General Motors Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1961

133 N.L.R.B. 451 (N.L.R.B. 1961)

GENERAL MOTORS CORPORATION 451
March 1 and the morning of March 2 a dozen of these badges were placed on a table
in the lunchroom.
According to some of the employees interviewed, Munro made these statements
to them as he handed them the badges: "Here is something I would like for you
to wear"; "I want to be sure that everyone gets one. I don 't want to miss anybody";
"Here, I would like for you to take this"; "Here, girls, I almost overlooked you
two"; "Here is something for you girls to wear tonight"; "I want you to have one of
these"; and "I would appreciate your vote." According to other employees inter-
viewed, Munro merely said "Good morning" or some similar remarks, or nothing
at all.
Munro stated that he made the statement to some of the employees as he handed
them the badges: "Here is a badge I would like for you to have," but states that
in many instances he did not say anything, particularly when they came up in groups.
He denied making any of the statements attributed to him as set forth above.
The investigation clearly disclosed that Munro was the only person who handed
out these badges.
It is found that Munro 's statements to the employees as he handed them a badge
did not contain any element of coercion or intimidation . Accordingly, this objec-
tion is found to be without merit , and it is recommended that objection No. 6 be
overruled.
Objection No. 7: No evidence in support of this objection was submitted by the
Petitioner, nor was any disclosed during the course of the investigation . Therefore,
it is found that this objection is without merit , and it is recommended that objection
No. 7 be overruled.
Conclusions and Recommendations
Having recommended that Petitioner's objections Nos. 6 and 7 be overruled and
that Petitioner's objections Nos. 1, 2, 3, 4, and 5 be sustained , it is further found
that objections Nos. 1 through 5 raise substantial and material issues affecting the
results of the election.
Accordingly, it is further recommended that the election be set aside and that
a new election be directed.
[Exhibits referred to in the Regional Director's report are not attached as they
.are adequately presented in the report.]
General Motors Corporation and International Union , United
Automobile , Aircraft and Agricultural Implement Workers
of America , UAW-AFL-CIO. Case No. 7-CA-2560. Septem-
ber 29, 1961
SUPPLEMENTAL DECISION AND ORDER
On February 20, 1961, the National Labor Relations Board (Mem-
bers Rodgers and Fanning dissenting) issued a Decision and Order
in the above-entitled case (130 NLRB 481), dismissing the entire
complaint, as amended, which alleged, in substance, that the Re-
spondent, herein called GM, refused to bargain with International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, herein called UAW, con-
cerning terms of an agreement supplementary to an existing agree-
ment between the parties. Thereafter, the General Counsel and the
UAW, the Charging Party, filed motions for reconsideration and
briefs in support. Briefs in support of the motions were also filed by
the Retail Clerks International Association, AFL-CIO ; the AFL-
133 NLRB No. 21.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO; Commercial Telegraphers' Union, AFL-CIO; United Steel
Workers of America, AFL-CIO; and Indiana State Building and
Construction Trades Council. UAW, Commercial Telegraphers' Un-
ion, and Indiana State Building and Construction Trades Council
also requested oral argument in connection with the motions for re-
consideration. GM and the Intervenor 1 filed briefs in opposition to
the motions. As the record, including the exceptions and briefs, ade-
quately present the issues and positions of the parties, the requests
for oral argument in connection with the motions for reconsideration
are hereby denied. We hereby grant the motions for reconsideration
and vacate our previous Decision and Order in this case, except for the
formal parts consisting of the procedural aspects of the case, and the
findings as to the business of the Respondent and as to the labor
organization involved.
The Refusal To Bargain
By letter of October 20, 1959, UAW requested GM to bargain con-
cerning a proposed supplementary agreement to their existing na-
tional agreement 2 under which the nonmember employees represented
by UAW in GM's nine plants in six Indiana cities (Anderson, Bed-
ford, Kokomo, Indianapolis, Marion, and Muncie)3 and new em-
ployees hired thereafter would be required as a condition of continued
employment after 30 days following the date of such supplementary
agreement or of their initial employment (whichever is later) to pay
to the UAW a sum equal to the initiation fee charged by each of its
local unions involved and a monthly sum equal to the regular dues
required of union members at each location.
By letter, dated October 27, 1959, GM answered, stating that, as an
"agency shop arrangement ... as ... detailed in your letter of
October 20, 1959, would violate the National Labor Relations Act,
as amended, if incorporated in a collective bargaining agreement, we
respectfully decline to comply with your request. ..."
1 The Intervenor is a group of GM employees in the appropriate unit who are opposed
to the UAW' s proposed supplemental agreement.
