New Jersey Bell Telephone Co.

National Labor Relations Board - Board Decisions

Oct 29, 1953

106 N.L.R.B. 1322 (N.L.R.B. 1953)

1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 9 (c) (1) and Section 2 ( 6) and (7) of the Act. Ac-
cordingly , we shall grant the Employer ' s motion and vacate
our Decision and Direction of Election herein and dismiss the
petition.
[The Board vacated the Direction of Election of August 6,
1953, and dismissed the petition.]
NEW JERSEY BELL TELEPHONE COMPANY and ELEANOR
STEIB
COMMUNICATIONS WORKERS OF AMERICA, CIO
and ELEANOR STEIB. Cases Nos. 2-CA-2804 and 2-CB-874.
October 29, 1953
DECISION AND ORDER
On August 24, 1953, Trial Examiner Sidney L. Feiler issued
his Intermediate Report in the above - entitled proceeding , finding
that the Respondents had not engaged in the unfair labor prac-
tices alleged in the complaint and recommending that the com-
plaint be dismissed in its entirety , as set forth in the copy of
the Intermediate Report attached hereto . Thereafter the General
Counsel and the charging Union filed exceptions to the Inter-
mediate Report and supporting briefs.
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 Intermediate Report , the exceptions and briefs,
and the entire record in the case , and finds merit in the excep-
tions filed by the General Counsel. We disagree with the Trial
Examiner's dismissal of the complaint and accordingly adopt
the Intermediate Report only to the extent consistent herewith.
The complaint alleges that the Union violated Section 8 (b) (2)
and 8 (b) (1) (A) of the Act by causing the Company to discharge
Eleanor Steib because she was not a union member , and that the
Company violated Section 8 ( a) (3) and ( 1) by discharging her for
such reason . There is no dispute as to the pertinent facts of the
case.
For some time before March 1952, Steib had been a member
of the Union . She resigned by letter on March 26 and simul-
taneously canceled her dues checkoff authorization with the
Company. The then current contract between the Union and the
Company required her to maintain her membership until
April 5, 1952, when the agreement expired. The parties made
a new contract with a similar maintenance-of-membership
clause on April 14. The last dues that Steib paid were for the
month of March and she never thereafter took steps either to
rejoin the Union or to reassert her affirmative resignation.
106 NLRB No. 245.
NEW JERSEY BELL TELEPHONE COMPANY 1323
By letter dated July 8, 1952, the Union advised Steib that if
she did not pay her dues up to date the Union would secure her
discharge , and on October 7, 1952, on the Union's demand, the
Company released her.
Admitting that it caused Steib ' s discharge , the Union defends
on two patently inconsistent grounds that : ( 1) Steib's dues
delinquency between April 1 and 5 made lawful the later dis-
crimination against her ; and (2 ) she did not succeed in ter-
minating her membership in March, and therefore was still a
union member when the new contract was executed and could
lawfully be discharged under the second contract for remaining
delinquent for more than 90 days. The Trial Examiner recom-
mended dismissal of the entire complaint on the ground that the
Respondents ' conduct was protected by the first contract, if for
no other reason. He reasoned that because the Act permitted the
Union to cause a discrimination against Steib during the life of
the first contract and while Steib was delinquent, there came
into existence a contract right in the Union to enforce the
privilege against her , even after the contract expired.
The Trial Examiner appears to have misconceived the basic
purport of the proviso to Section 8 (a) (3) of the Act, which is
to create an exception to the blanket proscription spelled out
in Section 8 (b) (2). The latter section outlaws the type of
conduct proved against the Union here, and the 8 (a) (3)
proviso in turn sets up a provable defense in the limited
situation where the union can show the existence of a contract
with a permissable union-security provision. To hold that the
existence of this special defense, at a moment when there is no
violation of Section 8 (b) (2), can serve to excuse violations
occurring at other times, is to ignore the plain language of the
Act. In effect, the Trial Examiner would expand the license
afforded by the 8 (a) (3) proviso to embrace 8 (b) (2) violations
occurring when there is no contract . We cannot accept this
view and we therefore reject the Respondent Union's first
defense.'
