International Union, United Automobile, Etc.

National Labor Relations Board - Board Decisions

Mar 2, 1961

130 N.L.R.B. 1035 (N.L.R.B. 1961)

INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1035
International Union , United Automobile, Aircraft, Agricultural
Implement Workers of America , AFL-CIO and Local 899, Inter-
national Union, United Automobile , Aircraft, • Agricultural
Implement Workers of America , AFL-CIO [John I; Paulding,
Inc.] and George H. Young. Case No. 1-CB-633. March 2, 1961
DECISION AND ORDER
On August 30, 1960, Trial Examiner Vincent M. Rotolo issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in, the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a supporting -brief.
Pursuant to the provisions of Section 3(b), of the Act, the
Board has delegated its I powers in connection with this case to a
three-member panel [Chairman Leedom and Members Rodgers and
Jenkins].
The Board has reviewed the'rulings, of the. Trial Examiner made
at"the hearing and finds that no prejudicial -error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-.
mediate Report, the exceptions and brief, and the'entire record in this
case, and hereby adopts the ,findings, conclusions, and recommenda-
tions of the Trial Examiner, except as noted below.,
'ORDER.
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the-National Labor
Relations Board hereby orders that the Respondents, International
Union, United Automobile, Aircraft, Agricultural Implement Work-
ers of America, AFL-CIO, and its Local 899, and their respective
officers, representatives, agents; .successors, and assigns, shall :
1. Cease and desist from :
(a) Requesting John I. Paulding, Inc., todischarge'or otherwise
discriminate against. any employee when such discharge or discrimina-
tion would be in violation of Section 8 (a) (3) of the Act.
(b) In any other manner restraining or coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, except to the
'The Respondents have . excepted to the Trial Examiner's recommended order, which
directs the Respondents to cease requesting John I. Paulding , Inc., "or any other em-
ployer", to discriminate against employees in violation of Section 8(a) (3) of the Act. In
view of the fact that Respondent's unlawful activity involved only Paulding, we shall
limit the scope of the Order herein. W6 shall also revise the recommended notice to
conform to the Order issued.
130 NLRB No. 96. .
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as amended by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify John I. Paulding, Inc., in writing, that it withdraws
its demand that the employees listed in Appendix A be discharged
for nonpayment of dues to Respondents, and send a copy of said
letter to each of the employees listed in said Appendix.
(b) Post at the offices and meeting halls of the Respondent Inter-
national Union in New Bedford, Massachusetts, and of its Local 899,
located in the same city, copies- of the notice attached and marked
"Appendix B." a Copies of said notice, to be furnished by the Re-
gional Director for the First Region, shall, after being duly signed
by an official representative of the. Respondent International Union
and of its Local 899; be, posted, by them immediately upon receipt
thereof, and be maintained by them for 60 consecutive days there-
after, in conspicuous places, including all places where notices to their
members are customarily posted. Reasonable steps shall be taken by
them to insure that said notices are not altered, defaced, or covered
by any. other material.
(c) Mail signed copies of the notice to the Regional Director for
the First Region for-posting, by John I. Paulding, Inc., it being will-
ing, at all locations where notices to its employees are customarily
posted in its plant located at New Bedford, Massachusetts.
(d) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps they have taken
to comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, . there shall be. substituited ` 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."
APPENDIX A
Rose (Mesquita) Seifert
John A. Goodfellow
Yvonne Hall
Rita G. Parent
Maureen. Turner
Eva E. Reynolds
Evelyn Costa
Charles H. Brownell
Doris Foster
Patricia Nutting
Bertha L. Fay
Laura Varao
Clair Halstead
Ethel Gray
Margaret Painter
Robert Painter
Muriel Auclair
Antone Correia
Frank Correia
Eva Cormier
Elizabeth Mello
Doris Galligan
INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1037
America Araujo
Georgette Desrosiers
Jean Hall
Claire Bowles (Schweighardt)
Elsie Barboza
Muriel Taylor
Rose Blanche Gamache
Orel Cormier
John Antonio
Rose Marley
Christopher Bird
APPENDIX B
NOTICE TO ALL OUR MEMBERS , OFFICERS, REPRESENTATIVES, AND
AGENTS, AND TO ALL EMPLOYEES OF JOHN I. PAULDING, INC.