2 The national agreement , dated October 2, 1958, and effective until August 31, 1961,
and thereafter from year to year, provides for maintenance of membership and a union
shop, except as follows:
(4b) Anything herein to the contrary notwithstanding , an employee shall not be
required to become a member of, or continue membership in, the union, as a condi-
tion of employment , if employed in any state which prohibits , or otherwise makes
unlawful , membership in a labor organization as a condition of employment.
$ The UAW's letter referred to "five" Indiana plants . However, it appears from the
record that the plants involved in this proceeding are the Chevrolet Motor Division and
the Allison Division in Indianapolis , the Delco Radio Division in Kokomo , the Fabricast
Division in Bedford , the Battery Operations and the Delco -Remy Division in Muncie, the
Delco-Remy Division and the Guide Lamp Division in Anderson , and the Fisher Body
Division in Marion.
GENERAL MOTORS CORPORATION 453
The foregoing exchange of correspondence took place after a deci-
sion on June 19, 1959, by the Indiana Appellate Court, holding that
an agency shop under which nonunion members are required, as a
condition of employment, to pay the exclusive bargaining agent a fee,
in the equivalent of dues, initiation fees, and assessments paid by
union members, was a legal union-security arrangement in the State
of Indiana notwithstanding Indiana's right-to-work law 4 The court
reasoned that Indiana's right-to-work law, unlike right-to-work stat-
utes of other jurisdictions which specifically prohibit or restrict
agency-shop arrangements, only forbids arrangements requiring un-
ion membership, and, as an agency-shop does not require union mem-
bership, the Indiana statute did not apply to an agency-shop
arrangement .5
Apart from the issue concerning the legality of the agency-shop
arrangement, all facts necessary for proof of a Section 8 (a) (5) vio-
lation are either stipulated or conceded. The Respondent admits that
the UAW has been and now is the exclusive collective-bargaining
representative for all production and maintenance employees and me-
chanical employees in engineering department shops in the plants or
facilities of the Respondent covered by the national agreement be-
tween the UAW and GM, dated October 2, 1958, including employees
at the Respondent's aforementioned Indiana plant locations, and that
the UAW services the employees whom it represents at each of these
plants through its local unions. The parties stipulated that, for the
purposes of this case, they do not "intend to raise or rely" upon a pro-
vision in the national agreement which purports in broad terms to
preclude any requirement of further bargaining during the term of
the agreement. The parties are in agreement that, if UAW's proposal
is lawful, the subject matter of the proposal constituted a mandatory
subject for collective bargaining and that. GM's refusal to bargain
with respect to it would violate Section 8 (a) (5) ; but that, if UAW's
proposal is unlawful, GM had no legal obligation to bargain as to it.
4 The right- to-work law of the State of Indiana , the place of employment of the em
ployees involved herein, provides in pertinent part ( Burn's Ind. Statutes , Ann. Sec
40-2703 C P.S , Acts of 1957, ch. 19, sec 3) :
No corporation or individual or association or labor organization shall solicit, enter
into or extend any contract, agreement or understanding written or oral , to exclude
from employment any person by reason of membership or nonmembership in a labor
organization , to discharge or suspend from employment or layoff any person by
reason of his refusal to join a labor organization . . Any such contract , agreement,
or understanding , written or oral, entered into or extended after the effective date of
this Act, shall be null and void and of no force or effect . . .
Section 14 ( b) of the National Labor Relations Act provides:
Nothing in this Act shall be construed as authorizing the execution or application
of agreements requiring membership in a labor organization as a condition of em-
ployment in any State or Territory in which such execution or application is pro-
hibited by State or Territorial law.
e Meade Electric Company v . Hagberg, 159 N .E. 2d 408, 44 LRAM 2312 . Cf. Higgins v.
Cardinal Mfg Co. , 188 Ilan. 11, 360 P. 2d 456, 463.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, the ultimate issue to be determined is whether UAW's pro-
posal for an agency-shop arrangement to cover GM employees em-
ployed in the State of Indiana is a lawful proposal under the National
Labor Relations Act, as amended.
GM contends that UAW's proposed agency-shop clause is illegal
under the provisions of Sections 7 and 8 (a)( (1) and (3).1 More
specifically, GM contends that the exercise of rights of employees
under Section 7 of the Act, as amended in 1947, and particularly the
right to refrain from assisting a labor organization, is limited only by
agreements requiring union membership as authorized in Section
8(a) (3). GM asserts that, because an agency-shop requires non-
union employees to contribute financial support to a labor organi-
zation and because, for the reasons hereinafter set forth, an
agency-shop arrangement does not meet the requirements of Section
8(a) (3), an agency-shop arrangement, if adopted, would interfere
with the exercise of rights guaranteed in Section 7, and would there-
fore constitute a violation of Section 8 (a) (1).
