressograph -Multigraph Corporation , Washing-
ton Branch , as authorized in Section 8 (a) (3) of the Act.
DISTRICT LODGE 67 , INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL,
Labor Organization.
Dated---------------- By--------------- -----------------------------(Agent or Representative ) ( Title)
Dated---------------- ----------------------------------------------
Edward C. Lazear
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
338207-55-vol . 110-48