Cyclops Corp.

National Labor Relations Board - Board Decisions

Mar 4, 1975

216 N.L.R.B. 857 (N.L.R.B. 1975)

CYCLOPS CORPORATION, TEX-TUBE DIVISION 857
Cyclops Corporation , Tex-Tube Division and United
Steelworkers of America , AFL-CIO. Case 23-
CA-5182
March 4, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On November 29, 1974, Administrative Law Judge
Melvin J . Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ISSUES , FACTS, AND DISCUSSION
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by soliciting its employees, in writing, to
withdraw their membership and support from the Union,
and by requiring its employees to notify the Company
whether they wished to retain or withdraw their member-
ship in the Union.
The facts are not in dispute. On January 2, 1974, a union
strike against Respondent , the first strike in a 13-year
bargaining history, ended. The Union thereafter began
disciplinary action against certain members who had
crossed its picket line. Some 13 employees consulted with
Wylie, the Company's manager of industrial relations,
requesting information on withdrawal from their checkoff
authorizations.' On April 5, 1974, the Company included
in the pay envelopes of all bargaining unit employees a
notice reading as follows:
We have had inquiries regarding withdrawal mem-
bership from Local Union 6635.
The Checkoff Authorization you signed allows you
to withdraw your membership only 15 days following
the anniversary date in which you signed the Checkoff
card or 15 days following the expiration of the Labor
Agreement. You will be notified of your anniversary
date.
If you do withdraw, be sure to notify the Company
so that your deduction of dues will be stopped.
Beginning the same day , April 5, 1974, the Company
began sending form letters to the unit employees on or
about the anniversary date of each employee's membership
in the Union. These letters, with each containing the
appropriate dates where the blanks are indicated, were as
follows:
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Houston, Texas, on September 26, 1974,
based on charges filed July 16, 1974 , and a complaint
issued August 5, 1974, alleging that Respondent violated
Section 8(a)(1) of the Act. The Charging Party and the
Respondent have filed briefs.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent , a Delaware corporation, is engaged in the
manufacture of steel and plastic pipes and related products
at its principal office and place of business in Houston,
Texas . During the past year, it shipped products valued in
excess of $50,000 from its Houston , Texas , plant to points
outside the State of Texas . I find, as Respondent concedes,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The Union is a
I These consultations occurred shortly after March 25 , when the
employees apparently received a notice from the Union of charges against
216 NLRB No. 157
Your anniversary date of membership in the Union
is-----. Should you desire to withdraw from the
Union, you will have to do it between----- and-
The Company must be notified of your decision so
we will know whether or not to continue deducting
union dues (24 hours pay per year) from your
paycheck.
The General Counsel and the Charging Party allege that
the April 5 notice and the form letters sent to the
employees constituted a violation of Section 8(a)(1) of the
Act because of the general principle that an employer may
not solicit its employees to withdraw from union member-
ship, and because toe employees were required to notify
the Company if they did withdraw, and therefore were
being polled annually as to their continued support of the
Union. The Charging Party also urges, as an additional
basis for finding a violation here, the Company's "host-
ility" toward the Union, allegedly demonstrated by the
them arid that "it was the ratification of membership present to find the
members gamed guilty of the charges named."
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"hard and bitter" strike , and by the contentions of the
parties taken at an arbitration proceeding arising from
certain discharges during the strike , and from alleged
superseniority being given strike replacements.
The General Counsel 's argument, interestingly , cites only
one case, Perkins Machine Co., 141 NLRB 697 ( 1963), on
which , the General Counsel asserts, "Respondent will
undoubtedly rely,"2 and proceeds to distinguish this case
from Perkins. A substantial portion of the Charging Party's
brief is also devoted to distinguishing Perkins, but the
Charging Party does cite other cases , where the Board
found a violation, as supporting the complaint's allegations
here.
In Perkins, the contract between the company and the
union ran from August 23, 1961, to August 22, 1964,
provided for maintenance of membership and deduction of
dues from wages of union members, and further provided
for a 15-day escape period annually, to allow employees to
withdraw from the union and revoke their checkoff
authorizations . Shortly before the beginning of the 1962
"escape period ," the company sent each union member a
letter , pointing out the contract's escape period provision
and dates , that the employees who wished to resign from
the union could do so only during that period , or wait
another year, and telling employees that if they do want to
resign from the union they "should date and sign two
copies of the enclosed letter addressed to the Company and
the Union," 3 and mail them in enclosed envelopes. The
covering letter pointed out that "The decision is yours to
make," and went on to state that the company only wanted
the employees to understand their rights and privileges,
was not urging employees either to remain members of or
resign from the union, and the employees ' determination
would not affect his "wages, benefits, position or treatment
by the Company."
The Board, in concluding that Perkins did not violate the
Act by the letter referred to, stated that it "acted lawfully
in bringing to the attention of its employees their