GM further contends that the first proviso to Section 8 (a) (3) spells
out the only type of agreement, i.e., an agreement limited to con-
ditioning continued employment upon membership in a labor or-
ganization, that may permissibly infringe upon rights guaranteed in
Section 7 and not expose an employer to a violation of Section 8 (a) (3).
GM asserts that the first proviso to Section 8(a) (3) makes clear that
O Section 7 of the Act provides:
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 except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment as authorized in section 8(a) (3).
Sections 8(a)(1) and 8(a)(3), in relevant part , provide that:
It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise of the rights
guaranteed in section 7 ;
(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor organiza-
tion : Provided, That nothing in this Act , or in any other statute of the United States,
shall preclude an employer from making an agreement with a labor organization
(not established , maintained , or assisted by any action defined in section 8(a) of
this Act as an unfair labor practice ) to require as a condition of employment member-
ship therein on or after the thirtieth day following the beginning of such employ-
ment or the effective date of such agreement , whichever is the later , ( i) if such
labor organization is the representative of the employees as provided in section 9(a),
in the appropriate collective -bargaining unit covered by such agreement when
made . . . : Provided further, That no employer shall justify any discrimination
against an employee for nonmembership in a labor organization (A) if he has
reasonable grounds for believing that such membership was not available to the
employee on the same terms and conditions generally applicable to other members,
or (B) if he has reasonable grounds for believing that membership was denied or
terminated for reasons other than the failure of the employee to tender the periodic
dues and the initiation fees uniformly required as a condition of acquiring or retain-
ing membership ; . . .
GENERAL MOTORS CORPORATION 455
to condition employment on anything other than membership in a
labor organization is contrary to the statute. Finally, GM contends
that, as UAW's proposal fails to meet the requirements of the first
proviso to Section 8(a) (3), its proposal would afford GM no protec-
tion from the sweep of the basic no-discrimination provision of Sec-
tion 8(a) (3) were it to enforce an agency-shop agreement against
employees who refuse to pay support money, and thus the proposal
is illegal.
On the other hand, the General Counsel and the TJAW contend in
substance that the first proviso to Section 8 (a) (3) merely defines the
outer limits of permissible union-security provisions and that the pro-
viso encompasses within its scope lesser forms of union-security ar-
rangements, including the agency shop which requires only the pay-
ment of the equivalent of dues and initiation fees but does not compel
membership in a labor organization.
Before approaching the problem of the legality of an agency-shop
agreement, two factors merit emphasis as they are both indispensable
to a proper solution of the problem posed.
First, all parties to this proceeding are in agreement that the Board
decide this case under the Federal Act, applying Federal law, and
without resorting to the law of any State. No party has proceeded
on the ground that the proposed agency-shop agreement would violate
Indiana's "right-to-work" law.' And the Respondent predicated its
refusal to bargain with the Union on the belief that the proposed
agency-shop clause was unlawful without reference to Indiana law.8
Thus, as the issue is framed by the parties, neither Section 14(b),
relating to the withdrawal of the Federal Act where State law pro-
hibits the "execution or application of agreements requiring member-
ship in a labor organization as a condition of -employment," nor in
particular the "right-to-work" statute of Indiana or any .other State
Deed be reached in this case.9
7In Meade Electric Co. v Hagberg, supra, the Indiana Appellate Court construed the
Indiana "right-to-work" statute as not prohibiting an "agency shop" provision substan-
tially similar to the clause proposed by the Union in the instant proceeding. It is sig-
nificant to note that the Indiana statute is couched in terms of "membership" and
"nonmembership" and, like the Federal Act ( Section 7 ), grants to employees the right to
assist or refrain from assisting a labor organization . And see, eg , Schernerhorn v.
Local 1625, Retail Clerks, 47 LRRM 2300 ( Dec.' 23, 1960 ), where a Florida court handed
down a similar ruling under the Florida "right-to-work" law.
8 In its reply brief , the Respondent stated:
No one, much less the Respondent , is here contending that an "agency shop"
arrangement such as has been proposed by the UAW is illegal under Indiana law.
The legality of "agency shop" agreements under Indiana law is not in dispute in
this proceeding
8 Notwithstanding that on the stipulated record the source of the governing law is to be
Federal in nature , our dissenting colleague has proceeded to construe State law Thus,
for example , he attempts to distinguish the Public Service and American Seating cases,
cited infra, on the ground that in those cases "no legal impediment existed to preclude
the parties from entering into a contract requiring all employees to be union members."
