True Temper Corp.

National Labor Relations Board - Board Decisions

May 28, 1975

217 N.L.R.B. 1120 (N.L.R.B. 1975)

1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
True Temper Corp. and Matthew Gibson and Charles
Sutton.
International Woodworkers of America, AFL-CIO,
Local 5-379 and Charles Sutton. Cases
26-CA-5144-1, 26-CA-5144-2, and 26-CB-892
May 28, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On November 25, "1974, Administrative Law Judge
John P. von Rohr issued the attached Decision in this
proceeding. Thereafter, Respondents Company and
Union filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm rulings, findings,' and con-
clusions of the Administrative Law Judge' only to the
extent consistent herewith.
1. We agree with the Administrative Law Judge's
finding that Charles Sutton was constructively dis-
charged in violation of Section 8(a)(3) and (1) and
8(b)(2) and (1)(A) of the Act. The Administrative Law
Judge recommended that Respondent Company offer
Sutton immediate reinstatement and that Respondents,
Company and Union, jointly and severally make him
whole for any losses suffered by him. Respondent Com-
pany contends that it offered Sutton reinstatement on
July 31, 1974, and that its backpay obligation should
therefore be tolled as of that date. The issues raised by
this contention are, in our view, best deferred to the
compliance stage of this proceeding.
2. The Administrative Law Judge found, and we
agree, that Respondent Company violated Section
8(a)(3) and (1) of the Act and Respondent Union vi-
olated Section 8(b)(1)(A) and 8(b)(2) of the Act by
maintaining and enforcing an unlawful union-security
The Administrative Law Judge found, in fn 11 of his Decision, that in
view of the high turnover among the Company's employees Respondent
Union does not represent an uncoerced majority of Respondent Company's
employees We disavow this finding. It is a well-settled principle that new
employees are presumed to support the union in the same ratio as those
whom they have replaced Maywood Packing Company, 181 NLRB 778,
781 (1970); Laystrom Manufacturing Co, 151 NLRB 1482, 1484 (1965),
enforcement denied 359 F.2d 799 (C A. 7, 1966).
2 In the section entitled "D. The Termination of Charles Sutton" of his
Decision, the Administrative Law Judge erroneously attributed a statement
made by employee Sutton to General Foreman Murphy. The sentence
should read ". . . Sutton credibly testified that he wanted his money and
he no longer wished to work for the Respondent Company 'because . "
In the same paragraph the Administrative Law Judge also stated that Sutton
called for his paycheck on Thursday, June 10. Sutton actually called for his
check on Thursday, June 13.
agreement. The Administrative Law Judge further
found that by withholding dues and initiation fees pur-
suant to said clause Respondent Company gave unlaw-
ful assistance and support to Respondent Union in vio-
lation-of Section 8(a)(2) of the Act. Having so found,
the Administrative Law Judge recommended, inter
alia, that: (a) Respondent Company cease recognizing
Respondent Union unless and until said Union has
been certified by the Board as the exclusive bargaining
representative of the employees in an appropriate unit;
and (b) Respondents, jointly and severally, reimburse
all employees, present and former, for all dues and
other moneys unlawfully exacted from them pursuant
to the unlawful agreement for a period extending 6
months prior to the filing of the charges. The Respond-
ents contend that the recommended Order is unduly
broad and inappropriate under the circumstances of
the case. We agree.
As to (a) above, the Board has traditionally recog-
nized the appropriateness of ordering withdrawal of
recognition where, in addition to finding that the par-
ties have entered into, maintained, and enforced an
unlawful union-security clause, the Board has found
either that an employer, dominated or unlawfully as-
sisted in the establishment of the incumbent union, or
that the incumbent union did not represent an unco-
erced majority of the employer's employees at the time
of initial recognition or thereafter. Here, there is no
evidence of employer domination. Furthermore, the
validity of the Company's initial grant of recognition is
not in issue. Indeed, it is uncontested that Respondent
Union was elected by a majority of Respondent Com-
pany's Nashville, Tennessee, employees in 1936 or 1937
and that it has been their bargaining representative
since that date. Nor does the record show that the
Union does not presently enjoy the support of an unco-
erced majority of employees,3 or that any other labor
organization is seeking to represent the employees 4
Under these circumstances we find that an order re-
quiring the parties to cease maintaining or enforcing
the unlawful clause sufficiently remedies the violations
found herein and that to require Respondent Company
to cease recognizing Respondent Union as the bargain-
ing agent of its employees would be excessive and
would not effectuate the policies of the Acts
As to (b) above, we fmd the Administrative Law
Judge's recommended reimbursement order unduly
broad in the circumstances here presented. The evi-
dence shows that, pursuant to the unlawful union-
security clause, all new and prospective employees were
required to execute dues-checkoff authorizations as a
3 See fn 1, supra
4 Pantlind Hotel Company, 174 NLRB 815, 816 (1969)
5 Cf Bisso Towboat Company, Inc., 192 NLRB 885 (1971), Pantlind
Hotel Company, supra.