Although the Union argued that its October act was protected
in any event by the expired first contract, both it and the Com-
pany assert that Steib was discharged because she was de-
linquent in the payment of dues required by the union-security
clause in the second contract. The validity of this defense rests
squarely on whether or not Steib was a union member on April
14, 1952, when the maintenance-of-membership clause in that
INational Lead Co., Titanium Division, 106 NLRB 545, on which the Trial Examiner relies,
is inapposite because there was no hiatus between contracts in that case , and because,
unlike here , there was an "unmarred continuity" of successive union- shop clauses in con-
nected contracts which directly led the Board to treat the two agreements as one See,
rather, Haffenreffer and Co., Inc., 104 NLRB 206, where the union caused a discharge
almost 4 months after the contract terminated because an employee had been delinquent
during the last 6 months of the agreement. The Board found that both the union and the
employer had violated the Act because "no union-security agreement was in effect at the
time when Respondent Union requested Lester's discharge and when Respondent Employer
discharged him...."
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract first took effect. If she was not , she was never there-
after, by the terms of the contract , required to join, and con-
sequently was protected against discrimination both at the hands
of the Union and of the Company.
As stated above, Steib resigned from the Union on March 26.
The union constitution sets out no procedures for voluntary
withdrawal of membership ; it makes no mention of resignations.
It does contain a provision ( article VI , section 5 , entitled
''Non-Payment of Dues, Fines and Assessments ") which treats
with suspension and expulsion of members whofailto pay dues.
By virtue of this clause a member who was delinquent for 60
days "shall be automatically suspended from the rights of
membership and, if the default continues without good cause
for an additional thirty ( 30) days, . . . shall be automatically
expelled from the Union ." The only other provision relating to
termination of membership is article V, section 4, which pro-
vides that employees who progress to supervisory status must
leave the Union in 30 days , that employees may be expelled
[cross-reference to article VI], and that members may transfer
from one local to another of the International by withdrawal card.
It is a fundamental principle that an employee joining a
voluntary labor union for an indefinite period may resign
therefrom at will.' We see nothing in the Union ' s constitution
which can be said , even through the loosest construction of
words, to have bound Steib to involuntary membership a single
day. Indeed , the Union itself recognized that, its constitution
notwithstanding , a member may resign at will, for it told Steib
in its July 8 letter that "resignations can only be accepted when
they . . . are tendered when no contract exists." Constitutional
limitations upon members , however, if they exist at all, can
hardly be said to vary with changing arrangements which the
Union may have from time to time with different employers.
We do not now decide what binding effect, if any, an agreement
not to resign from a union would have upon an employee 's right
to be free from discrimination in her employment . It is clear
that Steib had agreed to no such limitation either directly or
inferentially . We find therefore that, upon her unequivocal
resignation , her union membership ceased in March and that
she was not a union member on April 14, 1952, when the con-
tract now urged as a defense by the Respondents was made. s
Our decision here is supported by the 1947 amendment to
Section 7 of the Act , which guarantees to all employees the
right to refuse to participate in any union activities. 4 ,
2C J. Secundum , Associations , Sec 24, p. 57-58 See , also, Louisville Ry. Co. v.
Louisville Area Transport Workers Union , et al , 312 Ky. 657
9Monsanto Chemical Co., 97 NLRB 517
4 "Sec. 7 Employees shall have the right to self-organization , to form , join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection , and shall also have the right to refrain from any or all of such activities ex-
cept to the extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section 8 (a) (3)."
NEW JERSEY BELL TELEPHONE COMPANY 1325
Accordingly , as Steib was not required by contract to be a
member of the Union in October 1952 , we find that by causing
her discharge for nonpayment of union dues the Respondent
Union violated Section 8 (b) (2) and 8 (b) (1) (A ) of the Act,
and that the Respondent Company, because it knew of her
continued nonmembership after March 1952 and nevertheless
discharged her at the Union's request, violated Section 8 (a) (3)
and (1 ). We also find that the Union violated Section 8 (b) (2)
and 8 (b) (1) (A) by its letter of July 8, in which it threatened
Steib with loss of employment if she did not pay union dues.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents , set forth above, occurring
in connection with the operations of the Respondent Company,
described in section I of the Intermediate Report, have a close,
intimate , and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow
of commerce.
THE REMEDY
Having found that the Respondents engaged in unfair labor
practices , we shall order them to cease and desist from this
and like and related conduct and to take certain affirmative
action designed to effectuate the policies of the Act.
We shall order the Respondent Company to offer Steib
immediate and full reinstatement to her former or a sub-
stantially equivalent position ,' without prejudice to her sen-
iority or other rights and privileges . We shall also order the
Respondent Union to notify the Respondent Company in writing
that it has withdrawn objection to Steib's reinstatement without
prejudice to her seniority or other rights and privileges.