The "legal impediment" to which he impliedly alludes as existing in the instant case is
the Indiana "right-to-work" law. He states that the proposed agency shop is unlawful
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Second, there is no suggestion made anywhere in this proceeding
that membership in the Union is not available to any nonmember
employee who wishes to join.10 Everyone concedes that the Union
was not seeking to bargain over a clause requiring nonmember em-
ployees to pay sums equal to dues and fees as a condition of employ-
ment while at the same time maintaining a closed-union policy with
respect to applicants for membership.ll Accordingly, the question of
the legality of agency-shop provision here must be viewed as contem-
plating an arrangement in which, while employment is conditioned
upon payment of the equivalent of dues and fees, all employees are
given the option of becoming, or refraining from becoming, members
of the Union.12
in Indiana , despite the judicial holding in Indiana to the contrary . In effect, he would
automatically forbid the agency shop, and we suppose all forms of union security, in any
"right-to-work" jurisdiction purely on the basis of that label, implying that the "right-to-
work" laws in all States must be regarded as identical and that not even the State will
be allowed to say otherwise We do not think it is the Board 's province to undermine a
State court decision interpreting a State statute , such as in this case where the Indiana
Appellate Court has already rendered a formal decision as to the construction of the
Indiana statute . Algoma Plywood and Veneer Company v . Wisconsin Employment Rela-
tions Board, 336 U.S. 301 , 307-314.
10 The record and briefs in the case affirmatively indicate the availability of member-
ship to the Indiana employees . Indeed section 4(c) of the existing national agreement
requires the Union "to accept into membership each employee covered by this agreement
who renders to the Union the periodic dues and initiation fee uniformly required as a
condition of acquiring or retaining membership in the Union ." The Union 's agency-shop
proposal specifically provided that Indiana employees would have an opportunity to be-
come union members. In their bargaining with respect to the agency -shop proposal, the
parties could , of course , agree to insert in a contract that membership would be available
but not required
n Since the question of the extent to which a closed -union policy might affect the
legality of an agency -shop agreement is not an issue in this case , we find it unnecessary
to reach that question.
12 There is no basis for the position , derived from testimony of Woodcock , the Union's
vice president, that nonmember employees , who would be required to pay the equivalent
of union dues and fees, would be deprived of certain benefits which members would
acquire solely by virtue of their membership and as a matter of right. As reflected in
the record , every question asked of Woodcock was with reference to the Union's constitu-
tion ( and not with respect to the Union 's agency-shop proposal ). Woodcock responded
that there were no provisions in the constitution which expressly set forth the rights of
nonmembers to participate in union meetings , in union strike funds, to receive the union
magazine, etc . But Woodcock also testified repeatedly that, despite the absence of express
provisions dealing with nonunion members' rights in the Union 's constitution , the custom
and practice of the Union , as deemed by it to be consistent with the constitution, is to
grant all the rights accorded to members to nonmembers as well , if the nonmembers pay
sums equal to dues and fees. Thus, Woodcock testified that the benefits afforded to
members by the constitution are denied to those employees who "are nonmembers in the
sense of nonpaying to any extent" But, to those who pay the equivalent of dues and
fees, they are placed on the Union's rolls and "they are entitled to the same benefits as
a member unless they themselves choose not to make them available to them."
It is the statutory duty of the exclusive bargaining agent to represent equally all em-
ployees in the unit, union members and nonmembers alike. Beater William Steele v.
Louisville & Nashville Railroad Co , etc., et al, 323 U S. 192; Tunstall v 'Brotherhood of
Locomotive Firemen & Enginemen, et al, 323 U S 210; Hughes Tool Company, 104
NLRB 318 There can be no dispute that the duty is legally fulfilled , for example, where
under a concededly valid maintenance -of-membership contract employees refrain from
joining the union and are denied the intraunion organizational benefits afforded to mem-
bers Nor in the maintenance -of-membership situation would the fact that nonmembers
are not required to pay dues detract from the nondiscrimination and equal treatment to
which they are entitled under the Act. The statute sanctions the enforcible collection
of dues and fees from members pursuant to a valid union-security contract because
GENERAL MOTORS CORPORATION 457
In the light of both these factors, we have no doubt that an agency-
shop agreement is a permissible form of union-security within the
meaning of Sections 7 and 8(a) (3) of the Act. We are impelled by
what we believe is the clear intention of the Congress as expressed in
Section 8(a) (3) of the Act, in the legislative history of the Wagner is
and Taft-Hartley 14 Acts, and by the Board and court decisions in
which that section has been construed.