217 NLRB No. 180
TRUE TEMPER CORP.
condition of their employment . However, union dues
and initiation fees were not actually deducted from the
employees ' wages until after the expiration of the full
statutory 30-day grace period . Thus, except for the six
employees who sought unsuccessfully to revoke their
checkoff authorizations in May 1974 , the record fails to
disclose that any employees suffered economic injury as
a result of the unlawful union -security clause. With
respect to the six employees who the parties stipulated
attempted unsucessfully to withdraw their authoriza-
tions, we will , of course, order reimbursement. As the
only proven economic loss' is restricted to six named
employees , we will order that -the Respondents , jointly
and severally , reimburse these known discriminatees
for all dues and moneys unlawfully exacted from them
since May 1974.
As recommended by the Administrative Law Judge,
all moneys due the employees under this Order shall be
computed with interest at the rate of 6 percent per
annum in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289 ( 1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 ( 1962).
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that:
A. The Respondent Company, True Temper Corp.,
Nashville, Tennessee , its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Maintaining or otherwise giving effect to any
agreement, arrangement , understanding , or practice
which contributes support to International Woodwork-
ers of America, AFL-CIO, Local 5-379, the Respond-
ent Union, or any other labor organization, by requir-
ing prospective and/or newly hired employees to
execute membership dues-checkoff authorizations as a
condition- of employment.
(b) Discharging or constructively discharging em-
ployees or otherwise discriminating against them with
regard to hire or any other terms or conditions of
employment for refusing to comply with the terms of
an unlawful union-security clause.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the right to
self-organization, to form labor organizations, to join
or assist the aforesaid Union, or any other labor organi-
zation, to bargain collectively through representatives
of -their own choosing, and to -engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in
6 Local 60, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO [Mechanical Handling Systems] v. NL.R.B., 365 U S . 651 (1961)
1121
Section 7 of the Act, and to refrain from any and all
such activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer Charles Sutton immediate and full rein-
statement to his former position or, if such position no
longer exists , to a substantially equivalent one, without
prejudice to his senority or other rights and privileges,
and jointly and severally with International Wood-
workers of America, AFL-CIO, Local 5-379, make
him whole for any loss of earnings he may have suffered
by reason of the discrimination against him, with inter-
est at the rate of 6 percent per annum.
(b) Jointly and severally with International Wood-
workers of America, AFL-CIO, Local 5-379, reim-
burse employees Matthew Gibson, Charles Sutton,
Hardin Poynter, Dan Radley, William Smith, and Ro-
nald Wiggins for dues and other moneys unlawfully
exacted from them since May 1974 under its illegal
union-security agreement with the above-named
Union, together with interest at the rate of 6 percent
per annum.
(c) Preserve and, 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 amount of
backpay due and reimbursement of dues and other
moneys under the terms of this Order.
(d) Post at its facility at Nashville, Tennessee, copies
of the attached notice marked "Appendix A."' Copies
of said notice, on forms provided by the Regional Di-
rector for Region 26, after being duly signed by its
authorized representative, shall be posted by the Re-
spondent Company immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after , in conspicuous places, including all places where
notices to its employees are customarily posted. Rea-
sonable steps shall be taken by Respondent Company
to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Post at the same places and under the same condi-
tions as set forth in (d) above, and as soon as they are
forwarded by the Regional Director, copies of Interna-
tional Woodworkers of America, AFL-CIO, Local
5-379's notice here herein marked "Appendix B."
(f) Notify the Regional Director for Region 26, in
writing, within-20 days from the date of this Order,
what steps the Respondent Company has taken to com-
ply herewith.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The- Respondent Union, International Wood-
workers of America, AFL-CIO, Local 5-379, its offic-
ers, agents , and representatives , shall:
1. Cease and desist from:
(a) Maintaining or otherwise giving effect to any
agreement , arrangement, understanding , or practice
which causes or attempts to cause True Temper Corp.,
the Respondent Company, or any other employer, to
contribute support-to it by requiring prospective and/or
newly hired employees to execute membership dues-
checkoff authorizations for the above-named Union
as a condition of employment.
- (b) Causing or attempting to cause True Temper
Corp., or any other employer, to discharge or construc-
tively discharge employees or otherwise discriminate
against them with regard to hire or any terms and
conditions of employment for refusing to comply with
the terms of an unlawful union-security clause.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the right to
self-organization , to form labor organizations , to join
or assist the aforesaid Union, or any other labor organi-
zation, 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 as guaranteed in Section
7 of the Act, and to refrain from any and all such
activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Notify True Temper Corp. in writing, that it has
no objection to the employment of Charles Sutton and,
jointly and severally with said Employer, make him
whole for any loss of earnings he may have suffered by
reason of the disariminaton against him, with interest
at the rate of 6 percent per annum.
