Int'l Union, United Automobile, Aerospace, Etc.

National Labor Relations Board - Board Decisions

Apr 25, 1963

142 N.L.R.B. 296 (N.L.R.B. 1963)

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To the extent that new evidence at the reopened hearing may affect
the Trial Examiner's present findings, including the Union's majority
status, the Trial Examiner may revise such findings or make addi-
tional findings where necessary. The Board having duly considered
the matter,
IT IS HEREBY ORDERED that the record in this proceeding be, and it
hereby is, reopened, and that a further hearing be held before Trial
Examiner Sidney Sherman for the purpose of receiving additional
evidence relevant to the May 2 allegation.
IT IS FURTHER ORDERED that this proceeding be, and it hereby is, re-
manded to the Regional Director for the Fourth Region for the pur-
pose of arranging such further hearing, and that the said Regional
Director be, and he hereby is, authorized to issue notice thereof; and
IT IS FURTHER ORDERED that, upon conclusion of the supplemental
hearing, unless the parties waive their rights thereto, the Trial
Examiner shall prepare and serve upon the parties a Supplemental
Intermediate Report, and that following the service of such Supple-
mental Intermediate Report upon the parties, the provisions of Sec-
tion 102.46 of the Board's Rules and Regulations, Series 8, as amended,,
shall be applicable.
MEMBER RODGERS took no part in the consideration of the above
Order Remanding Proceeding to Regional Director for Further
Hearing.
International Union, United Automobile , Aerospace , Agricul-
tural Implement Workers of America (UAW), AFL-CIO, and
its Local 899 [John I. Paulding , Inc.] and George H. Young.
Case No. 1-CB-762. April25,1963
DECISION AND ORDER
Upon a charge and amended charge filed on April 23 and July 11,
1962, respectively, by George H. Young, an individual, against Inter-
national Union, United Automobile, Aerospace, Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, and its Local 899
herein called Respondents, the General Counsel of the National Labor
Relations Board by the Regional Director for the First Region issued
a complaint and notice of hearing, alleging that the Respondents had
engaged in and were engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b) (1) (A) and (2) and Sec-
tion 2(6) and (7) of the National Labor Relations Act, as amended.
Copies of the charge, amended charge, complaint, and notice of hear-
ing were duly served upon Respondents.
142 NLRB No. 15.
INT'L UNION, UNITED AUTOMOBILE, AEROSPACE, ETC. 297
With respect to the unfair labor practices, the complaint alleged,
in substance, that Respondents had attempted to cause John I.
Paulding, Inc., herein called Paulding, to discriminate against certain
of its employees by demanding their discharge because of their non-
membership in Respondents or their attempt to withdraw from
membership.
On September 10, 1962, all the parties entered into a stipulation of
the record in which they waived a hearing before a Trial Examiner
and the issuance of an Intermediate Report, agreed that the stipulation
and certain specified documents should constitute the entire record
herein, and that findings of fact, conclusions of law, and the entry of
an order should be made directly by the Board.
On September 14, 1962, the Board approved the stipulation and
transferred the case to the Board. Thereafter, the General Counsel
filed proposed findings of fact and conclusions of law and a brief in
support thereof.
Pursuant to Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members
Rodgers, Fanning, and Brown].
Upon the basis of the stipulation and the entire record in the case,
the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
John I. Paulding, Inc., is, and at all times material herein has been,
a corporation duly organized under the laws of the Commonwealth of
Massachusetts, with its principal office and place of business on Kings
Highway, New Bedford, Massachusetts.
During the course and conduct of its business operations Paulding
annually sells and distributes to parties outside of Massachusetts, elec-
trical fixtures and receptacles of a value in excess of $50,000. The
parties have stipulated, and we find, that Paulding is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
T. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile , Aerospace , Agricultural
Implement Workers of America (UAW), AFL-CIO, and its Local
899 are labor organizations within the meaning of Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
Paulding and Respondents have maintained collective -bargaining
agreements since 1958. The first contract was entered into on July 2,
1958, and had a termination date of June 30, 1959. The contract,
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, contained a clause providing for automatic renewal from
year to year unless either party gave 60 days' notice of intent to ter-
minate. This agreement further provided that all employees of
Paulding who were members on the date of the execution of the agree-
ment had to maintain their membership in Respondents and all em-
ployees hired subsequent to the execution of the contract had to become
members. Accordingly, employees who were not members when the
contract was signed were not required to join. Proper notice to ter-
minate was given, and between June 30, 1959, when that first contract
expired, and January 11, 1960, no collective-bargaining agreement
was in effect between Respondents and Paulding. On this latter date,
the parties entered into a new 1-year agreement, also containing an
automatic renewal clause and also containing maintenance of mem-
bership and union-security provisions like those in the first contract.