Pursuant to a Decision and Order of the,National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT request John I. Paulding, Inc., to discharge any
employee except as permitted by an agreement authorized by
Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner attempt to cause John I.
Paulding, Inc., to discriminate against the employees listed in the
Appendix to this notice, or. to discriminate against any other
employees, in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any manner restrain or coerce employees in the
exercise of the right to self-organization, to form labor organiza-
tions, to join or assist any labor organization , to bargain collec-
tively through representatives of their own choosing, and to
engage in concerted activities for the purpose of -collective bar-
gaining or other mutual aid or,,protection, or to refrain from. any
and all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by Section
8(a) (3) of the Act, as amended by the Labor -Management Re-
porting and Disclosure Act of 1959.
INTERNATIONAL UNION, UNITED AUTOMO-
BILE, AIRCRAFT , AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated----------------. By-------------------------------------
(Representative ) ( Title)
LOCAL 899, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT,
AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rose (Mesquita) Seifert Antone Correia
John A. Goodfellow Frank Correia
Yvonne Hall Eva Cormier
Rita G. Parent Elizabeth Mello
Maureen Turner Doris Galligan
Eva E. Reynolds America Araujo
Evelyn Costa Georgette Desrosiers
Charles H. Brownell Jean Hall
Doris Foster Claire Bowles (Schweighardt).
Patricia Nutting Elsie Barboza
Bertha L. Fay Muriel Taylor
Laura Varao Rose Blanche Gamache
Clair Halstead Orel Cormier
Ethel Gray John Antonio
Margaret Painter Rose Marley
Robert Painter Christopher Bird
Muriel Auclair
, This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material,
-INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by George H. Young of New Bedford , Massachusetts, on.
March 9 , 1960 , as attorney for 33 named employees of John I. Paulding, Inc.,
hereinafter referred to as the Company , alleging a violation of Section 8(b) (2)
and 1(A) of the National Labor Relations Act, as amended , hereinafter referred
to as the Act, against the International Union , United Automobile , Aircraft, Agri-
cultural Implement Workers of America , AFL-CIO, and its Local 899, hereinafter
at times collectively referred to as, the Union and at times respectively as the Re-
spondent International and Respondent Local 899 , the General Counsel of the
National Labor Relations Board , herein called the Board, by the Regional Director
for the First Region (Boston , Massachusetts ), issued a complaint against , the Union.
dated May 20, 1960 , which alleges , in substance , that since on or about February
23, 1960, the Union has been attempting to cause the Company to unlawfully
discriminate against the 33 named in the complaint in violation of Section 8(a)(3)
of the Act and that it thereby violated and is violating Section 8 (b)(2) and 1(A)
of the Act.
By its answer to 'this complaint , which was filed on May 27, 1960 , the Union
denied the commission , of the unfair labor practices and alleges, in substance, by
way of affirmative defense, that its requests to the Company that it discharge the-
named employees for nonpayment of dues, were privileged under the terms of a
collective -bargaining contract existing between the Company and the Union.
Pursuant to notice , a hearing on said complaint and answer was held by the
duly designated -Trial Examiner at New Bedford , Massachusetts , on June 9 and. 10,.
1960. The General Counsel , the Respondents , and the 33 named employees were
represented by counsel and participated in the hearing . All parties were afforded
full opportunity to be heard , to examine and cross-examine witnesses , and to intro-
duce evidence bearing upon the issues . At the close of the hearing the parties
argued the case orally , upon the record . Motions to dismiss the complaint, made by
the Respondents ' counsel during the hearing, were denied . After the close of the
hearing the General Counsel 's representative and Respondents ' counsel filed briefs
with the Trial Examiner which have been carefully considered.
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1039
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, John I. Paulding, Inc., is a Massachusetts corporation maintaining
its principal office and place of business at New Bedford, Massachusetts, where it
is engaged in the manufacture, sale, and distribution of electrical fixtures and
receptacles and other related products. Arthur E. Taber, assistant production
manager of the Company, testified, without contradiction, that products manu-
factured by the Company at its plant in New Bedford, Massachusetts, are shipped
directly from the plant to customers who are located in States other than-the State
of Massachusetts and that.the value of such products so. shipped annually exceeds.
the sum of $50,000. He also testified, without contradiction, that the Company
purchases materials necessary for the manufacture of its products, which are valued
at in excess of $50,000 annually and are shipped to its plant in New Bedford, Massa-
chusetts, by concerns which are located outside the State of Massachusetts.