(b) Jointly and severally with True Temper Corp.
reimburse employees Matthew Gibson, Charles Sutton,
Hardin Poynter , Dan Radley, William Smith, and Ro-
nald Wiggins for dues and other moneys unlawfully
exacted from them since May 1974 under its illegal
union-security agreement with said Employer , together
with interest at the rate of 6 percent per annum.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
membership , dues , and other records necessary to com-
pute the moneys illegally -exacted from the employees
involved.
(d) Post at its offices and meeting hall in Nashville,
Tennessee , copies of the attached notice marked "Ap-
pendix B."8 Copies of said notice, on forms provided
by the Regional Director for Region 26, after being
duly signed by its authorized representative , shall be
posted by the Respondent Union immediately upon
8 See fn 7.
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter , in conspicuous places , including all
places where notices to members are customarily
posted . Reasonable steps shall be taken by Respondent
Union to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Post at the same places and under the same condi-
tions as set forth in (d) above, as soon as they are
forwarded by the Regional Director, copies of-True
Temper Corp.'s notice herein marked "Appendix A."
(f) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to comply
herewith.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain or otherwise give effect to
any agreement, arrangement, understanding, or
practice which contributes support to Interna-
tional Woodworkers of America, AFL=CIO, Lo-
cal 5-379, or any other labor organization, by re-
quiring prospective and/or newly hired employees
to execute a union membership dues-checkoff au-
thorization as a condition of employment.
WE WILL NOT discharge or constructively dis-
charge employees or otherwise discriminate
against them with regard to hire or any other
terms and conditions of employment for refusing
to comply with the terms of an unlawful union-
security clause.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
the right to self-organization , to form labor organ-
izations, to join or assist the aforementioned
Union , or any other labor organization , to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in
Section 7 of the Act, and to refrain from any all
such activities.
WE WILL offer Charles Sutton immediate and
full reinstatement to his former position or, if such
position no longer exists, to a substantially equiva-
lent one, without prejudice to his seniority or other
rights and privileges, and will, jointly and sever-
ally with International Woodworkers of America,
AFL-CIO, Local 5-379, make him whole for any
loss of earnings he may have suffered because of
TRUE TEMPER CORP.
the discrimination against him , together with in-
terest at the rate of 6 percent per annum.
WE WILL, jointly and severally with Interna-
tional Woodworkers of America, AFL-CIO, Lo-
cal 5-379 , reimburse employees Matthew Gibson,
Charles Sutton , - Hardin Poynter, Dan Radley,
William Smith, and Donald Wiggins for dues and
other moneys unlawfully exacted from them since
May 1974 under the unlawful union-security
agreement maintained with the above-named
Union , together with interest at the rate of 6 per-
cent per annum.
TRUE TEMPER CORP.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain or otherwise give effect to
any agreement , arrangement , understanding, or
practice which causes or attempts to cause True
Temper Corp ., or any other employer , to contrib-
ute support to us, by requiring prospective and/or
newly hired employees to execute a union mem-
bership dues-checkoff authorization as a condition
of employment.
WE WILL NOT cause or attempt to cause True
Temper Corp ., or any other employer , to dis-
charge or constructively discharge employees or
otherwise discriminate against them with regard
to hire or any other terms and conditions of em-
ployment for refusing to comply with the terms of
an unlawful union -security clause.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
right to self-organization, to form labor organiza-
tions, to join or assist this Union , or any other
labor organization , to bargain collectively through
representatives of their own choosing , and to en-
gage in other concerted activities for the purpose
of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act,
and to refrain from any and all such activities.
WE WILL, jointly and severally with True Tem-
per Corp., make Charles Sutton whole for any loss
of pay he may have suffered by reason of the dis-
crimination against him , together with interest at
the rate of 6 percent per annum.
WE WILL, jointly and severally with the True
Temper Corp ., reimburse employees Matthew
Gibson, Charles Sutton , Hardin Poynter, Dan
Radley, William Smith, and Ronald Wiggins for
dues and other moneys unlawfully exacted from
1123
them since May 1974 under the illegal union-
security clause maintained with the above-named
Company, together with interest at the rate of 6
percent per annum.
