Bedford Can Manufacturing Corp.

National Labor Relations Board - Board Decisions

Feb 3, 1967

162 N.L.R.B. 1428 (N.L.R.B. 1967)

142S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred to another job at her own request for lack of work. At another
station, the production records are kept by computers, thereby elimi-
nating the need for a plant clerk there.
An undisclosed number of clerk typists were shown to be employed
in the power stations and in the general offices of VEPCO. Those
employed in the power stations serve as switchboard operators and
receptionists, do most of the typing of various reports, requisitions,
memoranda, and keep certain simple records. It was stipulated at the
hearing that, with one exception, all clerk typists are properly
included in the unit represented by UEA. The one exception was the
statistician at the Bremo plant who was a clerk typist prior to her
promotion to the job she now holds. IBEW contends that even though
she was in the clerical unit as a clerk typist she should have been in
the unit represented by IBEW because the statisticians and the clerk
typists, in the plants, although performing separate duties, are each
performing the work that was formerly done by the plant clerks who
were in the IBEW unit.
As indicated, the record shows that the classifications in question
were in existence prior to the certification of IBEW's predecessor in
1946. Notwithstanding the latter's contention that they should be
included within its unit, those categories were held to be within the
unit for which UEA's predecessor was soon thereafter certified, which
unit has since been represented by UEA and its predecessor. The rec-
ord further reveals that there has been no substantial change in the
nature of the duties of the disputed categories. Under these circum-
stances, the IBEW cannot now, by way of this motion for clarification
of its certification, add these classifications to its unit.3 Accordingly,
we shall dismiss the petition.
[The Board dismissed the petition to amend and clarify
certification.]
3 Cf Lapp Insulator Co, Inc, 150 NLRB 596; Douglas Aircraft Company, Inc, 143
NLRB 592 , 595-590
Bedford Can Manufacturing Corp. and Local 810, Steel, Metals,
Alloys and Hardware Fabricators and Warehousemen, Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America and Allied Trades Union, Local 18,
Party to the Contract . Case 29-CA-450. February 3, 1967
DECISION AND ORDER
Upon a charge duly filed on November 4, 1965, by Local 810, Steel,
Metals, Alloys and Hardware Fabricators and Warehousemen , Inter-
162 NLRB No. 133.
BEDFORD CAN MFG. CORP. 1429'
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and_
Helpers of America, the General Counsel for the National Labor
Relations Board, by the Regional Director for Region 29, issued a
complaint on March 15, 1966, against Bedford Can Manufacturing
Corp., herein called the Respondent, alleging that it had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8(a) (1) and (2) of the National Labor Rela-
tions Act, as amended. Copies of the complaint, the charge, and
notice of hearing were duly served upon the Respondent and upon
Allied Trades Union, Local 18, Party to the Contract, and upon the
Charging Party.
The complaint alleges, in substance, that by continuing to deduct
union membership dues under employee checkoff authorizations after
revocations of such checkoff s and membership resignations following
union deauthorization, the Respondent has interfered with the Sec-
tion 7 rights of its employees in violation of Section 8(a) (1), and
has rendered unlawful assistance and support to a labor organization
and contributed financial support to it in violation of Section
8(a) (2). The Respondent filed an answer admitting the allegations
in part and denying them in part.
On June 21 , 1966, all parties entered into a stipulation in which
the parties waived their rights to a hearing and to the issuance of a
Trial Examiner's Decision. In view thereof, the parties stipulated
that the entire record of this proceeding shall consist of the stipula-
tion, the charge, the complaint, and the answer.
By an order issued on June 27, 1966, the Board approved the afore-
said stipulation , and transferred the matter to the Board.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel.
Upon the basis of the aforesaid stipulation and the entire record
in this case , including the briefs of the Respondent , and the General
Counsel, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Respondent has its principal office and place of business at
263 Classon Street in the Borough of Brooklyn, New York, where it
is engaged in the manufacture, sale, and distribution of tin cans and
related products '. It annually ' sells and ships goods valued at more
than $50,000 directly to ' customers' located outside the State of New
Fork. 'During the same period , Respondent has received goods and
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
materials valued in excess of $50,000 transported to its place of busi-
ness in interstate commerce directly from States of the United States
other than the State of New York:
H. THE LABOR ORGANIZATIONS INVOLVED
Allied Trades Union, Local 18, Party to the Contract, is a labor
organization within the meaning of Section 2(5) of the Act. Local
810, Steel, Metals, Alloys and Hardware Fabricators and Warehouse-
men, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, the Charging Party, is a labor
organization within the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
At all times since on or about November 1, 1960, Respondent and
Local 18 have maintained collective-bargaining agreements contain-
ing a union-security clause and checkoff provisions. The most recent
contract containing such provisions is effective from November 1,
1964, to November 1, 1967. Both before and after November 1960,
Respondent's employees executed checkoff authorizations, revocable
not less than 30 days nor more than 60 days before any anniversary
date or on the termination date of the collective-bargaining agree-
ment, "whichever occurs sooner."