On the basis of the foregoing uncontradicted testimony, I find that the Com-
pany is engaged in commerce between the States within the meaning of Section
2(6) and (7) of the Act and that its business operations meet the Board's existing,
standards for the exercise of its jurisdiction over manufacturing enterprises.
II. THE LABOR ORGANIZATIONS INVOLVED
The record shows that both the Respondent International and its local Respond-
ent Local 899 jointly represent employees of the Company for the purpose of
bargaining collectively concerning their wages, hours, and work conditions. I
therefore find that both the Respondent International and its local, Respondent
Local 899, are labor organizations within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The -basic facts
The Company, John I. Paulding, Inc., has had its manufacturing plant located
at New Bedford, Massachusetts, for. almost 50 years. Prior to 1958 its employees
were not represented by any labor organization. In the early part of 1958 the Union
began a campaign to organize the production and; maintenance employees of the
Company and a petition to certify it. as the collective-bargaining agent of such em-
ployees was filed with the Board. Subsequently an election was conducted by the
Board on said petition which resulted in the Union being selected by a majority of
said employees to act as their exclusive collective-bargaining agent. The election
was a close one, the Union receiving only a few votes more than the necessary
majority. Subsequently- the Union was certified by the Board as the exclusive
collective-bargaining agent of the Company's production and maintenance - em=
ployees; Some of the minority group of employees who had voted against the Union
at the election had been in the Company's employ for many years, some of them
for as many as- 40 years. These employees did not desire to become members'of
the Union, notwithstanding that, it was their collective-bargaining agent, - and so
informed the Company. Accordingly, when the first contract was negotiated and
executed by the Company.with-the Union on July 2,. 1958, the Company did not
agree that the existing employees who were not then members of the Union should
be required to join it as a condition of their continued employment. However, the
Company did agree, that all of its, existing employees who had become members of
the Union- before the contract was signed -or those. who would -become members
thereof after said date, would be required- to maintain their membership therein
,.,for the -term of this agreement", as - a• condition of continued employment. The.
Company also agreed, to require all - new. employees who were hired after the
execution of the contract; to become members of theCUnion on a date -not later.
than the end of their probationary period of employment or the 30th day following
the effective- date of the contract, whichever was later. - Such employees- were also
required to remain members of the. Union "for the term of this agreement" as a
condition of continued employment.
The Union, on its part; agreed not to request or require- the discharge of any em-
ployee, covered by the above-described union-security ,provisions, for nonpayment
of dues or initiation fees unless and until it" gave written notice to the Company
and to the employee of his default in the payment of the dues or initiation fees and
the Company and the employee were given a 7-day period to "correct" the default.
The parties further agreed that if any dispute arose between them concerning the,
interpretation or application of the above-described. union-securi ty, provisions; such.
1040 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
dispute should be processed under the grievance and arbitration procedures estab-
lished under the contract. ,The-Company" and'the Union also made an arrangement
for the deduction of monthly dues of employees, who were members of the Union,
from -their wages, provided that the employee signed the standard form of dues
deduction authorization card prescribed by the Respondent International. This
card provided that the deduction authorization would be automatically renewed at
the end of 1' year from the date thereof or by the end of the contract then in force,
whichever occurred sooner, unless the employee gave no more than 20 nor less than
10 days' written notice of his intent to revoke the authorization to the Company
and the Union prior to the expiration of the year or of the current contract, which
ever occurred sooner.
By the provisions of the constitution under which the Union operated, it was
provided (article 16, section 6) that any member who became delinquent in the
payment of dues for 2 consecutive months was automatically suspended from
membership and could only be reinstated as a member in good standing upon pay-
ment of a reinstatement fee prescribed by the local of which he was a member.
The same constitution provided (article 6, section 16) that a member could resign
from the Union only if he was in good standing in the payment of dues and fees
owing to the Union and there were no charges pending against him. This section
also provided that the resignation would be effective only if it was made in written
form and sent by registered mail to the financial secretary of the local union to
which the member belonged, within 10 days prior to the end of the fiscal year of
the local, and then it would not become effective until the expiration of 60 days
thereafter.