INTERNATIONAL WOODWORKERS OF
AMERICA, AFL-CIO, LOCAL 5-379
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR , Administrative Law Judge: Upon
charges, duly filed, the General Counsel of the National La-
bor Relations Board , by the Regional Director for Region 26,
(Memphis, Tennessee), issued a consolidated complaint on
August 14, 1974, against True Temper International Wood-
workers of America, AFL-CIO, Local,5-379, herein called
the Respondent Union . The complaint alleges that the Re-
spondent Company engaged in certain unfair labor practices
violative of Section 8(a)(1), (2), and (3) of the National Labor
Relations Act, as amended , herein called the Act, and that
the Respondent Union engaged in certain unfair labor prac-
tices violative of Section 8(b)(1)(A) and (2) of the Act.'
Each of the Respondents filed an answer denying the allega-
tion -of unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before me on Sep-
tember 26, 1974. Briefs were received from the General
Counsel and Respondent Company on October 30, 1974, and
they-have been carefully considered?
Upon the entire record in this, case, and from my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company is a corporation doing business
in the State of Tennessee with an office and place of busi-
ness located in Nashville , Tennessee , where it is engaged in
the manufacture of wood handles for hand tools. During
the 12 months preceding the hearing , Respondent Company
sold and shipped products from its Nashville , Tennessee,
plant valued in excess of $50,000 to points and places
located outside the State of Tennessee. During the same
period, the said facility received products and materials
valued in excess of $50,000 from points and places located
outside the State of Tennessee.
The Respondent concedes , and I find , that the Company
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
International Woodworkers of America, AFL-CIO, Local
5-379, herein called the Respondent Union, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
I The initial charge herein was filed on June 7, 1974 Further charges were
filed on June 10 and July 23, 1974
2 The General Counsel 's unopposed motion to correct the record, which
is attached to his brief, is hereby granted.
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
A. The Issues
The issues in this case are whether Respondents main-
tained and enforced an unlawful uXiion-security clause in
their collective-bargaining agreement and whether two em-
ployees were constructively and unlawfully discharged pur-
suant thereto.
B. The Unlawful Union-security Provision
Although Respondent True Temper Corp. operates ap-
proximately 21 plants in various States, the sole plant in-
volved in this proceeding is located in Nashville, Tennessee,
where it is engaged in the manufacture of wood handles for
handtools. It is undisputed that since approximately 1936 or
1937, Respondent Woodworkers Local 5-379 has been recog-
nized by the Respondent Company as the bargaining agent
for a bargaining unit described in their latest contract as "all
employees at the Nashville, Tennessee plant who are eligible
to membership in the union."
It is undisputed that from October 1, 1952, through July
11, 1974, the parties maintained and enforced the following
contractural provisions, all of which provisions were identi-
cally contained in a continuous series of collective-bargaining
agreements which were in effect during this period:
SECTION 111-CHECKOFF AND UNION MEMBERSHIP
B. Each employee who, on the effective date of this
agreement, is a member of the Union in good standing
in accordance with its Constitution and by-laws and
each employee who becomes a member after that date
shall, as a condition of employment, maintain his mem-
bership in the Union in good standing for the duration
of this Agreement; provided, however, that this provi-
sion shall not apply to any employee who, within the
fifteen (15) days next preceding the end of this agree-
ment, shall withdraw from membership in the Union.
C. Each new employee shall sign and furnish to the
Company at the time of his employment an application
card, in duplicate, for membership in the Union, in a
form agreed to in writing by the Company and the
Union. A copy of such card shall be furnished to the
employee. Such application card shall provide that it
shall not become effective until the expiration of thirty
(30) days after the date of his employment and that it
shall not thereafter become effective if such employee
shall mail to the Company a written notice of his election
not to become a member of the Union, which notice shall
be postmarked not less than fifteen (15) days and not
more than thirty (30) days after the date of his employ-
ment. The Company shall promptly furnish to the Union
a copy of each such notice received by it. If such applica-
tion shall become effective at the expiration of such
thirty (30) days, one signed copy of it shall then be
turned over to the Union. The Union shall be given
reasonable opportunity to inspect all such notices which
shall be received by the Company.
Concerning the enforcement of the above provisions, the
parties stipulated that during the period between September
26, 1973, and July 11, 1974, all prospective employees, and
each of them without exception , were advised at the time of
their application for employment with the Company by an
official of the Company that he or she must sign a union
dues-checkoff authorization card and a membership applica-
tion card in order to be considered for employment. More-
over , it was stipulated that during this period six employees
were unsuccessful in their endeavor to revoke their member-
ship applications and dues-checkoff authorizations because
they had not literally complied with the contract 's notice
requirements . ' Thus, and as reflected above, section III of
the contract provides, interalia, that the employee must mail
any notice of any checkoff revocation to-the Company. In the
case of the six employees , it is undisputed that each of them
hand delivered written notices requesting revocation of their
respective previously signed dues -checkoff authorization
cards to an official of the Company. On the basis of this
technicality , the Respondent Union by letter dated May 10,
1974, advised the Company "not [to] honor [the] notices until
they are done in accordance with the contract ." Pursuant to
this request , it is undisputed that the Company did not honor
the six attempted dues-checkoff revocations in question.