As we have found that both the Respondent Company and the
Respondent Union are responsible for the discrimination suf-
fered by Steib , we shall order them jointly and severally to
make Steib whole for any loss of pay she may have suffered
by reason of the discrimination against her , by payment to
her of a sum of money equal to the amount that she normally
would have earned as wages from October 7, 1952 , the date of
her discharge , to August 24, 1953, the date of the Intermediate
Report, and from the date of this Decision and Order to the date
of the offer of reinstatement , less her net earnings during such
periods, 6 to be computed in the manner provided below. How-
5 The Chase National Bank of the City of New York , San Juan , Puerto Rico, Branch, 65
NLRB 827
6In accordance with the Board 's usual practice, the period from the date of the Intermediate
Report to the date of the Decision and Order herein is excluded in computing the amount of
back pay awarded to Steib because the Trial Examiner recommended that the complaint be
dismissed.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, the Union may terminate its liability for further accrual
of back pay by giving the Company the notice of withdrawal of
objection to Steib's reinstatement as provided above. The Union
shall not be liable for any back pay accruing 5 days after such
notice. 7
Consistent with established Board policy, B we shall order
that the loss of pay be computed on the basis of each separate
calendar quarter or portion thereof during the period from the
Respondents' discriminatory action to the date of a proper
offer of reinstatement.9 The quarterly periods, hereinafter
called "quarters," shall begin with the first day of January,
April, July, and October. Loss of pay shall be determined by
deducting from a sum equal to that which Steib would normally
have earned for each quarter or portion thereof, her net
earnings , 10 if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter.
We shall also order the Company to make available to the
Board, upon request, payroll and other records to facilitate
the checking of the amount of back pay due. 11
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that:
1. The Respondent, New Jersey Bell Telephone Company,
Newark, New Jersey, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in Communications Workers of
America, CIO, or in any other labor organization of its em-
ployees, by discharging any of its employees, or by discrimi-
nating against them in any other manner in regard to their hire
or tenure of employment or any term or condition of their
employment, except to the extent permitted by Section 8 (a) (3)
of the Act.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed 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
by Section 8 (a) (3) of the Act.
7 Pinkerton's National Detective Agency, Inc., 90 NLRB 205.
8F. W. Woolworth Company, 90 NLRB 289.
9 However, as provided above, the Union may limit its liability for the amount of back pay
by proper written notification to the Company that it has no objection to Steib's reinstate-
ment.
10 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N.L.R.B., 311
U. S 7.
U F. W Woolworth Company, supr
NEW JERSEY BELL TELEPHONE COMPANY 1327
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer Eleanor Steib immediate and full reinstatement to
her former or a substantially equivalent position, without
prejudice to her seniority or other rights and privileges.
(b) Upon request make available to the Board or its agents
for examination and copying, all payroll records, social-
security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts of back pay due under the terms of this Order.
(c) Post at its main office in Newark, New Jersey, copies of
the notice attached hereto as Appendix A.'2 Copies of such
notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondent Com-
pany's representative, be posted by the Respondent Company
immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
Company to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Second Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent Company has taken to comply herewith.
II. The Respondent, Communications Workers of America,
CIO, its officers, representatives, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause the Respondent, New
Jersey Bell Telephone Company, its officers, agents, suc-
cessors, or assigns, to discharge or otherwise discriminate
against its employees in violation of Section 8 (a) (3) of the Act.
(b) In any like or related manner restraining or coercing
employees of the Respondent, New Jersey Bell Telephone
Company, its successors or assigns, 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 employ-
ment, as authorized by 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) Notify the Respondent, New Jersey Bell Telephone
Company, that it has no objection to the reinstatement of
Eleanor Steib without prejudice to her seniority or other
rights and privileges.
(b) Post at its offices and meeting halls at Newark, New
Jersey, copies of the notice attached hereto as Appendix B. 19
12 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."
iiSee footnote 12.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
l
Copies of said notice, to be furnished by the Regional Director
for the Second Region, shall, after being duly signed by an
official representative of the Respondent Union, be postedby it
immediately upon receipt thereof and maintained by it for a
period of at least sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for the Second Region,
signed copies of said notice attached hereto as Appendix B,
for posting, the Respondent Company willing, at the Respondent
Company's offices in Newark, New Jersey, in places where
notices to employees are customarily posted.
(d) Notify the Regional Director for the Second Region, in
writing, within ten (10) days from the date of this Order, as to
what steps the Respondent Union has taken to comply herewith.