The first contract executed by the Company with the Union on July 2, 1958, was
for a period of 1 year and its termination date was June 30, 1959. It was provided,
however, that unless either party gave the other at least 60 days' notice of intent to
terminate 'the contract at its expiration it would be automatically renewed for an
additional period of 1 year. At. least 60 days prior to June 30, 1959, both the
Company and the Union gave each other notice of intent to terminate the contract
upon its expiration. The Union then sent the Company proposals for a new contract
which provided for additional benefits to the employees over, and above the benefits
they had received under the previous contract. The Company rejected these pro-
posals and by June 1959 it was clear to the employees that a strike would be
declared by .the Union against the Company when the existing contract expired on
June 30, 1950, unless an agreement was reached before that time. In the middle
of May 1959 a group of the nonunion employees of the Company had begun a
movement to decertify the Union as the collective-bargaining agent of the em-
ployees. Twelve of. these employees ; organized themselves as a committee -for,: the
purpose of obtaining the signatures necessary to file a decertification petition with
the Board. Lydia Pacheco, a clerical employee, was selected to act as secretary
of the committee. The committee retained the services of a local attorney,
George N. Young, to assist it in putting through the decertification proceedings
before the Board.
During the latter -part of May and early June 1959, Young issued a series of
circulars which he signed as attorney for the committee explaining to the employees
the purpose of the decertification petition and giving various arguments why the
Union should not be continued as their bargaining agent. In one of these circulars,
issued sometime in June 1959, he informed `the employees that ,they had the right,
under the law, to resign their membership 'in the Union, upon the expiration of
the existing contract. He set forth a form of resignation which they could use in
the circular and announced that the committee was ready to assist any employee who
desired to resign from the Union to accomplish such resignation when the contract
expired on June 30, 1959. Beginning with about 1 week prior to the expiration
of the contract, employees who were members of ' the Union began ' to approach
the members of the committee to assist them in accomplishing their withdrawal
from the Union upon the expiration of the contract. Young then prepared forms
for the withdrawal of these members from the Union and for the cancellation of
their dues deduction authorization, which -were to be effective on June 30, 1959.
These forms, prepared in triplicate, were given to members of the committee. As
employees requested the committee members to assist them in accomplishing 'their
withdrawal from the Union, they were given the forms to sign, in triplicate, with'
the explanation that one copy would be sent to the Union and another to the
'Company. The third copy was given to the employee for his own record.
By June 29, 1959, 17 employees had signed these forms. Two copies of each
form signed were collected by Lydia Pacheco and delivered to Attorney Young for
delivery, one copy to the Company and the other to the Union. Young prepared
INTERNATIONAL UNION, UNITED AUTOMOBILE, ETC. 1041
a forwarding letter enclosing the resignation forms and had them delivered respec-
tively to the Company and the Union, by personal service made by one of the
deputy sheriffs of the county. Young prepared an extra copy of the forwarding
letter, for the return of service to be made thereon by the deputy sheriff. Called
as a witness by the General Counsel, the deputy sheriff testified that he personally
delivered the letters with the enclosed resignation forms to the Company and the
Union, respectively, on June 29, 1959. The return of service, which is in evidence,
shows that the forms were delivered to the Local Union's president, Harry Dunham.
Dunham testified that he received these forms on the day in question and turned
them over to the International representatives at its regional office in New Bedford.,
Upon the expiration of the contract on the following day, June 30, 1959, the
Union declared a strike against the Company, the negotiations for a new contract
having broken down. Two of the employees who had signed resignation forms on
June 29, 1959, Jean Hall and Yvonne Hall, signed a document for the Union on
June 30, 1959, canceling their signatures on the decertification petition, which the
committee had prepared, and joined in the strike. However, they did not cancel their
signatures on the resignation forms which they had given the committee on the pre-
vious day. The strike continued on during the entire summer of 1959. Beginning
with the middle of August 1959, some of the members of the Union who were par-
ticipating in the strike returned to work. Upon their return to work the committee
members informed them that their action in abandoning the strike made them "scabs"
in the eyes of the Union and that they would probably be ousted from the Union.