On September 9, 1965, a deauthorization petition was filed seeking
to withdraw the authority of the Union to require membership as a
condition of employment in the bargaining unit. An election was
held on October 13 wherein a majority of eligible employees voted
to rescind the Union's authority to require membership as a condition
of employment. On October 21, the Regional Director issued a certi-
fication of results of the election to that effect. On the same day, the
following petition signed by 13 employees was addressed to the
Respondent :
Please be advised that we do not wish you to deduct any monies
for dues for Local 18, Allied Trades Union and this Union is no
longer authorized to represent us, having been deauthorized by
the National Labor Relations Board.
This petition was received on November 1 by Respondent, which in
turn notified the Union. Thereafter, on January 24, 1966, 12 employ-
ees sent identical letters to the Respondent and the Union in which
the employees resigned from the Union and notified both Respondent
and the Union to cease deducting dues and initiation fees from their
wages. Nevertheless, since November 1, 1965, Respondent has con-
tinued to deduct dues and initiation fees on behalf of the Union from
the wages of its employees and has deposited the money in a joint
BEDFORD CAN MFG. CORP. 1431
account in a savings bank under the name of Respondent's and the
Union's attorneys pending final determination of this matter.
In Penn Cork 1 the Board held that an employer violates Section
8(a) (1) and (2) by continuing to deduct membership dues, pursuant
to valid checkoff authorizations which were executed during the exist-
ence of a union-security clause, from the pay of individual employees
who resigned from the union and revoked their checkoff authoriza-
tions after a majority of the employees rescinded the authority of
the union to require union membership as a condition of employment.
The Board regarded the checkoff authorizations as an implementation
of the existing union-security provisions of the contract and held
that when the union-security provisions were canceled by an affirma-
tive deauthorization vote, such checkoff authorizations became vul-
nerable to revocation regardless of their term. The Board observed
that it would not infer that the employees who authorized the check-
off would have done so apart from the existence of the union-security
provision at the time such authorizations were given.
The Respondent concedes that the instant case resembles Penn Cork
with respect to those employees who signed checkoff authorizations
when the union-security clause was in effect and who subsequently
resigned their membership in the Union and attempted to revoke
their checkoff authorizations by sending the January 24 letters. But
with regard to the October 21 petition, the Respondent maintains
that this document cannot be considered an attempt to resign from
the Union, and therefore under Penn Cork it has no legal significance.
Respondent further contends that Penn Cork does not apply to
employees who signed checkoff authorizations when there was no
existing union-security clause in effect. Hence, Respondent urges that
the Penn Cork principle does not govern the deductions for the four
employees who signed checkoff cards before the first union-security
contract of November 1960, or for the employee who signed his check-
off authorization after the October 13 deauthorization election but
prior to the certification of results.
We reject these contentions. While the facts in Penn Cork required
the Board only to deal with checkoff authorizations executed when a
union-security contract clause became effective, the same principle is
applicable where, as here, such authorizations are permitted to renew
during the existence of a series of contracts continuing a union-
security provision. Both must be viewed as an implementation of the
union-security provision. We will not infer in such a situation that,
absent the compulsion of the union-security clause, the employees
would have acquiesced in the renewal of their checkoff authorizations.
1 Penn Cork & Closure8, Inc., 156 NLRB 411.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hence, we find that following the successful deauthorization vote,
the outstanding checkoff authorization maintained by employees
while the union-security clause was in effect could have been revoked
regardless of their terms or when such authorizations were initially
executed.2 Further, so long as the intent to cancel the existing check-
61T authorization was clear, there was no need that such revocations
be stated in any particular form. In our view, the petition of
October 21 clearly conveyed the intent and was adequate for revoca-
tion purposes.
Accordingly, based on the record before us and for the reasons
stated above, we find that by continuing to deduct union membership
dues and initiation fees after revocation of checkoff authorizations 3
following withdrawal of the Union's authority to'require membership
as a condition 'of employment, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act, in violation of Section
8(a) (1) of the Act, and has rendered unlawful assistance and sup-
port and contributed financial support to a labor organization, in vio-
lation of Section 8(a) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in section III, above,
occurring in connection with the operations described in section I,
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act.