III. The Respondents, New Jersey Bell Telephone Company
and Communications Workers of America, CIO, their officers,
representatives , agents, successors , and assigns , shall jointly
and severally make whole Eleanor Steib for any loss of pay she
may have suffered by reason of the discrimination against her,
in the manner prescribed in "The Remedy" section of our
decision.
APPENDIX A
NOTICE TO ALL EMPLOYEES
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
our employees that:
WE WILL NOT encourage membership in Communica-
tions Workers of America , CIO, or in any other labor
organization of our employees , by discharging any of our
employees or by discriminating against them in any other
manner in regard to their hire or tenure of employment
or any term or condition of employment , except to the
extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our 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 agree-
ment requiring membership in a labor organization as a
condition of employment , as authorized by Section 8 (a) (3)
of the Act.
WE WILL offer Eleanor Steib immediate and full rein-
statement to her former or a substantially equivalent posi-
tion, without prejudice to her seniority or other rights and
privileges previously enjoyed , and we will make her whole
for any loss of pay suffered as a result of the discrimina-
tion against her.
NEW JERSEY BELL TELEPHONE COMPANY 1329
All our employees are free to become , to remain, or to
refrain from becoming or remaining members of the above-
named union or any other labor organization , except to the
extent that this right may be affected by an agreement author-
ized by Section 8 (a) (3) of the Act.
NEW JERSEY BELL TELEPHONE COMPANY,
Employer.
Dated ................ By.................................. .................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof , and must not be altered, defaced, or covered by any
other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF COMMUNICATIONS WORKERS
OF AMERICA, CIO, AND TO ALL EMPLOYEES OF
NEW JERSEY BELL TELEPHONE COMPANY
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, as amended , we hereby notify
you that:
WE WILL NOT cause or attempt to cause New Jersey
Bell Telephone Company, its officers , agents, successors,
or assigns , to discharge or otherwise discriminate against
its employees in regard to their hire or tenure of employ-
ment or any term or condition of employment to encourage
membership in our labor organization in violation of
Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or
coerce employees of New Jersey Bell Telephone Company,
its successors or assigns 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 requir-
ing membership in a labor organization as a condition of
employment , as authorized by Section 8 (a) (3) of the Act.
WE WILL make Eleanor Steib whole for any loss of pay
she may have suffered because of the discrimination
against her.
COMMUNICATIONS WORKERS OF AMERICA, CIO,
Labor Organization.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered , defaced , or covered by any
other material.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed by Eleanor Steib, an individual , against New Jersey Bell Telephone
Company, herein referred to as the Company, and an amended charge filed by said Eleanor
Steib against Communications Workers of America, CIO, herein referred to as the Union,
and upon an order by Charles T. Douds, Regional Director for the Second Region (New York,
New York) of the National Labor Relations Board, consolidating both cases, the General
Counsel of the National Labor Relations Boardiby the aforementioned Regional Director, on
April 9, 1953, issued a complaint against both the Company and the Union alleging that the
Company had engaged in and was engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act, and that the Union had engaged in and was en-
gaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) and Section
2 (6) and (7) of the Act Copies of the charges, complaint, and notice of hearing were served
upon the parties.
With respect to unfair labor practices, the complaint alleges that since October 7, 1952,
the Company has discriminated and is now discriminating in regard to hire and tenure of
employment and terms and conditions of employment of its employees to encourage member-
ship in a labor organization, by discharging Eleanor Steib, an employee, on or about that date
and by failing and refusing to reinstate her since that date beca^se she was not a member of
the Union The complaint further alleges that the Union since on or about July 8, 1952, has
restrained and coerced and is now restraining and coercing employees of the Company in the
exercise of the rights guaranteed under the Act by threatening to cause the discharge of Mrs.
Steib and actually bringing about her discharge because she was not a member of the Union.
It also alleges that the Union since on or about October 7, 1952, has caused the Company to
discriminate against its employees by attempting to cause and actually causing her discharge
and the subsequent failure to reinstate her.
The Company in its answer dated April 22, 1953, admits certain jurisdictional allegations,
denies the commission of any unfair labor practices, and affirmatively alleges that it dis-
charged Mrs Steib on demand of the Union because of her failure to maintain membership
in the Union by not having tendered periodic dues as required pursuant to an existing con-
tract between the Company and the Union The Union in its answer dated April 17, 1953,
likewise admits certain jurisdictional allegations and denies the commission of any unfair
labor practices. The answer further alleges that the Union caused the discharge of Mrs.