Thus, this maintenance-of-membership provision obligated only those
employees who were members on January 11, 1960. During the in-
terim between the expiration of the first contract on June 30, 1959,
and the execution of the second one on January 11, 1960, a number of
employees, including six of the seven involved in the instant case,'
revoked their checkoff authorizations and sent in resignations from
membership in Respondents.
Proper notice to terminate the 1960 contract was given, and this
contract terminated on January 11, 1961. A new 1-year agreement
was reached on January 23, 1961. Like the previous ones, this con-
tract contained an automatic renewal clause, a union-security clause
applying to new employees, and a clause providing that present em-
ployees who were members on the date of the agreement were to
maintain their membership.'
Proper notice to terminate was given and the 1961 contract expired
January 23, 1962. On January 24, 1962, Respondents and Paulding
entered into their fourth contract. As did the first three, this contract
required new employees to join Respondents, and employees who were
members on January 24, 1962, to maintain their membership.
On January 6, 1962, employee Mary Fernandes revoked her check-
off authorization and submitted her resignation from membership in
Respondents to be effective January 23, 1962. No dues were there-
after paid to Respondents by this employee. As noted above, the
other six employees involved in this case had submitted resignations
in 1959, and these employees paid no dues following their resigna-
tions. The parties stipulated that all seven employees failed to fol-
I These six and the dates of their resignations are: Eva Cormier, September 1, 1959;
Orel Cormier, September 1, 1959 ; John Goodfellow , August 17 , 1959 ; John Antonio,
July 13, 1959 ; Doris Poster, July 13, 1959; Georgette Desrosiers , July 13, 1959.
2 During the January 11 to 23 period while no contract was in effect, 10 employees sub-
mitted resignations to Respondents . None of these employees is involved in the instant
case.
INT'L UNION, UNITED AUTOMOBILE, AEROSPACE, ETC. 299
low the procedures required by their membership and checkoff agree-
ments and Respondents' constitution and bylaws insofar as these docu-
ments pertain to resignation or cancellation of the checkoff and
membership agreements, with the single exception that Fernandes
complied with the requirements of the checkoff agreement.
On February 6, 1962, Respondents sent to Paulding and, with the
exception of Fernandes, to each of the employees involved herein,
notice that these employees were in arrears with respect to their dues,
and that failure to "correct the default" would cause Respondents "to
proceed with the step outlined in Article I Section 3 of the Agree-
ment"-the contract provision requiring Respondents to give 7 days
notice before requesting an employee's discharge for dues delin-
quency. On March 27, 1962, Respondents wrote Paulding advising
that the seven employees were in arrears in dues and that failure "to
correct these arrearages" within 7 working days would cause Respond-
ents to request their discharge. On this same date, March 27, Re-
spondents sent to each of the seven employees a notice of its action.
On April 18, 1962, Respondents wrote Paulding, sending copies to the
employees, requesting their discharge. On April 20, Respondents
filed a grievance with Paulding to oblige Paulding to discharge the
seven employees. No further action has been taken by the parties
for settlement of this grievance.
Conclusions
This is the third case to come before this Board involving attempts
by Respondents to obtain the discharge of employees of Paulding for
nonpayment of dues under the maintenance-of-membership clauses
of their contracts with Paulding. As to all of the employees involved
here, except Fernandes, the earlier decisions are controlling, and Re-
spondents' attempts to cause their discharge here clearly violated
Section 8 (b) (1) (A) and (2). In the first of these cases, International
Union, United Automobile, Aircraft, Agricultural Implement Work-
ers of America, AFL-CIO (John I. Paulding, Inc.), 130 NLRB 1035,
Respondents attempted to cause the discharge of some 33 employees
who had submitted resignations from Respondents on or after the
expiration of the first contract and prior to the execution of the sec-
ond contract on January 11, 1960. The Board found that, under the
Act, these employees had, a right to withdraw their membership from
Respondents after the first contract expired and at any time there
was no contract in existence. The Board concluded that these em-
ployees had, for purposes of the Act, effectively terminated their
membership prior to the date of the second contract, and were not,
therefore, on that date members who were subject to the maintenance-
of-membership clause in the second contract, and accordingly, Re-
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondents' attempts to cause their discharge for nonpayment of dues
under that clause were unlawful.'