Turning to my conclusions , I think it clear, and I find, that
the contract 's proviso (subsec. C, sec. III) which requires
each new employee to sign and furnish to the Company at the
time of his employment an application for union membership
exceeds the permissive bounds of a union -security clause as
provided in Section 8(a)(3) of the Act. Thus, in finding it
unlawful to require employees to signify their intention of
joining a union within 30 days of their - employment, the
Board in Argo Steel Construction Company, (Local 25,
International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO), 122 NLRB 1077, 1082
(1959), stated in pertinent part as follows:
By their terms, articles 2(f) and 3 in part require that
new employees who are nonunion members must signify
their intention of joining the union within 30 days of
their employment. There is nothing in the Act which
sanctions such a provision. The Act legalizes, as a maxi-
mum, union-security provisions which require em-
ployees to join unions on or after the thirtieth day fol-
lowing the beginning of their employment. The instant
provisions enlarge upon the maximum sanctioned by the
Act. Under them, persons who may be unwilling to sig-
nify an advance intent to join the union cannot be em-
ployed. The Act requires no such signification of ad-
vance intent; it gives employees 30 days of employment
before they can be compelled to make a choice.
The fact that the contract in the instant case provides a
type of escape clause (which the evidence cited above reflects
was stringently enforced) is immaterial. Aside from the fact
that the contract-unlawfully requires employees to sign an
application for membership as a condition of employment,
Respondents could not validate this requirement by putting
3 Although the stipulation of the parties refers to the employees signing
a membership application and a dues-checkoff card, it appears that they only
signed a checkoff card, which is in evidence In any event, under the provi-
sions of the contract it appears that the dues-checkoff card was considered
also to be application for membership.
TRUE TEMPER CORP.
the onus upon the employees to revoke their previously ex-
ecuted union membership applications and/or dues-checkoff
authorizations during the last 15 days of their initial 30 days
employment period.
I find that by the aforesaid contract provisions, by the
enforcement thereof and by the hiring practice pursuant
thereto, Respondent Company violated Section 8(a)(3) and
(1) of the Act and Respondent Union violated Section
8(b)(1)(A) and (2) of the Act. I further find, as alleged in the
complaint, that by withholding from the wages of its em-
ployees dues and initiation fees of Respondent Union in ac-
cordance with the dues-checkoff authorizations which it ob-
tained from its employees pursuant to the aforesaid unlawful
union-security provisions, the Respondent Company gave
unlawful assistance and support to the Respondent Union in
violation of Section 8(a)(2) of the Act.
C. The Termination of Matthew Gibson
The complaint alleges that the Respondent Company con-
structively discharged Matthew Gibson on June 7, 1974, be-
cause it enforced the aforenoted unlawful union-security con-
tract provisions and because Gibson refused to become or
remain a member of the Union.
Gibson was hired by the Company on April 4, 1974, and
started work on the following day. On the day of his hire he
was interviewed by J. C. Murphy, the general foreman, who
at that time provided him with a union dues-checkoff authori-
zation card. In accordance with the contract and the hiring
procedure followed by the Company, as described in the
preceding section, Gibson was required to sign the checkoff
card at this time.
Gibson testified without contradiction that several days
later his foreman, John Crutchfield, told him that although
there was a union at the plant, he did not have to join it if
he did not wish to do so. According to Gibson, the foreman
explained that he could accomplish this by so stating in a
letter within 15 to 30 days, and that if he (Gibson) would give
him a letter to this effect he would take it to the office. On
or about April 11, Gibson handed the -following written
notification to Crutchfield:
April 18, 1974 Nashville, Tenn.
To Whom It May Concern,
I do not wish to join the Union at this time.
Matthew Gibson
Although the above notice was transmitted by the Com-
pany to the Union, it is undisputed that the Union subse-
quently requested the Company not to honor Gibson's notice
and that the Company, pursuant thereto, failed and refused
to do so.4
4 The letter from Respondent Union to Respondent Company concerning
Sutton's request and similar requests from five other employees is dated
May 10, 1974, and stated in its entirety as follows:
1125
Turning to the events preceding Gibson's termination on
Friday, June 7, Sutton testified that he worked until noon on
Monday, June 1. He further testified that at about 12 p.m. on
that date he obtained permission to leave the plant and go
home.5 The reason for this, he said, was to repair broken
windows in his apartment which had been vandalized. It is
undisputed that Gibson did not report to work on the follow- T-
ing 4 days. He testified that on the Tuesday and Wednesday
of these days- his wife called the plant at about 7 a.m. and
advised that he would not be in because of personal problems.