Steib because her membership in the Union was terminated in accordance with the provisions
of the constitution of the Union by reason of her failure and refusal to pay the regular dues
required of members of the Union by the aforesaid constitution , and that the discharge was
caused pursuant to and in accordance with the valid terms of a collective-bargaining agree-
ment in effect at the time the membership of Mrs Steib was terminated
Pursuant to notice a hearing was held at New York , New York , before the undersigned
Trial Examiner All parties were represented at the hearing and were afforded full op-
portunity to be heard and to examine and cross -examine witnesses At the conclusion of
the presentation of evidence all parties presented oral argument . An opportunity was also
afforded for the filing of briefs and/or proposed findings of fact or condlusions of law or
both A brief was filed by the Union. Upon the entire record and from his observation of the
witnesses, the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is and at all times herein material has been an operating company of The
American Telephone and Telegraph Co , and a member of a nationally organized telephone
communications network commonly known as the Bell System and, in the operation of its
business , furnishes its subscribers and other customers long distance telephone com-
iThe term General Counsel, as used herein, includes the attorney representing the General
Counsel at the hearing The National Labor Relations Board is referred to as the Board.
NEW JERSEY BELL TELEPHONE COMPANY 1331
munications services to various parts of the United States and foreign countries . It maintains,
and at all times herein material , has maintained , its principal office and business establish-
ment at Newark , New Jersey , and numerous other offices and business establishments in
various other parts of the State of NewJersey, where it is engaged in the business of furnish-
ing local and long distance telephone communications services to its subscribers and to other
customers throughout various parts of New Jersey The Company in the course and conduct
of its business operations annually purchases and causes to be shipped from points outside
the State of New Jersey to its offices and establishments in the State of New Jersey equip-
ment and supplies valued at several million dollars . The Company's annual operating revenue
is in excess of $ 150,000,000, approximately 22 percent of which is derived from telephone
calls originating at points outside the State of New Jersey . The undersigned finds that at all
times herein material the Company has been engaged in commerce within the meaning of
Section 2 (6) of the Act
IL THE LABOR ORGANIZATION INVOLVED
Communications Workers of America is a labor organization affiliated with the Congress
of Industrial Organizations and is a labor organization admitting to membership employees
of the Company
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The background
The Union is the collective - bargaining representative of nonsuperviosry employees in the
traffic department of the Company Two agreements between the Company and the Union are
relevant to these proceedings . The first is dated November 2, 1950, effective for the period
October 6, 1950, until April 5, 1952 . This agreement contained the following maintenance-of-
membership provisions:
ARTICLE XI
Maintenance of Union Membership
Section 1 . On and after November 6th, 1950, all employees who were members of the
Union on October 2nd, 1950 , shall , as a condition of employment , maintain membership
in the Union until the termination of this agreement or until promoted or transferred out
of the bargaining unit.
Section 2. All employees who become members of the Union more than thirty (30)
days after the effective date of this agreement or more than thirty (30) days following
the beginning of their employment , whichever is the later, shall, as a condition of em-
ployment , maintain membership in the Union until the termination of this agreement or
until promoted or transferred out of the bargaining unit
Section 3 The Company shall not be required to discharge or otherwise discriminate
against any employee under the provisions of this Article ( 1) if union membership is
not available to the employee on the same terms and conditions generally applicable to
other employees or (2) if union membership is denied or terminated for reasons other
than the failure of the employee to tender the periodic dues and initiation fees uniformly
required as a condition of acquiring or retaining membership.
The second agreement between the Company and the Union is the contract replacing the
prior agreement It is dated July 3, 1952, effective for the period April 14, 1952, to April
13, 1953. Except for minor changes in language the maintenance - of-membership provisions
in the new contract are identical with the provisions of the contract which it replaced. The
April 14, 1952 , agreement bears the date July 3, 1952. While this agreement was not fully
completed until the July 3 date , the maintenance- of-union-membership provision was agreed
to between the parties on April 14 , 1952, and those provisions were initialed as agreed to on
that date. Actually therefore , there was a lapse of 9 days so far as the maintenance of union
membership is concerned between the expiration of the old contract and the taking effect
of the new agreement . Both agreements contained provisions for wage deductions for union
dues commencing upon delivery of a written notice from an individual employee and terminat-
ing upon receipt of a written cancellation by the employee.