They were advised to resign from the Union before charges were filed against them
for their strikebreaking activities. The employees agreed to do so and asked the
committee members to accomplish their withdrawal from the Union. Attorney
Young then prepared the forms of resignation to be used by them and the com-
mittee members had the form mimeographed and signed in duplicate, one for de-
livery to the Company and the other to the Union. The form used also contained a
cancellation of the dues deduction authorization which the employees had signed.
As these forms were signed by employees who abandoned the strike they were col-
lected by Lydia Pacheco, the secretary of the committee, and sent to the Company
and the Union, respectively.
During the month of August 1959, nine employees who abandoned the strike
signed these forms and gave them to the committee members for delivery to the
Company and Union. Eight additional employees signed and gave these forms to
some committee member for delivery to the Company and the Union during the
month of September 1959. Two additional employees did so during the month of
October 1959. All of these were collected by Lydia Pacheco, the secretary of the
committee, and sent to the Company and the Union as they were signed. Among
the employees who signed these forms and delivered.them to the committee for
forwarding to the Company and the Union during the month of September 1959
were Yvonne Hall and Jean Hall, who had previously signed resignations on June
29, 1959, but later signed cancellations of their decertification signatures and joined
in the strike. Another employee, Margaret Painter, who abandoned the strike in
August 1959, went directly to Attorney Young's office to sign the forms. Young
sent a copy of her union resignation and dues checkoff cancellation form to the
Company and the Union, respectively.2
On September 21, 1959, the executive board of Respondent Local 899 met to con-
sider what action would be taken against the employees who were abandoning the
strike and returning to work. It was decided to ignore their resignations and to
bring charges against them for their strikebreaking activities. However, no action
was ever taken on this decision. The strike continued for the remainder of the year.
1 The 17 employees who signed resignation forms at this time were Claire Bowles,
Charles H. Brownell, Georgette Desroslers, Bertha L. Fay, John Antonio, Doris Foster,
Doris Galligan, Rose B. Gamache, Ethel Gray, Jean Hall, Yvonne Hall, Clair Halstead,
Patricia Nutting, Eva Reynolds, Rose (Mesquita) Seifert, Rita Tripp, Laura Verao. All
of these employees, except Rita Tripp, are among the 33 employees mentioned in the
complaint.
2 The 19 employees who abandoned the strike and signed union resignation and dues
checkoff revocation forms when they returned to work were Muriel P. Auclair, Muriel
Taylor, Maureen B. Turner, John A. Goodfellow, Christopher Bird, Robert W. Painter,
Margaret Painter, Antone Correia, Frank Correia, Orel Cormier, Eva Cormier, Rose
Marley, Rita G. Parent, Evelyn Costa, America Araujo, Yvonne A. Hall, Jean Y. Hall,
Elizabeth Mello, and Elsie Barboza. All of the above employees are included in the
complaint.
597254-61-vol. 130-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In January 1960 the Company and the Union began negotiations again for a new
contract to settle the strike. On January 11, 1960, an agreement was reached and a
new 1-year contract was signed. This contract contained the same union-security
clauses as were contained in the contract of July 2, 1958, except that the provision
requiring new employees to join the Union as a condition of employment was made
retroactive to June 30, 1959. The maintenance-of-membership clause applicable to
existing employees, however, was not made retroactive to June 30, 1959. The Union
again could not request the discharge of any employee for nonpayment of dues
without giving 7 days' written notice to the Company and to the employee of the
default and the amount claimed by the Union. On February 23, 1960, the Union
sent the Company a letter advising it that each of the employees listed in the com-
plaint was delinquent in payment of dues plus a reinstatement fee and that upon
their failure to correct the default within 7 days, the Union would request their dis-
charge in accordance with article I, section 3 of the existing contract. A copy of
this letter was also sent to each of the employees .3 On March 9, 1960, Attorney
Young, acting on behalf of the 33 employees mentioned in the Union's letter of Feb-
ruary 23, 1960, filed 8(b) (1) (A) and (2) charges against the Union. On March 14,
1960, the Union filed a grievance against the Company charging it with violating the
terms of article I, sections 2 and 3, of the existing contract in not obliging the employ-
ees to pay the dues being claimed them. In this grievance it contended that the em-
ployees had not effectively resigned their membership in the Union and that they
were required to comply with the maintenance-of-membership clause of the existing
contract. It requested the Company to comply with article I, sections 2 and 3, of
the existing contract by obliging the employees to pay the delinquent dues and the
reinstatement fees it claimed that they owed or to discharge them if they refused to
do so. The director of personnel of the Company noted the Company's decision
on this request on the grievance form submitted by the Union. The Company's de-
cision was that it had been informed that a discharge of the employees pursuant to
the Union's request would constitute an unfair labor practice and that charges based
on the Union's request of February 23, 1960, were then pending before the Board.