He did not know to whom she spoke. He testified that he
called the plant on Thursday, June 6, and told a custodian
that he would not be in that day for the same reason.
The fourth day was Friday, June 7. Gibson did not call in
that day but came to the plant at about 1 p.m. concededly for
the sole purpose of picking up his paycheck. I relate first
Sutton's version of what transpired at this time. Thus, accord-
ing to Sutton, he first came to the office and spoke to a
secretary about his check. The secretary obtained his check
and asked that he sign a paper, which he did. She said that
she was not authorized to give him the check, that only a
supervisor could do so. At this point a foreman named Paul
happened to be in the office. The secretary handed Paul the
check and Paul gave it to him. Looking at the check, he
immediately noticed that $17 had been deducted from his
wages. When he raised a question, the-secretary advised that
the Union had requested the Company to disregard his notice
of April 18 and to deduct his dues. The foreman remarked
that the Union had the Company tied and that nothing could
be done about it. According to Gibson, he thereupon stated,
"Well, I quit then," whereupon he left the office. Gibson
thereupon sought out Union President Potter and asked him
about the dues deduction from his paycheck. Potter told him
"it was in the contract" and showed him the contract.6 Ac-
cording to Gibson, he was on his way out of the plant when
he encountered Murphy. He said he asked Murphy why the
money had been deducted and that Murphy responded that
it had been done pursuant to the contract. With this, he
testified, he told Murphy, "Well, I quit. I'm gone," and
thereupon left the plant.
General Foreman Murphy gave a different version con-
cerning the entire circumstances of Gibson 's termination.
Thus, according to Murphy, Gibson had been scheduled to
In accordance with the notification of Mr Don Cowen that the below-
listed emplyees had given notice to the company that they were desir-
ous of rejecting then check-off authorizations, this is to advise you that
these notifications are not in accordance with Section 3-Checkoff and
Union Membership, sub-section (c), of the current agreement between
the True Temper Corporation , the International Woodworkers of
America and its Local 3-379; and it is our request that yon do not honor
these notices until they are done in accordance with the contract
EMPLOYEES
1 Matthew Gibson
2 Charles Sutton
3 Hardin Poynter
4 Dan Radley
5. William Smith
6 Ronald Wiggins
5 Gibson testified he could not remember from whom he obtained such
persmission, but that he "thought" it was Murphy.
6 Gibson testified that this was the first time he saw the contract.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work on Saturday, June 1, but failed to report to work that
day. Contradicting the testimony of Gibson, Murphy testified
that Gibson also did not work at any time the following
Monday. He further testified that he received no report of
Murphy's calling in during the following 3-1/2 days when
Gibson admittedly was absent. Accordingly, since the com-
pany rules provide that an employee is considered to have
voluntarily quit after 5 days of unreported absence, he pre-
pared a termination slip at about 9 a.m. on June 7. A nota-
tion, which he said he placed on the slip at this time, states,
"Employee consider voluntarily quit after five days of un-
reported absence." Upon being apprised around noon on
June 7 that Gibson was in the office to pick up his check, he
[Murphy] went to the office to give Gibson his check and
have him sign the termination slip. Murphy testified that
Gibson signed the termination slip at which time he gave him
the check and also advised Gibson that he had been dropped
because of continued absence. He said Gibson at this point
stated, "you mean a man can 't be out a few days and come
back to work." whereupon he told Gibson that he had been
provided with a copy of the Employee Guide setting forth the
company rules when he was hired.
Upon the entire record, from my observation of the wit-
nesses, including the plausibility of their testimony, I am
persuaded and find that Murphy gave the accurate version
concerning the circumstances of Gibson's termination. Thus,
on cross-examination, Gibson conceded signing a paper
before receiving his paycheck. Although Gibson testified that
he did not read the slip, I have no doubt at all but that this
was the separation notice referred to by Murphy.' As pre-
viously noted, this document states on its face that the reason
for Gibson's termination was his unreported absences. It is
clear, therefore, that Respondent Company had determined
to terminate Gibson, and that it in fact did so, prior to the
occasion of Gibson's ascertaining from the check, which he
received after signing the termination slip, that $17 union
dues had been deducted therefrom. In short, I find that Gib-
son did not quit his job on June 7, but rather that he was
terminated at this time in the manner and for the reason
testified to by Murphy.' Accordingly, I find that the Gen-
eral Counsel has not established that Murphy was construc-
tively discharged in violation of the Act. It is recommended
that this allegation be dismissed.