322615 0 - 54 - 85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharge of Eleanor Steib
Mrs Steib was employed by the Company from 1937 until 1942 and again from 1946 until
her discharge on October 7, 1952 She was a member of the Union and in a predecessor
organization continuously from 1948 or 1949 until March 1952. On March 26, 1952, Mrs. Steib
sent a letter of resignation to the Union (as noted in the letter , the letter was based on a
misapprehension that 10 years of service removed the necessity for an employee 's remaining
a member of the Union) On the same day Mrs. Steib sent written notice to the Company
canceling her dues - deduction authorization . The Union received the resignation on March 27
and the Company actually received the dues-deduction cancellation on March 28
Mrs Steib had signed a dues-deduction authorization card for this Union in August 1951.
Pursuant to this authorization dues were deducted on a monthly basis. Pursuant to this
authorization Mrs Steib's union dues were deducted for the month of March 1952 and pursuant
to her notice of cancellation no deductions were made in the month of April although there was
a contract between the Company and the Union running until April 5, 1952. Dues deductions
were customarily made by the Company in the first week of each month except when there was
insufficient pay in that week
The Union has a constitution which has been in effect since 1949 . There are provisions in this
constitution dealing with membership and dues. Article V , section 4 provides for termination
of membership (1) when any member accepts a position which would render him ineligible for
membership , (2) when a member is expelled ; and (3) when a member leaves the jurisdiction
of the Union.
Article VI, section 5 of the constitution has the following provision dealing with nonpayment
of dues
Section 5--Non-Payment of Dues. Fines and Assessments
A member in default , without good cause, in the payment of any installment of dues
or any fine or assessment for sixty (60) days from the date such amount becomes due,
shall be automatically suspended from the rights of membership and, if the default
continues without good cause for an additional thirty (30) days, after notice in writing by
the Local Secretary, shall be automatically expelled from the Union. "Good Cause"
shall be that which the governing body of the Local determines to be good cause.
The effect of this provision is that 90 days elapses from a default in the payment of dues until
the expulsion of a member from the Union.
On May 5, 1952, R. B. Lamscha, general traffic personnel supervisor of the Company, sent
a letter to Mrs. Steib informing her that the Union had taken the position that she had not "made
effective' her intended resignation from the Union and advising her that while the Company had
stopped deducting union dues pursuant to her request it was giving her this additional informa-
tion so that if her resignation from the Union was not effective she might wish to reconsider her
notice to cancel her dues -deduction authorization.
On May 6, 1952 , the Union sent Mrs Steib a letter reading as follows:
We are in receipt of your resignation from the Union and must advise you that it cannot
be honored.
Resignations can only be accepted when they comply with the terms of our past and
present contract or are tendered when no contract exists. To assist you in understanding
this position, we reproduce herein the Maintenance of Membership Clause as it presently
exists,
(Here the maintenance-of-union-membership clause in the April 14, 1952, agreement was set
forth in full ) The letter then continued
In view of the fact that you have authorized the Company to cancel your dues deduction,
they must comply However , in order to keep yourself in good standing , you will either
have to tender your dues in cash to your local headquarters or sign another dues de-
duction card. We are enclosing such card for your convenience and request that it be
forwarded to this office as promptly as possible.
We sincerely hope that the differences which prompted your resignation can be resolved
in the future.
NEW JERSEY BELL TELEPHONE COMPANY 1333
On July 8 , 1952, the Union again wrote Mrs Steib a letter in which the provision of its
constitution dealing with nonpayment of dues was set forth in full . The letter then continued:
This letter will inform you that your membership in C.W.A . has been suspended under
the above Constitutional provisions and that if you do not pay your dues within 30 days
from receipt of this letter , you will be automatically expelled.
Article XI , Section 1 and 2 of the agreement between C . W.A. and New Jersey Bell
Telephone Company require your membership in C.W . A. as a condition of continued
employment with the Company.
We would like to be sure that you understand our intent to take the necessary action
to secure your discharge from the Company in case you have not paid your dues in the
above required length of time.
If you have any questions , either about this Union or your status as a member, we will
be only too happy to answer them . We want to co-operate with you in any manner we can.
On October 7, 1952 , Traffic Superintendent Ames , a company supervisor , told Mrs . Steib that
the Union had requested her discharge and the Company was terminating her employment.
C. Contentions of the parties ; conclusions
There is no dispute as to the validity of both the 1950 and 1952 contracts with their re-
quirement that members of the Union at the commencement of the contract term maintain
membership in the Union for the life of the respective contract . 2 It was further stipulated
that in this case there was no attempt by the Union to have these provisions applied ret-
roactively. It was also agreed that Mrs. Steib failed and refused to pay any dues to the Union
after March 1952 and that the Union requested her discharge for that reason.