B. Findings and conclusions
1. The alleged "Attempt to Cause" the Company to violate Section 8(a)(3)
of the Act
The General Counsel contends that the Union attempted to cause the Company
to discriminate against the 33 employees named in the complaint in violation of
Section 8(a)(3) of the Act. He contends that the Union's letter of February 23,
1960, and the demands contained in the grievance filed by it against the Company on
March 14, 1960, were attempts to compel the Company to take unlawful action
against the employees., He points out that the Union clearly indicated in both docu-
ments that it wanted the Company to oblige the employees to pay the dues it claimed
they owed it and that it should discharge them under the maintenance-of-membership
clause of the existing contract if they failed or refused to do so. Before it can be
decided whether these requests were unlawful, as the General Counsel contends, it
must be determined whether the Company would have violated Section 8(a) (3) of,
the Act if it had complied with the Union's requests. In this connection, considera-
tion must be given to the question whether, had it taken action against the employees
as required by the Union, it would have been privileged to do so under the union-
security clauses of the contract of January 11, 1960. The only clause which could
have applied to the employees was the maintenance-of-membership clause applicable
to existing employees who were still members of the Union after the termination of
the strike. If the employees here involved were still members of the Union when
the contract of January 11, 1960, was signed, they were obliged to continue paying
dues to the Union as a condition of their continued employment. If they were not
members when the contract of January 11, 1960, was executed, they could not law-
fully be compelled by the Company or the Union to pay dues in order to retain their
jobs. The real question here involved, then, is whether the employees had with-
3 This letter shows that the Union was requiring the employees to pay dues for the
period during which there was no contract in existence between the Company and the
,Union. Thus 20 of the 33 employees named in the complaint were being charged with
owing the Union $30 for 7 months' dues beginning with July 1, 1959, up to and including
February 1960. Twelve others were charged with owing $26 for 6 months' dues beginning
with A....... t 1, 1959, and one was charged with 5 months' dues beginning with Septem-
ber 1, 1959.
INTERNATIONAL UNION, UNITED AUTOMOBILE , ETC. 1043
drawn their membership from the Union prior to the execution of the contract of
January 11, 1960. The General Counsel contends , that they did so . Union counsel
contends that they did not. Union counsel admits that the Union received the resig-
nation forms and that they were clear indications of the employees ' desire not to
remain members of the Union . He also raises no question as to the authenticity of
the employees ' signatures on the forms. He contends , however , that the resignations
were not legally effective to terminate the employees ' membership in the Union. To
support this contention he advances several arguments . At the very outset he argues
that there was never a valid delivery or notification to the Union by the employees
themselves and that the delivery of the resignations by Attorney Young and by the
secretary of the committee to the Union was no proof to the Union that the employees
wanted to resign from the Union . He contends that the record is bare of proof that
the committee or its attorney were ever authorized by the employees to prepare resig-
nations for them and to deliver them to the Union on their behalf . This contention
is not supported by the record . On the contrary , the record shows that it was the
employees who wanted the committee to assist them in accomplishing their with-
drawal from the Union . Attorney Young had advised them in one of the circulars
that they could legally resign after the current contract expired . As a result of
inquiries being made by employees to members of the committee on how to ac-
complish their withdrawal from the Union , Attorney Young prepared a form which
combined their resignation as members of the Union and a revocation of their
dues checkoff authorization . The committee members had this form mimeographed
and made them available to employees who expressed a desire to withdraw from the
Union . I do not find that the committee members or Attorney Young practiced any
coercion or undue influence to obtain the signatures of the employees on these forms.