D. The Termination of Charles Sutton
Sutton, simultaneously with Gibson, was interviewed by
Murphy on April 3, 1974, and reported to work the following
day. He signed a union dues-checkoff authorization card on
April 3 in accordance with Murphy's instructions that he
must do so before he would start work. He was also told by
Murphy at this time that he could write a letter saying that
he did not want to join the Union and bring it to him, but that
7 This document (Emp. Ex I) bears Murphy's signature and was received
in evidence without objection.
B For the record it may be noted that Murphy acknowledged speaking to
Gibson for a second time on June 7 Thus, Murphy credibly testified that
short ly after speaking to Murphy in the front office, he encountered Gibson
again when he went out to the yard According to the credited testimony
of Murphy, Gibson at this time inquired about the dues having been de-
ducted from his check, at which time he responded that there was nothing
he could do about it.
the dues would automatically be deducted if he did not do so
within the alloted period of time.
On April 11, Sutton gave Murphy the following handwrit-
ten note:
To Whom It May Concern,
I would-prefer not to join the Union at this time. I'm in
bad shape for money and right now I just can't afford it.
Thank you very much.
Charles Sutton
On May 10, Respondent Union advised Respondent Com-
pany by letter not to honor Sutton's request. (See f. 4 for this
letter in its entirety). Parenthetically, it may be noted that
although Sutton merely stated that he did not wish to join the
Union, the Union's letter of May 10 makes it clear that
Respondent Union treated this as an attempted revocation by
Sutton of his previously executed dues-checkoff authoriza-
tion.
In the latter-part of May, Sutton was advised by Jim Dan-
iels, the secretary-treasurer of the Union, that the Union had
disregarded the request made in his letter of April 11. Sutton
testified without contradiction that he went to see Murphy
and told him of his conversation with Daniels- Murphy ad-
vised that the Union was taking out his dues on a technicality
and that instead of bringing him the letter he should have
mailed it to the Company. Murphy thereupon showed Sutton
the relevant provisions in the contract. Sutton credibly testi-
fied that this was the first time he saw the contract. After his
conversation with Murphy, Sutton spoke to Union President
Potter, who was employed at the plant. When Sutton asked
Potter why the Union disregarded his letter, Potter gave him
much the same answer as did Murphy.
On Friday, June 7, Sutton was given his paycheck and at
this time observed that $17 had been deducted from his pay.
He immediately sought out Murphy and apprised him that he
wanted the $17 returned to him. Murphy told him there was
nothing he could do about it, that he should take it up with
the Union. Sutton thereupon protested to Jim Daniels, but to
no avail.
Sutton worked on Monday, June 10, but did not report to
work the following 3 days. However, on Thursday, June 10,
he called Murphy and asked if he could have his check a day
early. When Murphy asked why, Sutton replied that he had
another job and wished to pick his check up a day early.
Murphy told him to check with him later. Murphy in fact had
not acquired another job at this time, although he testified
that he was looking for other work during the period he was
off. When asked why he advised Murphy he had another job,
Murphy credibly testified that he wanted his money and that
he no longer wished to work for the Respondent Company
"because after the way he took my -money like that
[referring to the dues deduction] I didn't want to work for
him any longer." Sutton ultimately went to the plant and
received his check on Friday, June 14. At the same time
Murphy handed him a separation slip, which Sutton signed,
stating as the reason for his separation: `Employee called this
date 6-13-74 and wanted his check, said he was starting a
TRUE TEMPER CORP,'
new job tomorrow' 6-14-74 and would not be returning to
True Temper."
Turning to my 'conclusions, I have related above Sutton's
testimony that he no longer wished to work for the Company
because of the fact that union dues had been deducted from
his pay. I credit this testimony.9 Indeed, the fact that Mur-
phy protested this action to company and union officials
immediately upon becoming apprised thereof is further sup-
portive that this indeed was the reason for his leaving the
Respondent Company's employ. The fact that he told the
Company he had another job, although he did not, is im-
material. Unlike the case of Gibson who was terminated for
cause and whose termination had been effected prior to his
even having any choice of quitting or remaining on the job,
I find that Sutton quit his job with Respondent Company
because of his unwillingness to accept the illegal condition of
employment which had been imposed upon him. Accord-
ingly, and in view of his quitting under the illegal conditions
thus imposed, I find, as alleged in the complaint, that Sutton
was constructively discharged in violation of Section 8(a)(1)
and (3) of the Act. As in an analogous case, John B. Shriver
Company. t0 I further find that having participated in the
creation of conditions which resulted in the actual discrimina-
tion against Sutton, the Respondent Union must be deemed
to have caused such discrimination in violation of Section
8(b)(2) of the Act, as alleged in the complaint, and thereby
also to have restrained and coerced employees in their rights
guaranteed by Section 7 in violation of Section 8(b)(1)(A)
of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the operation of Re-
spondent Company described in section I, above, have a
close, intimate, and substantial relationship 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 Company and the Re-
spondent Union have engaged in certain unfair labor prac-
tices, I shall recommend that Respondents cease and desist
therefrom and take certain affirmative action designed to
effectuate the purposes of the Act.