The basic problem, simply stated, is whether this form of union
security, the agency-shop, is, and was intended by Congress to be,
embraced within the Section 8(a) (3) proviso. The question is
answered in the precedents, e.g., Public Service," American Seating,ls
Union Starch,'1 and Radio O ffleers.18
The unanimous Board in Public Service, rendered a comprehensive
opinion on all pertinent aspects, including the legislative history and
technical questions of statutory construction, of essentially the same
problem under the Wagner Act." The Board ruled that the Section
Congress has vested in the majority union the obligation of statutory bargaining repre-
sentative , and not on account of the internal organizational benefits, e . g, fraternal,
which the members receive . Nonmembers in the unit must be accorded the same repre-
sentation service pertaining to wages, hours , and work conditions with the employer, and
the statutory sanction for financial support of such service derives from the same source.
This is reinforced by the congressional purpose, as conceded , of eliminating "free riders."
The amount of the charges to the nonmembers is justified on the basis of a reasonable
general classification . The Electric Auto Lite Co, 92 NLRB 1073, 1077 , enfd 196 F 2d
500 (C.A. 6), cert denied 344 U.S. 823
1s E.g., "The Bill does nothing to facilitate closed shop agreements or to make them
legal in any State where they may be illegal. It does not interfere with the status quo
on this debatable subject but leaves the way open to such agreements as might now be
legally consummated . . . (Emphasis supplied .] S Rept. 573, 74th Cong , 1st sess ,
p. 11. That various forms and degrees of union-security contracts were then extant and
permitted in many States was well known to Congress and, in particular, to the Board
in its consideration of the Public Service case, infra
14 E g., Senator Taft, in explaining the Section 8(a) (3) provisos: " . . while I think
of it, I should like to say the rule adopted by the [Conference ] committee is substan-
tially the rule now in effect in Canada. Apparently by a decision of the justices of the
Supreme Court of Canada in an arbitration case, the present rule in Canada is that there
can be a closed shop or union shop, and the union does not have to admit an employee
who applied for membership, but the employee must nevertheless, pay dues, even though
he does not join the union If he pays the dues without joining the union, he has the
right to be employed. . . [Emphasis supplied ] 93 Congressional Record 5088,
May 9, 1947. While not controlling of the legal issue, we note that, in a recent Bureau
of National Affairs survey of 400 representative contracts, 6 percent contained agency-
shop clauses ( 46 LRR 458 , October 17, 1960 ) , that, as appeared in the oral argument
herein, in the 10 years since Public Service was decided the General Counsel has been
dismissing charges alleging agency-shop contracts as unlawful, and that contracts have
been written involving large numbers of employees in reliance upon the Board's holdings
i5 Public Service Company of Colorado, 89 NLRB 418. An interesting fact to be noted
in the Public Service case ( at p 419 ) is that after executing the "support money" clause,
the employer sent a letter to the employees in which it explained that, while it would not
agree to the union's proposal for a union shop because "there were employees who for
their own personal reasons would not care to join the Union," the employer agreed to
the alternative agency-shop clause to promote more harmony among the employees.
15 American Seating Go, 98 NLRB 800.
is Union Starch & Refining Company, 87 NLRB 779, enfd. 186 F. 2d 1008, 1011-1012
(C A. 7), cert denied 342 U.S. 815.
18 Radio Officers' Union, etc. (A. H. Bull Steamship Company) v. N.L R B , 347 U S 17
ie The Public Service case was decided after Taft-Hartley became effective, with full
knowledge by the Board of the provisions and policy of the later statute
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(3) proviso, which specifically allows a "membership" requirement
in a contract, was intended to be "permissive and not exclusive in
character" ; that it merely set the maximum limits of union security
which may be negotiated; and that lesser forms of union security,
e.g., an agency shop, were clearly permitted. We believe the case is
manifestly sound. During the Taft-Hartley period, the Board, in
American Seating, expressly reaffirmed the holding in Public Service,
stating :
As the precise language of the 8 (3) proviso in the Wagner Act
was continued in the amended Act with certain added qualifi-
cations not pertinent here, and because the legislative history of
the amended Act indicates that Congress intended not to illegalize
the practice of obtaining support payments from nonunion mem-
bers who would otherwise be "free riders," we find that the pro-
vision for support payments in the instant contract does not ex-
ceed the union-security agreements authorized by the Act. 98
NLRB 800, 802 (1952). [Emphasis supplied.] 20
The Union Starch, construction of Section 8(a) (3) has been an ac-
cepted and settled rule in a great many Board and court cases. In
those cases, even where "membership" is specifically required in a valid
union-security contract, the union in particular situations cannot en-
force the actual membership requirement but can obtain at most the
periodic dues and initiation fees. Thus, a contract, such as the agency
shop, which requires only that which the union under the Act can
realistically and effectively enforce as to all employees in this case
must in all reason and equity be held lawful.
In the Radio Officers' case,21 the Supreme Court recognized that :
Lengthy legislative debate preceded the 1947 amendments to the
Act which thus limited permissible employer discrimination.