Section 8 (a) (3) of the Act makes it an unfair labor practice for an employer to discriminate
against an employee because of nonmembership in a labor organization . However , there is
exempt from the operation of this section discharges made pursuant to an authorized union-
shop contract which may require membership in the contracting labor organization as a
condition of employment . Section 8 (b) (2) makes it an unfair labor practice for a labor organi-
zation to cause or attempt to cause an employer to discriminate against an employee in
violation of Section 8 (a) (3). Section 8 (b) (1) (A) makes it an unfair labor practice for a labor
organization to restrain or coerce employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The General Counsel concedes that Mrs. Steib was obligated to pay dues to the Union during
the life of the 1950 contract and until its expiration on April 5, 1952, since she was a member
of the Union as of thlr inception of that contract . However , once the contract terminated, he
argues , Mrs Steib ' s obligation under that contract also was ended and the Union thereafter
could not rely on any default during the life of the contract as a basis for requesting her dis-
charge As to the 1952 contract , General Counsel contends that Mrs. Steib' s resignation on
March 26, 1952, before the commencement of the 1952 contract was effective as of that date
even though the constitution of the Union contained no procedure for voluntary resignation
and further provided that a member in default of dues payments would still continue as a
member in good standing until suspension or later expulsion ( Monsanto Chemical Company,
97 NLRB 517, 519). Therefore it is further argued since Mrs. Steib was not a member of the
Union at the time the 1952 contract became operative on April 14, 1952, the maintenance-of-
memtership clause contained in it was not properly applicable to her and action taken to
force her to become a member of the Union and pay dues and to cause her discharge for
failing to maintain membership and pay periodic dues was violative of the Act.
The Union on the other hand contends that the failure of Mrs. Steib to pay dues for April
1952, pursuant to the 1950 contract , constituted a default under that contract for which the
Union could later request her discharge regardless of the termination of that contract. As
to the 1952 contract it is contended that while Section 8 (b) (1) (A) provides that it shall be an
unfair labor practice for a labor organization to restrain or coerce employees in the exercise
of the rights guaranteed in Section 7 of the Act, there is a proviso "that this paragraph shall
not impair the right of a labor organization to prescribe its own rules with respect to the
acquisition or retention of membership therein " A constitution is a contract between the
Union and its members it is contended . The Union pursuant to the proviso quoted has the
2 Charles A. Krause Milling Co., 97 NLRB 536.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to prescribe rules for the retention of membership in it These rules are contained in
the constitution and Mrs Steib was bound by them by voluntarily becoming a member of the
Union Her attempted resignation was not effective and her membership continued pursuant
to the terms of the constitution for an additional 90 days after her original default in the pay-
ment of dues. Therefore she was a member in good standing as of April 14, 1952, the date
when the maintenance-of-membership provision under this contract became effective. She
therefore was obligated to pay dues to the Union during the life of this contract. Her admitted
failure to do so constituted an additional basis for her discharge.
The Company contends that regardless of the constitution of the Union Mrs. Steib could
and did resign from it. However, it takes the position Mrs Steib was also obligated to pay
dues to the Union pursuant to the 1950 agreement . Her failure to do so for the month of April
1952 vitiated the effect of the resignation and rendered operative in her case the default
provision contained in the constitution of the Union.