Having found that the Respondent Company violated Sec-
tion 8(a)(2) and (1) of the Act by maintaining and enforcing
an unlawful agreement with Respondent Union, thereby giv-
ing it assistance and support, I shall recommend that it cease
and desist maintaining and enforcing its unlawful agreement
with the Respondent Union and that it withdraw and with-
hold recognition from the Respondent Union unless and until
the Respondent Union shall have been certified by the Board
as the exclusive representative of the employees in an appro-
priate unit. I have also found that the Respondent Union, by
maintaining and enforcing the aforesaid agreement, violated
Section 8(b)(1)(A) and (2) of the Act." In order to fully
9 Elsewhere in the record, Sutton again testified that he quit this job with
Respondent Company because of the dues being deducted.
10 103 NLRB 23 (1952 ) See also cases cited therein.
1127
remedy the unfair labor practices found herein, and to estab-
lish an atmosphere in which the employees may exercise the'
right to select or reject the bargaining representative, I shall
recommend that the Respondents jointly and severally reim-
burse all employee's, present and former, for dues and other
moneys unlawfully exacted from them as a result of the afore-
said unlawful agreement, by reimbursing all such employees
for all such dues and moneys paid or withheld from` them
with interest since December 7, (which is 6 months prior to
the filing of the first charge herein) computed in the manner
set forth in Seafarers International Union of North America
Great Lakes District, AFL-CIO, 138 NLRB 1142 (1962).
It having been found that the Respondent Company on
June 12, 1974, discriminated with regard to the hire and
tenure of employment of Charles Sutton in violation of Sec-
tion 8(a)(1) and (3) of the Act and that the Respondent Union
caused said Company to do so in violation of Section 8(b)(2)
and (1)(A) of the Act, it will be recommended that the Re-
spondent Company be ordered to offer Charles Sutton im-
mediate reinstatement to his former or substantially equiva-
lent position without prejudice to his seniority and other
rights and privileges and that the Respondents, jointly and
severally, be ordered to make him whole for any loss of pay
he may have suffered, by paying him a sum of money equal
to that which he normally would have earned as wages from
the date of the discrimination to the date of the Respondent
Company's offer of reinstatement, less his net earnings during
said period, plus interest at 6 percent per annum as prescribed
in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
In view of the nature and extent of Respondents' unfair
labor practices, I find it necessary, in order to effectuate the
purposes of the Act, to recommend that Respondents cease
and desist from infringing in any other manner upon the
rights guaranteed to employees by Section 7 of the Act.
CONCLUSIONS OF LAw
1. The Respondent Company, True Temper Corp., is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Respondent Union , International Woodworkers of
America, AFL-CIO, Local 5-379, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By assisting and contributing support to the Respondent
Union , and thereby also interfering with , restraining, and
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondent Company has engaged
in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(2) and (1) of the Act.
11 Since the record clearly reflects that there is a large turnover among
the Company's employees, I have no doubt, in view of the enforcement of
the unlawful union-security clause, that Respondent Union does not repre-
sent an uncoerced majority of the Respondent Company employees. Never-'
theless, I do not believe, as the General Counsel urges, that disestabhshment
of the Respondent Union is warranted
On the other hand, whether or not the unlawful provisions were enforced
after July 1974, I still deem the above remedial action necessary to effectu-
ate the policies of the Act. For analogous cases, i.e., where the Board
deemed it necessary to issue a remedial order notwithstanding that unlawful
no-solicitation rules had been corrected subsequent to the filing of unfair labor
practice charges, see Ostby and Barton Co , 202 NLRB 199,
201-202 (1973), and cases cited therein.
1128 DEC[SIONS OF NATIONAL LABOR RELATIONS BOARD
4. By entering into and giving effect to an agreement condi-
tioning the hire and - tenure of employees of the Respondent
Company upon membership and dues payments to the Union
in contravention of Section 8(a)(3) of the Act, Respondents
have engaged in and are engaging in unfair labor practices,
the Respondent Company within the meaning of Section
8(a)(3) and (1) of the Act, and the Respondent Union within
the meaning of Section 8(b)(2) and (1)(A) of the Act.
5. By constructively discharging Charles Sutton on June
13, 1974, the Company has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
6. By causing and attempting to cause the Respondent
Company to discriminate against Charles Sutton in violation
of Section 8(a)(3) of the Act, the Respondent Union has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(b)(2) and (1)(A) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. The Respondents have not engaged in discrimination
with respect to the tenure of Matthew Gibson's employment,
as alleged in the complaint.
[ Recommended Order omitted from publication.]