In the second case, International Union, United Automobile, Air-
craft, Agricultural Implement Yorkers of America, AFL-CIO (John
1. Paulding, Inc.), 137 NLRB 901, Respondents attempted to cause
the discharge of the 10 employees who had submitted resignations
from Respondents during the interim between the expiration of the
second contract on January 11, 1961, and the execution of the third one
on January 23, 1961. Consistent with the prior decision, the Board
held that these employees had resigned prior to the execution of the
new agreement, did not therefore fall within the ambit of the mainte-
nance-of-membership provision of the new agreement, and, accord-
ingly, Respondents' attempts to cause their discharge for nonpayment
of dues under that provision were unlawful.
In both of these earlier cases, the Board rejected defenses of Re-
spondents resting on the failure of the employees to follow union rules
in resigning, and on the fact that the contracts with Paulding provide
for submission of disputes to a grievance procedure and arbitration.
We affirm those holdings here.
For the reasons set forth in the prior decisions, and particularly in
view of the fact, as indicated above, that in its Decision in 130 NLRB
1035 the Board had found that employees Eva Cormier, Orel Cormier,
John Goodfellow, John Antonio, Doris Foster, and Georgette
Desrosiers had effectively resigned from Respondents and were not
obligated by a subsequently agreed to maintenance-of-membership
clause, we find that as to these six-named employees, Respondents
violated Section 8(b) (2) by the sending of the letters of February 6,
March 27, and April 18, 1962, to Paulding. We further find that Re-
spondents violated Section 8(b) (1) (A) by the above acts and by the
sending of the letters of February 6 and March 27, 1962, to the em-
3 Respondents had sought the discharge of the 33 employees not only for the nonpayment
of dues during the term of the second contract , but also for nonpayment during those
months subsequent to the expiration of the first contract and prior to the execution of the
second one-a period when there was no contract in effect. In the absence of the existence
of a valid union-security contract , the employees , even assuming they remained members,
were not obligated 'to pay dues for this interim period as a condition of employment Thus,
the Board held, as "another and dispositive" reason for finding the discharge demands un-
lawful, Respondents ' predicating their demands on nonpayment during the period when
there was no contract.
On petition for enforcement of its Order , the Court of Appeals for the First Circuit
agreed with the Board that these demands for discharge were unlawful . N L.R B. v.
International Union, United Automobile, Aircraft , Agricultural Implement Workers of
America, AFL-CIO (John I. Paulding , Inc ), 297 F 2d 272. The court, however, rested
Its decision upon "another and dispositive" ground , stating that the Board itself had not
passed upon the more fundamental contention that the employees had an absolute right
vis-a-vis their relationship with their employer to terminate their union membership. It
was the intention and purpose of the Board to hold that the employees in issue had effec-
tively terminated their union membership irrespective of whether they had complied with
union resignation rules or not. But as that position was apparently not clearly set forth
in that decision of the Board , we now specifically hold here , on the basis of the facts in
the first Paulding case, as we did in the second Paulding case, infra, that these employees
had effectively terminated their union membership.
INT'L U- NION, UNITED AUTOMOBILE, AEROSPACE, ETC. 301
ployees. See International Union, United Automobile, Aircraft,,
Agricultural Implement Workers of America, AFL-CIO (John I.
Paulding, Inc.), 137 NLRB 901.4
Mary Fernandes occupies a different status. The finding of the
Board in the first case that the 33 employees involved there had effec-
tively resigned from membership, and the similar finding in the second
case dealing with 10 employees, were based primarily on the fact that
these employees had a right to resign when they did because no con-
tract requiring their continued membership was then in existence.
That is, their resignations came at a time when a hiatus between con-
tracts occurred. There was no such contract hiatus when Fernandes
attempted to resign. As noted above, one contract expired Janu-
ary 23, 1962, and the succeeding one became effective January 24, 1962.