The undersigned finds merit in the contention that Mrs. Steib was properly discharged for
a failure to pay dues to the Union, pursuant to the maintenance-of-membership provisions
in the 1950 contract. It is conceded that she was required to pay dues to the Union during
the entire lite of that contract. It is further agreed that she made no payments to the Union
after March 1952 although the contract ran untilApril 5. The contention that this admitted de-
fault could not form the basis of disciplinary action after the termination date of the con-
tract fails to make a distinction between the incurring of an obligation under a contract and
action taken to remedy a breach of a contract. The expiration of the 1950 contract ended
Mrs. Steib's liability for the payment of future dues, absent her incurring some new obliga-
tion. However, at the expiration date of the contract she already had defaulted in her obliga-
tion under it. There is nothing in the legislative history of the Act indicating any attempt
or intent to modify the ordinary rules of contract law that the remedy for a breach of con-
tract survives the expiration date of the agreement. The Union, in the absence of any pro-
vision granting additional time to remedy a default in the payment of dues, could have
validly demanded Mrs. Steib's discharge immediately on her failure to pay the April dues
Its constitutional provisions giving additional time to remedy such a default were not in
derogation of the Act but actually conformed to them Certainly, the policies of the Act
would not be served by insistence that in the final months of a contract a union take immediate
action against those who default in the payment of dues or forever lose that right. The grant-
ing of additional time to remedy a default helps stabilize employment and prevents needless
discharges for technical defaults 3The undersigned therefore concludes that both as a matter
of contract law and in conformance with the purposes and policies of the Act, the granting of
a grace period by the Union to remedy a default in the payment of dues does not constitute a
bar to the later insistence by the Union on the discharge of an employee for a default in pay-
ment of dues during the life of a contract containing avalid maintenance-of-membership
clause even though the demand was made after the expiration of the contract involved. In the
case of National Lead Company, Titanium Division, 106 NLRB 545 the Board ruled that a
default in the payment of union dues, permitted the Union involved to require compliance with
the obligation even after the expiration of the particular contract involved. While certain
features in the National Lead Company case are not present in the instant case, the under-
signed finds that the same principle of law is applicable
Since it has been found that the Union could properly ask for the discharge of Mrs Steib
for failure to pay her dues under the 1950 contract and that the Company could comply with
the request without violating the Act, it is unnecessary to decide whether there was an
additional default by Mrs. Steib under the terms of the 1952 contract which furnished an
additional ground for her discharge The resolution of this issue would involve a detailed
consideration of the legislative history of Section 8 (a) (3), 8 (b) (2), and 8 (b) (1) (A) of the
Act as well as relevant decisions 4
While the Union has pressed that this issue be decided at this proceeding for its future
guidance, the undersigned has concluded that detail consideration of this issue which is now
unnecessary to the determination of the merits of this proceeding is not warranted.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case,
the undersigned makes the following:
3For an example of the operation of such a grace period when incorporated in a contract
see North American Refractories Company, 100 NLRB 1151.
4In addition to the cases previously cited in this report other cases that could be con-
sidered in the resolution of this issue are Union Starch and Refining Company, 87 NLRB
779, enforced 186 F 2d 1008 (C. A. 7), certiorari denied 341 U. S. 815; Injection Molding
Company, 104 NLRB 639 ; and Kuner- Empson Company , 106 NLRB 670.
MARDEN MANUFACTURING COMPANY 1335
CONCLUSIONS OF LAW
1. New Jersey Bell Telephone Company is engaged in commerce within the meaning of
the Act.
2. Communications Workers of America, CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
3. New Jersey Bell Telephone Company has not violated Section 8 (a) (1) and (3) of the Act
by discharging Eleanor Steib.
4. Communications Workers of America, CIO, has not violated Section 8 (b) (1) (A) and
Section 8 (b) (2) of the Act by requesting and causing the discharge of Eleanor Steib.
[Recommendations omitted from publication.]
MARION G. DENTON AND VALEDIA W. DENTON d/b/a MAR-
DEN MANUFACTURING COMPANY and UNITED STEEL-
WORKERS OF AMERICA, CIO. Case No. 10-CA-1523.
October 29, 1953
DECISION AND ORDER
On July 13, 1953, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in cer-
tain 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 filed exceptions to the Intermediate Report
and a supporting brief.'
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the Respondents'
exceptions and brief, and the entire record in this case, and
hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications:
'The Respondents' request for oral argument is denied because the record and the Re-
spondents' exceptions and brief, in our opinion, adequately present the issues and positions
of the parties.
2 We note and correct the following factual inaccuracies in the intermediate Report which
do not affect our findings or conclusions in this case: (1) the Trial Examiner found that
Foreman Brewster called two employee meetings on May 2, 1952, whereas in fact he summoned
employees to but one meeting on that date; (2) the Trial Examiner found that Foreman
Brewster stated that Denton would move to California on account of the health of Denton's
wife, whereas in fact Brewster stated that he (Brewster) would move to California on account
of the health of his wife; (3) the Trial Examiner found that sometime in May, Denton told
Keefer he had had a beer or two, whereas in fact it was H. D. Lassiter who made the state-
ment to Keefer with regard to his (Lassiter's) drinking; and (4) the Trial Examiner found that
the Respondents refused to bargain with the Union since May 13, 1952 (the date of the Union's
certification), whereas the record shows, and we find, that the Respondents' refusal to bargain
dates from May 27, 1952 (the date of the first negotiation meeting of the parties).
106 NLRB No. 247.