Thus legislative history clearly indicates that Congress intended
to prevent utilization of union-security agreements for any pur-
pose other than to compel payment of union dues and fees. Thus
Congress recognized the validity of unions' concern about `free
riders,' i.e., employees who receive the benefits of union representa-
tion but are unwilling to contribute their share of financial sup-
port to such union, and gave unions the power to contract to
20 In the provisos to both Section 8(3) of the Wagner Act and 8 ( a) (3) of the Taft-
Hartley Act , the public policy is stated : "That nothing in this Act, or sn any other
statute of the United States, shall preclude an employer from making [ such] an agree-
ment . " [ Emphasis supplied .] See Algoma Plywood & Veneer Co v. Wasconsin
Employment Relations Board, 330 U . S. 301 In making this statement of policy, did
Congress intend to place upon the described form of union -security provision as to which
it was thus proclaiming Immunity from all its laws , a technical restriction , to wit, that
it must contain a "membership " requirement and nothing else?
n Radio Officers' Union , etc. (A . H. Bull Steamship Company) v N.L R B , 347 U S.
17, 40-41
GENERAL MOTORS CORPORATION 459
meet that problem while withholding from unions the power to
cause the discharge of employees for any other reason. [Em-
phasis supplied.]
Certainly the Supreme Court clarified that which Congress sought
to permit in the area of union security and that which it sought to
limit. While Section 8(a) (3) is couched in terms of "membership,"
the Court noted that the term had been "too restrictively interpreted"
(by the Eighth Circuit). The Supreme Court provided a construction
of that term and the whole section in keeping with the basic policy
of the amended Act, namely, "to insulate employees' jobs from their
organizational rights." 22 By such a reading, the Court gave effect
to the main thrust of the entire section, which is to protect employees
in their hire or tenure of employment; and this was accomplished by
qualifying the requirement of "membership" with the protection
against discharge so long as the employee tendered the requisite peri-
odic dues and fees 23
In view of the foregoing, we are unable to distinguish, so far as its
legality is concerned, the instant agency-shop proposal from any other
union-security proposal which predicates a right of discharge only
upon an employee's failure to tender the equivalent of regular union
dues and initiation fees. The Union sought to bargain concerning a
clause which would leave the final decision as to membership or non-
membership with each individual employee, at his option, but never-
theless, to condition employment upon the payment of sums of money
which would constitute each employee's share of financial support.
In our opinion, such a proposal fully comports with the congressional
intention in Section 8(a) (3) for the allowance of union-security con-
tracts, and, therefore, it is a mandatory subject as to which the Re-
spondent is obliged to bargain.
Consequently, having refused to bargain with respect to such pro-
posal, we find that the Respondent violated Section 8 (a) (1) and (5)
of the Act, as alleged in the complaint as amended.24
The Effect of the Unfair Labor Practices Upon Commerce
The activities of the Respondent, occurring in connection with the
Respondent's operations, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the several States, and
22 347 U S. at 40.
z2 As stated by Senator Taft, "In other words , what we do, in effect, is to say that no
one can get a free ride sn such a shop . . . The employee has to pay the union dues"
[ Emphasis supplied .] 93 Congressional Record 3953 , Apr. 23, 1947.
24 It is beyond the Board's authority to tell the parties what specific result they should
reach in bargaining . N.L R.B v. American National Insurance Co., 343 U S. 395. Accord-
ingly, by concluding that the proposed agency-shop agreement is a lawful and mandatory
subject for bargaining , we do not impose a duty upon the Respondent to execute such an
agency- shop clause , or any other clause; the duty imposed goes no further than to direct
the Respondent , upon request , to bargain in good faith thereon.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tend to lead to labor disputes obstructing commerce and the free flow
of commerce.
Upon the foregoing findings of fact, and upon the entire record,
the Board makes the following :
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, UAW-AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. All employees covered by the national agreement between GM and
UAW, dated October 2,1958, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
3. The above-named Union, on October 20, 1959, and at all times
since, represented a majority of all employees in the aforesaid ap-
propriate unit for the purpose of collective bargaining within the
meaning of Section 9 (a) of the Act, and at all material times has been
and now is the exclusive representative of said employees.