I find rather that the forms were signed voluntarily by the employees and in accord-
ance with their own free choice . Likewise I find that the employees gave implied
authority to the committee members or its attorney , Young, to see to it that the
forms reached their proper destinations . I infer this from the fact that they gave the
committee one copy of the form for the Company and another copy for the Union.
It was explained to them that two copies were necessary so that the Company and
the Union would both get notice of their desire to withdraw from the Union and
to cancel their dues checkoff authorizations. Under these circumstances the em-
ployees granted the committee implied , if not express , authority to deliver the forms
on their behalf to the Company and the Union.
Union counsel next contends that the resignations were legally ineffective to ter-
minate the employees ' membership in the Union because the procedure prescribed
by the Union for resignations of members was not followed by the employees. He
points out that under the International Union 's constitution , the employees were
required to send the resignations directly to the financial secretary of the Local
Union and that they were not presented within the time period when members of the
Union could resign in accordance with the Union's rules. He argues that when the
employees joined the Union, they made a contract with the Union to observe its rules
and their failure to do so made their resignations legally ineffective . He points out
that Congress intended that a union 's internal rules cannot be questioned by the
Board because it inserted a proviso to Section 8(b) (1) (A ) allowing a union to be
the judge of its own rules and regulations . I readily concede that under the proviso
to Section 8(b) (1) (A ) the Union is the judge of its own rules and regulations. I
also agree that the, Union would be privileged to finally determine whether the em-
ployees still were members of the Union under its own rules and regulations and
what their rights and obligations were under the membership contract . But we are
not here concerned with the rights and obligations which the employees had or may
have under the membership contract . We are solely concerned in these proceedings
with their rights and obligations under the statute and under the collective -bargaining
contract under which their discharge was being demanded by the Union . Under the
statute the employees had a right to withdraw their membership from the Union after
the contract of July 2, 1958 , expired and at any time during the period that there
was no contract in existence between the Company and the Union . The statute
imposes no restrictions or limitations on the exercise of this right . Any attempt by
Union either alone or in combination with the Company to restrict or limit the free
exercise of this right would be invalid and cannot be recognized by the Board in
carrying out the purposes of the statute . It is for this reason that the Board has held
that the failure of employees to follow union rules and regulations in terminating
their union membership will not deprive them of the protection of the Act where
they have clearly indicated they no longer wish to remain members of the Union.
See Newspaper Guild of Buffalo , Local #26, etc. ( Niagara Falls Gazette Publishing
Corporation ), 118 NLRB 1471 ; Marlin Rockwell Corporation , 114 NLRB 553.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above principle also applies to the exercise of an employee's right to terminate
his dues checkoff authorization at the end of the contract under which the authoriza-
tion was executed. No restrictions or limitations imposed by either the Company or
the Union unilaterally or by agreement with each other will be permitted to prevent
the free exercise of the employee's statutory right to revoke his dues checkoff author-
ization at the termination of the contract. Cf. Felter v. Southern Pacific Co., 359
U.S. 326.
Finally, the Union contends that the Board should not entertain this proceeding,
as a matter of policy, because the contract which the Union executed with the Com-
pany on January 11, 1960, contains a provision that all disputes relating to the in-
terpretation and application of the union-security clauses of the contract should be
processed by the parties under the grievance and arbitration procedures of the con-
tract. This contention is likewise without merit. Section 10(a) of the Act gives the
Board exclusive jurisdiction to determine whether the parties to union-security ar-
rangements made in accordance with the proviso of Section 8 (a) (3) of the Act, are
properly applying the terms of the contract.to the employees. This power cannot be
taken away by any agreement between the parties to the contract providing other
methods of determining whether the contract clauses are being properly applied. In
this case the Company refused to submit the question to arbitration. Even had it
agreed to do so and the arbitrator had held that the employees were still members of
the Union and that the maintenance-of-membership clause could be applied to them
to compel them to pay dues to the Union, the Board would not accept or adopt the
award since to do so would be contrary to the policies of the Act.