contractual rights to resign from the Union and to revoke
their dues deduction authorization." The Board adverted
to, as significant , the fact that the communication was
"free from any threat of reprisal or promise of benefit,"
and went on to point out its recitation of the employees'
rights and of the company's neutral position. For those
reasons, and "in the absence of any other evidence of
coercion ," the Board found that the communication,
"standing alone," was not violative of Section 8(aXl) of the
Act.
I have gone into the facts of Perkins in this detail in order
to consider and evaluate the contentions of the General
Counsel and the Charging Party that, as the Charging
Party puts it, "the case under consideration contains
important factual differences which require a different
result than that reached by the Board in the Perkins case."
These "differences" include the fact that Respondent sent
,.an early warning letter" to each individual, and that the
letter contained a "command" to the employee to notify
the Company of his decision . Further, the individual
solicitation constitutes a form of interrogation, as it
requires notification to the Employer , and therefore a
disclosure of the employee 's union preferences, on a
continuing basis . This is particularly true, assert the
General Counsel and the Charging Party, in the absence of
any assurances of neutrality of the kind the employer in
Perkins gave . The General Counsel also sees significance in
the fact that the notice and the letters spoke of withdrawal
from union membership, rather than merely of revocation
of dues-checkoff authorizations. And the Charging Party,
as noted above, sees "hostility" in the very nature of the
arbitration proceeding that followed the strike.
Some of the asserted differences do not exist at all, and
some are more a matter of semantics than reality . Thus, in
Perkins, as here , the letters went to all union members. In
Perkins, as here , the letters talked of resignation from the
union, not solely of revocation of dues-checkoff authoriza-
tions. In Perkins, the company told the employees in the
letters that they "should" notify the company of their
determination to resign and attached form letters and
envelopes to be used for that purpose. Here, the individual
letters told employees that they "must" notify the Compa-
ny, so the Company would know whether to continue to
deduct dues. (This notice which preceded the letters told
employees to "be sure" to notify the Company .) I see no
meaningful distinction between the "should" of Perkins
and the "must," in context, of the instant case . This is
particularly true in that there would obviously have to be
some notification to the Company by employees who no
longer wanted their union dues deducted from their
paychecks.
It is true that the letters in Perkins contained repeated
disavowals of any possible detriment to employees based
on their decision to resign or not to do so, and of the
employer's neutrality on the subject . But the absence here
of specific statements to that effect does not automatically
mean that the converse is true , that the notice and letters
here contain an implicit threat . Thus, to the extent some
distinctions do exist, they are not nearly so significant or
compelling as the arguments would have them.
On the other side of the coin , there is no suggestion in
Perkins that the company's letters were prompted by any
employees having sought advice , or having indicated any
desire to withdraw from the union . Here, however,
uncontroverted testimony establishes that about 13 em-
ployees asked Respondent for information on how to
withdraw from the Union. There was, accordingly, more
reason here for the Company to inform all employees of
their "rights" in this connection than there would appear to
have been in Perkins, where the company sua sponte
notified employees of their rights to withdraw. Further-
more , in Perkins the company enclosed form letters of
resignation , addressed to the company as well as the union.
Respondent here did not do so . To the extent , therefore,
that the Charging Party argues that the facts here lead "to
an inescapable and clear inference that the Company
wants Union withdrawals from the employees," that
inference would have applied more forcefully in Perkins.
Indeed, any notification by a company to its employees of
their right to withdraw from a union carries with it at least
2 The General Counsel's assumption is correct Respondent does rely on 3 The letter itself was a revocation of the employees' authorization-for-
Perkins. dues deduction and from membership in the union.
CYCLOPS CORPORATION, TEX-TUBE DIVISION
the notion that the company "wants" the employees to
withdraw.
In sum , I am convinced that there is no meaningful
distinction, on balance, between the instant case and
Perkins. To the extent that some of the differences between
the two tend to make letters in the instant case less
innocuous, other differences go precisely the other way.
Thus, without more, I regard Perkins as controlling here. I
find nothing in the other cases cited by the Charging Party
that militates against that conclusion . Two of them, Red
Rock Co., 84 NLRB 521 (1949), and Hexton Furniture Co.,
111 NLRB 342 (1955), the Board itself distinguished in
Perkins, and the distinctions are equally applicable here.
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall as provided in Sec.
859
The same sort of distinctions apply to all the other cases
cited where the Board found violations.
As to the final point advanced by the Charging Party,
that the nature of the arbitration demonstrates "hostility,"
I do not regard going to arbitration, whatever its nature, as
the kind of hostility that would convert an otherwise lawful
act to a violation of the Act.
For all these reasons, I conclude that Respondent has
not violated Section 8(a)(l) of the Act, and issue the
following recommended:
ORDER4
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.