The record reveals that Respondent's employees attempted to
revoke their checkoff authorizations on October 31, 1965, and Janu-
ary 24, 1966. Although most of the employees undertook to do so on
both dates, some executed only one or the other of such documents.
As set out above, Respondent first received notice of such revocations
9 Since a contract union -security provision is not fully suspended until the affirmative
result of the deautborization election is certified by the Regional Director, the employee who
signed his authorization after the election but prior to the certification was still subject to
such provision See Monsaizto Chemical Company , 147 NLRB 49 , 51. Accordingly , we see no
reason for disposing of his revocation of checkoff in any different manner
8 While the facts in Penn Cork indicate that the employees resigned from the union, we
do not deem such resignation to be a prerequisite to revoking a checkoff authorization.
BEDFORD CAN _MIFG. CORP. 1433
on November 1, in the form of the petition, but nevertheless con-
tinued to deduct dues and initiation fees on behalf of the Union and
deposited such funds in a joint account in a savings bank under the
names of Respondent's and the Union's attorneys pending final
determination of this matter. The Parties stipulated that the money
was earning interest at 4i% percent compounded quarterly, and
according to Respondent, such interest has been increased to 5 per-
cent on July 1, 1966. Respondent urges that if the Board finds a vio-
1aLion, the reimbursement portion of the Order should be limited to
the payment of interest actually earned, and not at the 6-percent
rate utilized in Penn Cork. No opposition thereto is advanced.
Under these circumstances, and, as the Board's order is remedial
rather than punitive, we shall order the Respondent to reimburse all
present and former employees, who after union deauthorization
attempted to revoke their checkoff authorizations, for all sums in
payment of union dues and initiation fees improperly deducted from
their wages following the first notice of such cancellation, together
with interest actually earned.
The Board, upon the basis of the foregoing facts and the entire
record, makes the following :
CONCLUSIONS OF LAW
1. Bedford Can Manufacturing Corp., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Allied Trades Union, Local 18, is a labor organization within
the meaning of the Act.
3. By continuing to deduct union membership dues and initiation
fees pursuant to checkoff authorizations maintained by individual
employees during the existence of a union shop contract, after the
employees had attempted to revoke their checkoff authorizations fol-
lowing an affirmative deauthorization election, the Respondent has
violated Section 8(a) (1) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Bedford Can Manufacturing Corp., Brooklyn, New
York, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Continuing to deduct union membership dues and initiation
fees pursuant to checkoff authorizations maintained by individual
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees during the existence of a union shop, after an affirmative
union deauthorization vote has been held and said employees have
attempted to revoke their said checkoff authorizations.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Reimburse all present and former employees who signed
checkoff authorizations, and, who, after union deauthorization, at-
tempted to revoke their dues and initiation fees checkoff authoriza-
tions, for all sums improperly deducted from their wages in pay-
ment of union dues and fees in the manner set forth in the section
above entitled "The Remedy."
(b) Post at its plant in Brooklyn, New York, copies of the at-
tached notice marked "Appendix." 4 Copies of said notice, to be fur-
nished by the Regional Director for Region 29, after being duly
signed by the Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
6 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 "a Decision and Order" the words "a Decree of
the United States Court of Appeals Enforcing an Order."
APPENDIX
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 you that :
WE WILL refund to all present and former employees who
signed checkoff authorizations, and, who, following union deau-
thorization, attempted to revoke such authorizations, all sums
improperly deducted from their wages in payment of union
dues and initiation fees.
WE WILL NOT continue to deduct union membership dues and
initiation fees under the foregoing circumstances, and WILL NOT
PHIL-MODES INC. 1435
in any like or related manner interfere with, restrain , or coerce
employees in the exercise of rights guaranteed them by Section
7 of the Act.
BEDFORD CAN MANUFACTURING CORP.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material. Employees may communicate directly with the
Board's Regional Office, Fourth Floor, 16 Court Street, Brooklyn,
New York 11201, Telephone 596-5386.
Phil-Modes Inc., and Harold Berlin d/b/a Berlin Coat Manufac-
turing Co and International Ladies ' Garment Workers' Union
AFL-CIO. Case 16-CA-2661. February 6,1967
DECISION AND ORDER
On November 3, 1966, Trial Examiner William W. Kapell issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Respondent filed exceptions to the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Jenkins, and Zagoria].
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 Trial
Examiner's Decision, the exceptions, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
162 NLRB No. 136.