But there is another and dispositive reason why the application of the maintenance-
of-membership clause by the Company to the employees here involved would have
been unlawful. The letters sent by the Union to the employees on February 23, 1960,
indicate that it was demanding that they pay dues for the months during which no
contract was in effect between the Company and the Union. In effect it was at-
tempting to compel the Company to apply the maintenance-of-membership clause of
the contract of January 11, 1960, retroactively to July 1, 1959. Even if the em-
ployees were to be considered as still members of the Union, this demand would be
unlawful since the union-security clause could not be applied to collect dues which
accrued during a period when the employees were under no obligation under the
statute to pay them. See Colonie Fibre Company, Inc., 69 NLRB 589; 71 NLRB
354, enfd. as mod. 163 F. 2d 65 (C.A. 2); International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, CIO, Local 291 (Wis-
consin Axle Division, The Timken-Detroit Axle Company), 92 NLRB 968, enfd.
194 F. 2d 698 (C.A. 7); Local 140, Bedding, Curtain & Drapery Workers Union,
United Furniture Workers of America (The Englander Company, Inc.), 109 NLRB
328.
For the foregoing reasons, I conclude that the Union's requests of February 23
and March 14, 1960, that the Company oblige the employees named in the complaint
to pay it the dues and fees it was claiming from them or be discharged were unlawful
and constituted violations of Section 8(b) (2) of the Act.
2. The alleged restraint and coercion of the employees
The General Counsel contends that the attempts which the Union made to cause
the Company to violate Section 8(a)(3) of the Act, are also violations of Section
8(b) (1) (A) of the Act. There is merit to this contention. The Board has held
that an "attempt to cause" an employer to discriminate against employees in viola-
tion of Section 8(a)(3) also constitutes a violation of Section 8(b)(1)(A) of the
Act. See International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, et al., supra. In any case, the record shows that the union
letters to the employees of February 23, 1960, informed them that they would be
discharged under the terms of the existing maintenance-of-membership agreement it
had with the Company if they did not pay the dues and fees being claimed by it.
Since the agreement could not lawfully be applied to them, this threat constituted
an independent act of restraint and coercion which was violative of Section
8(b)(1)(A) of the Act. See Namm's, Inc., 102 NLRB 466.4
4I reject all the other arguments and contentions of union counsel including the argu-
ment that because some of the employees here involved, who returned to work during the
strike, cashed strike-duty checks after they allegedly resigned from the Union, they thereby
indicated an intention to remain as members of the Union. The evidence indicates that
each of the employees cited by union counsel received a strike-duty check for 1 week's
strike duty which they were scheduled to perform during the week that they abandoned
CARROLL EGG COMPANY, INC. 1045
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section III, above, occurring in connection
with the operations of the Company set forth in section I, above, have a close, in-
timate, and substantial 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
Having found that the Respondent International and its local, Respondent Local
899, have each of them engaged in and are engaging in unfair labor practices, it
will be recommended that they cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Respondent International and its Local 899 violated
Section 8(b)(2) and (1)(A) of the Act by requesting and demanding that the
Company discharge the employees listed in the complaint because they had paid
dues to the Union . I shall therefore recommend that the Union cease and desist
from making such requests and demands.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following: CONCLUSIONS OF LAW
1. The Respondents, International Union, United Automobile, Aircraft, Agri-
cultural Implement Workers of America, AFL-CIO, and its Local 899, are each
labor organizations within the meaning of Section 2(5) of the Act.
2. By attempting to cause John I. Paulding, Inc., to discriminate against em-
ployees in regard to their hire and tenure of employment in violation of Section
8(a)(3) of the Act, the Respondents International Union and its Local 899 have
engaged in and are engaging in unfair labor practices within the meaning of Section
8(b) (2) of the Act.
3. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Respondent International Union and its Local 899 have
engaged in and are engaging in unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act. -
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
the strike. There is some evidence to Indicate that the employees 'cashed the checks
believing it was for strike duty which they had performed the previous week. In any
event, I -do not consider'this evidence as substantial proof that they intended to remain
as members of the Union . Their consistent failure and refusal to pay dues to the Union
during the entire period following their abandonment of the strike indicates that they
had a real desire to withdraw their membership from the Union when they abandoned
the strike . The cashing of a check for strike duty which they In fact had not performed
might be proof of their unlawful detention of union moneys but it can hardly be con-
sidered as proof, In the circumstances here involved , of their intention to thereafter
remain members of the Union.
Carroll Egg Company, Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO. Case No.
18-CA-1076. March 2, 1961
DECISION AND ORDER
On September 9, 1960, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
130 NLRB No. 100.