4. By refusing on October 27, 1959, and at all times thereafter, to
bargain collectively with the above-named Union, as the exclusive rep-
resentative of its employees in the aforesaid appropriate unit concern-
ing the agency-shop proposal made by the Union, the Respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the
exercise of rights guaranteed in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case , and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , General Motors
Corporation , Detroit, Michigan , its officers , agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile , Aircraft and Agricultural Implement Workers
of America , UAW-AFL-CIO, as the exclusive representative of all
production and maintenance employees and mechanical employees in
engineering department shops in the plants or facilities of the Re-
spondent covered by the national agreement between the UAW and
GENERAL MOTORS CORPORATION 461
GM, dated October 2, 1958, including the employees at the Respond-
ent's plants in Anderson, Bedford, Kokomo, Indianapolis, Marion,
and Muncie, Indiana, (1) concerning the terms of an agreement sup-
plementary to the existing national agreement under which nonmem-
ber employees in the bargaining unit at the aforesaid Indiana plants
and new employees to be hired therein would be required as a condi-
tion of continued employment after 30 days following the date of such
supplementary agreement or of their initial employment (whichever
is later) to pay to the UAW a sum equal to the initiation fee charged
by the local union involved and monthly sums equal to the regular
dues required of UAW members at each location; or (2) concerning
like or related agency-shop proposals.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed in
Section 7 of the Act to bargain collectively through representatives of
their own choosing.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named labor
organization, as the exclusive representative of the employees in the
aforesaid unit (1) with respect to the proposal of UAW to enter into
an agreement, supplementing their national agreement, to provide that
employees represented by UAW in GM plants in Indiana and new
employees hired at those plants thereafter would be required as a con-
dition of continued employment after 30 days following the date of
such supplementary agreement or of their initial employment (which-
ever is later) to pay to the UAW a sum equal to the initiation fee
charged by the local union involved and monthly sums equal to the
dues required of members at each location, and, if an understanding is
reached, embody such understanding in a signed agreement; or (2)
with respect to like or related proposals.
(b) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.25
MEMBER LEEDOM, dissenting :
For the reasons set forth hereinafter, I believe that the complaint
should be dismissed. Even though the "agency shop" agreement has
been held to be lawful under the law of Indiana, a "right-to-work"
State, it is, in my opinion, unlawful under the National Labor Re-
lations Act in such a State. I do not, as my colleagues assert, con-
2'
At the hearing, the parties stipulated that, in the event that the Board found that
the Respondent violated Section 8(a) (5) of the Act, they "specifically waive any remedy
requiring the posting of notices by Respondent ." In accordance with the stipulation, we
omit the usual remedy with respect to posting notices
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strue State law to interpret Federal, but, rather confine myself to the
Federal Act.
The record discloses that, under the agency-shop proposed, non-
members would not as a matter of right be eligible to participate in
union meetings, to vote on ratifications of agreements, or to vote on
how their "support money" was to be spent. They would not be en-
titled as a matter of right to receive the Union's publication, or strike.
benefits, to participate in the Union's educational fund, or to have any
of the other benefits guaranteed union members. Thus, although
nonmembers would be required to pay to the UAW the equivalent of
the initiation fee and dues paid by members, they could be denied
benefits, available to members which would be available to them, with-
out additional financial burden, if they became members. Moreover,,
even with respect to UAW practice, counsel for the UAW stated at
oral argument that "probably a non-member [subject to the agency-
shop provision] would not vote in the strike vote." In these circum-
stances, nonmembers would necessarily be encouraged to become mem-
bers. For, as the courts have held, the existence of discriminatory-
benefits, based on union membership, "is inherently conducive to in-
creased union membership . . . by increasing the number of workers
who would like to join,and/or their quantum of desire," even though
the Union would reject all applicants for membership zs If this is
so when the Union is closed, a fortiori is it so when, as here, the Union
is open. That the payment of money to a labor organization assist&
that organization is self-evident.
In my view, such a union-security agreement necessarily interferes
with the Section 7 right of employees to refrain from assisting, and'