The general legal principle applicable in this area is set forth in Na-
tional Lead Company, Titanium Division, 106 NLRB 545, at 548.1
In that case, the Board determined that where there is no time lapse
between the terms of successive agreements, and union-security clauses
thus have unmarred continuity, at least as to union security, the second
contract is to be treated as a continuation of the previous one. Under
this principle, the 1962 contract, at least as to the maintenance-of-
membership clause, which is a form of union security, is to be viewed
as a continuation of the 1961 contract, and it follows that the obliga-
tion of Fernandes to abide by this clause also continued. In these cir-
cumstances, we cannot find that Respondent acted unlawfully in re-
questing the discharge of Fernandes for failing to pay the dues she
was required to pay under the contract, and we shall dismiss the com-
plaint insofar as it alleges violations with respect to this employee.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondents set forth 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.
4 Member Rodgers would find that Respondents further violated the Act by filing the
grievance on April 20, 1962. See International Union, United Automobile , Aircraft, Agri-
cultural Implement Workers of America, AFL-CIO (John I . Paulding, Inc.), 137 NLRB 901.
In accord , Hershey Chocolate Corporation , 140 NLRB 249.
e Member Fanning would not dismiss this aspect of the complaint . As shown by the
stipulation of record , Fernandes ' membership in Respondents terminated at the precise
point in time that the 1961 contract , which obligated her to continue her membership
during its term, terminated This event took place before Respondents and her employer
executed the 1962 contract the next morning It also took place at a moment in time not
governed by the terms of the 1962 contract , which were applicable to events occurring after
the termination of the 1961 contract . The National Lead decision is distinguishable be-
cause there the "succeeding" contract was executed prior to the termination of the earlier
contract. The Hershey Chocolate decision is distinguishable because the "succeeding" con-
tract actually superseded and extended an earlier contract . Member Fanning concludes
that Fernandes effectively resigned her membership in Respondents , and that Respondents'
attempts to force her to pay dues violated Section 8(h) (1) (A), and its attempts to cause
Paulding to discharge her for failing to pay dues violated Section 8(b) (2).
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, we shall order them to cease and, desist therefrom and take
certain affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Respondents have violated and are violating Section 8(b) (2)
of the Act by attempting to cause Paulding to discriminate against
employees in regard to their hire and tenure of employment, in viola-
tion of Section 8(a) (3), by sending the letters of February 6,
March 27, and April 18, 1962, to Paulding.
2. Respondents have violated and are violating Section 8 (b) (1) (A)
of the Act by restraining and coercing employees in the exercise of
their rights to refrain from joining Respondents as guaranteed in
Section 7 of the Act by the acts referred to above, and by the sending
of the letters of February 6 and March 27, 1962, to the employees
listed in Appendix A.
3. The aforesaid labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
4. Respondents did not violate the Act in seeking the discharge
of Mary Fernandes.
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, Aerospace, Agricultural Implement
Workers of America (UAW), AFL-CIO, and its Local 899, and their
respective officers, agents, representatives, successors, and assigns,
shall :
1. Cease and desist from :
(a) Requesting John I. Paulding, Inc., to discharge 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
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.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
INT'L UNION, UNITED AUTOMOBILE, AEROSPACE, ETC. 303
(a) Notify John I. Paulding, Inc., in writing, that it withdraws
its demands 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 in New Bedford, Massachusetts, and of its Local 899 located
in the same city, copies of the attached notice marked "Appendix B."'
Copies of said notice, to be furnished by the Regional Director for the
First Region, shall, after being duly signed by an official representa-
tive of the Respondent International and of its Local 899, be posted
by them immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous places, includ-
ing 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
willing, 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.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges violations of the Act with respect to
Mary Fernandes.
7In 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."
APPENDIX A
Eva Cormier John Antonio
Orel Cormier Doris Foster
John Goodfellow Georgette Desrosiers
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, as amended, 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 Sec-
tion 8 (a) (3) of the Act.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL- NOT in any other manner attempt to cause John I.
Paulding, Inc., to discriminate against any employee 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 en-
gage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any and
all of such activities, except as such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8 (a) (3) of the
Act, as amended.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AERO-
SPACE , AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA (UAW), AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL 899, INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AEROSPACE, AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW), AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 24 School Street, Boston, Massachusetts, 02108, Telephone No.
Lafayette 3-8100, if they have any question concerning this notice or
compliance with its provisions.
Hollywood Brands , Inc. and United Bakery & Confectionery
Workers Local 441-B . Case No. 15-CA-9103. April 25, 1963
DECISION AND ORDER
On January 29, 1963, Trial Examiner Lee J. Best issued his Inter-
mediate 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 affirma-
tive action, as set forth in the attached Intermediate Report. There-
142 NLRB No. 25.