encourages membership in, a labor organization. It is, therefore, un-
lawful under Section 8(a) (1) and (3) in any jurisdiction, unless it is
saved by the proviso to Section 8(a) (3) of the Act. That proviso-
permits an employer to make an agreement with a labor organization
"to require as a condition of employment membership [emphasis sup-
plied] therein on or after the thirtieth day following the beginning of
such employment or the effective date of such agreement, which ever
is later...." There is, however, no other provision of the Act which
specifically legalizes the interference and encouragement inherent in
an agency-shop arrangement, and the only question here is whether
such an arrangement can be lawful under the National Labor Re-
lations Act in a State like Indiana, where it is clear that an agreement
requiring literal membership 27 is prohibited by State law. To hold
° N L R B. v. Gaynor News Company, Inc., 197 F. 2d 719, 722-723 (CA. 2), affd
347 U S. 17.
27 By "literal membership" I mean the right of a union to require actual membership as
a condition of employment, and a willingness to admit to membership all employees who
tender the requisite initiation fees and dues ; cf. Union Starch & Refining Company,
87 NLRB 779; Radio Officers' Union, etc. (A. H. Bull Steamship Company ) v. N.L.R.B.,
GENERAL MOTORS CORPORATION 463
the agency shop lawful, one would have to conclude that Congress
intended the word "membership" in Sections 7 and 8(a) (3) to en-
compass not only literal membership, but also other relationships be-
tween employees and the union, while at the same time intending that
the same word in Section 14(b) 28 encompass only literal membership,
or further, that Congress intended the word "membership" to mean
one thing in Indiana and a different thing somewhere else. Such
reasoning I am not prepared to accept. Thus, the conclusion is in-
escapable that an agency-shop arrangement, whatever its status under
Indiana law, cannot be lawful under the National Labor Relations Act
in a State like Indiana where employment cannot lawfully be con-
ditioned on literal membership. For as already pointed out, the
agency-shop clause, through the disparity of benefits provided as be-
tween union members and nonmembers-all paying the same fees and
dues-would permit the union and the employer inevitably to coerce
the employees into joining the union. In this way, for all practical
purposes, the very thing is achieved that the Federal statute guaran-
tees shall not be required of employees in a "right-to-work" State
quite as effectively as if the union contract expressly provided for
union membership as a condition of continued employment. For who
can say as a verity that a man forced to buy a cake will not eat it. It,
should not strain perspicacity to see here a classic example of a tech-
nique condemned by the law since ancient times under the principle
"when anything is prohibited directly, it is also prohibited indirectly."
Moreover , in a "right-to-work" State where freedom not to join a
union is guaranteed , it cannot be said that an employee submits to a
"lesser" form of union security than membership, as the term lesser
is used by my colleagues of the majority where, as here, there is ex-
acted from him all the requirements of membership without the
benefits which derive from membership. And it is not an answer to
say that the employee can join, because that is giving him an alterna-
tive which he cannot be required to take in a "right-to-work" State.
The device of the agency shop, where "membership" is unlawful, is
347 U.S. 17. Neither of these cases stands for the proposition that payment of initiation
fees and dues can be required when literal membership cannot.
28 Unlike my colleagues , who find that the terms of Section 14(b) "need not be reached,"
I find that such terms must be interpreted and reconciled with the comparable terms in
the first proviso to Section 8(a) (3). There are a number of States which have "right-to-
work" laws ; not all of them are drawn in the same terms and not all have received the
same interpretation by the competent State authorities. In holding that the proposal here
is lawful under the Section 8(a) (3) proviso because the Indiana court has held an agency
shop to be valid under Indiana law, my colleagues are necessarily holding that they will
follow State law in this area, whatever that law may be and however it may vary from
State to State . Such a view, in my opinion , runs counter to the basic congressional
purpose of establishing a uniform national labor-management relations policy. Although
Congress in enacting -Section 14 ( b) departed from that policy in a limited area, to the
extent of permitting the individual States to determine that the Section 8(a)(3) proviso
would be wholly inapplicable , it did not in my view so far depart from that policy that
the Section 8(a) (3) proviso could conceivably have a different meaning in each of the
50 States and the Territories.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such an impairment of an employee 's freedom that, in my view, it is
a travesty to condone the imposition of such device when the Act
forbids the requirement of literal membership.
In view of the foregoing , I am satisfied that the reliance of the
General Counsel and the UAW on Public Service Company of Colo-
rado , 89 NLRB 418, and American Seating Co ., 98 NLRB 800, is
misplaced . For, unlike the instant matter, both cases involved a valid
agreement , requiring membership as a condition of employment,
which was protected under the first proviso to Section 8 ( a) (3) ; and
neither case involved a "right-to-work" jurisdiction . Significantly,
in both Public Service and American Seating , no legal impediment
existed to preclude the parties from entering into the contracts re-
quiring all employees to be union members, and they made such con-
tracts. Thus the choice extended to the employees there, between
membership and support which did not involve membership , is wholly
different from the "Hobson 's choice" which the UAW would extend
to the employees here.
Based on the foregoing considerations , I conclude that the agency-
shop clause concerning which UAW requested GM to bargain is,
under the National Labor Relations Act, illegal in Indiana , and that
GM was under no obligation to negotiate concerning such a clause
with UAW. Accordingly, GM not having violated the Act as alleged,
the complaint should be dismissed.
The Rollash Corporation and District 65, Retail , Wholesale and
Department Store Union , AFL-CIO. Cases Nos. 2-CA-7534 and
92-CA-7626. September 29, 1961
DECISION AND ORDER
On April 3, 1961, Trial Examiner Thomas A. Ricci issued his In-
termediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices and recommended that the
complaint be dismissed with respect to such allegations. Thereafter
the Respondent filed exceptions to the Intermediate Report.
Pursuant to Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
133 NLRB No. 54.