Helms Bakeries

National Labor Relations Board - Board Decisions

Apr 24, 1968

171 N.L.R.B. 10 (N.L.R.B. 1968)

10 DECISIONS OF NATIONAL
Helms Bakeries and Theodore S. Dichirico
Bakery Drivers Local Union No. 276, International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America and
Theodore S. Dichirico . Cases 31-CA-564 (for-
merly 21-CA-7387) and 31-CB-176 (formerly
21-CB-2819)
April 24, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On December 7, 1967, Trial Examiner Henry S.
Sahm issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged
in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent Union filed exceptions to
the Trial Examiner's Decision. An answering brief
was filed by the General Counsel in response to
these exceptions.
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
powers in connection with these cases to a three-
member panel.
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 brief,
and the entire record in these cases, and hereby
adopts the findings,' conclusions, and recommenda-
tions2 of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent Helms Bakeries, Pasadena,
California, its officers, agents , successors, and as-
signs , and Respondent Bakery Drivers Local Union
No. 276, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
its officers, agents , and representatives, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as herein modified.
LABOR RELATIONS BOARD
1. Delete the following sentence from section B,
paragraph 2(b) of the Trial Examiner's Recom-
mended Order:
"This notice shall also be posted at the meeting
halls and offices of Locals 87, 94, 166, 186, 381,
431, 572, 683, 871, 952, and 982."
' Because we have adopted the Trial Examiner's finding that Theodore
Dichirico was never a member of the Respondent Union , we deem it un-
necessary to consider the circumstances under which withdrawal from such
membership could he accomplished
d We find merit in Respondent Union's exception to the Trial Examiner's
recommendation that all unions which took part in the joint organizational
campaign at Respondent Employer's bakeries be required to comply with
the posting requirements of our Order As these unions were not charged as
respondents in this proceeding , we see no justification for imposing such a
requirement , and we have modified our Order accordingly
TRIAL EXAMINER'S DECISION
I. PRELIMINARY STATEMENT; ISSUES
HENRY S. SAHM, Trial Examiner: Helms Bakeries,
herein called the Respondent Company,'
discharged employee Theodore S. Dichirico, on
November 14, 1966, at the request of the Respon-
dent Union because of the employee's failure to
pay union dues. The question presented is whether
this discharge was in conformity with a valid union-
security agreement or was it an unfair labor prac-
tice within the meaning of Sections 8(a)(3) and (1)
and 8(b)(2) and (1)(A) of the Act because, as the
General Counsel contends, the employee was never
a member of the Union and therefore under no
obligation to pay such dues, whereas the Union ar-
gues that, when the employee signed an application
for membership, he ipso facto became a member.
Upon the entire record in this case, I make the
following:
FINDINGS OF FACT
IT. PARTIES ; JURISDICTION
It is conceded by the Respondents that there is
no issue concerning the Board's jurisdiction and
that Respondent Company is engaged in commerce
within the meaning of the Act. The Respondent
Company, a California corporation, in the conduct
of its retail bakery business, annually does a gross
volume of business in excess of $500,000 and an-
nually purchases and receives, directly from points
and places located outside California, goods and
products valued in excess of $50,000. It is also con-
ceded that the Union herein is a labor organization
within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
As Dichirico's membership in Bakery Drivers
' Counsel for the Respondent Company registered his appearance, im-
mediately left the hearing , and did not participate in the proceedings
171 NLRB No. 3
HELMS BAKERIES 11
Local Union No. 276, Teamsters, is the significant
issue herein, it becomes necessary to review the his-
tory of his employment and the chronology of
events as it pertains to any indicia of union mem-
bership on his part.
In 1965, Local Union No. 276, the Respondent
Union, in conjunction with its sister locals numbers
87, 94, 166, 186, 381, 431, 572, 683, 871, 952, and
982, all affiliated with the Teamsters, initiated a
joint organizational campaign to recruit members
from the Respondent Company's sales drivers em-
ployed at its various bakeries located in Southern
California. Pursuant to the filing of a representation
petition by these 12 locals, the Board conducted an
election on February 9, 1966, among all franchise
and coach sales drivers and sales driver trainees
employed by the Company. The Union won the
election, the vote being 450 for and 428 against
participant unions . Thereafter, on February 17,
1966, all the various unions , specified above, were
certified as collective-bargaining representatives of
the Company's above-described employees at its 10
plants and depots. Negotiations were later begun
which eventuated in a proposed collective-bargain-
ing agreement between the Company and various
locals subject to membership ratification. The
unions thereupon scheduled a meeting on July 21,
1966, of all employees affected by the tentative col-
lective-bargaining agreement for the purpose of
their voting to accept or reject the agreement
negotiated by the Union with the Company.'
Dichirico, the Charging Party, who has been em-
ployed by the Company since 1963 as a sales driver
and franchise route sales driver, testified that he
went to the union hall on the day scheduled for the
meeting . The various union locals had set up
separate tables for the purpose of distributing bal-
lots in order for the employees to vote on whether
or not they approved the tentative agreement
negotiated by the Union. These locals represented
employees working out of the Company's following
plants and depots: Culver City, Montabello, San
Fernando, Pasadena , Pomona, Fullerton, Santa
Ana, Ventura, Santa Barbara, and Long Beach.
(See G.C. Exhs. 5 and 6.)
Dichirico testified that he was told by Valerie
Murray, a union agent , who manned Local 279's
table to which employees working out of the Com-
pany's Pasadena depot were directed as they en-
tered the union meeting hall, "that in order to vote
on whether we would accept or re ect the agree-
ment that the bargaining Union and Helms Bakeries
had entered into, we would have to sign a card; and
I was handed a card and asked to fill in the infor-
mation at the bottom of the card and to sign it
which I did."3 The union form which Dichirico
I It was testified that there were between 400 and 450 sales drivers at this
meeting.
3 Dichinco testified that McNeil, Respondent Union's business agent,
also told him the same thing
' It is agreed by the parties that the wording of the application is not
determinative of the issue whether Dichirico ever became a union member.
signed at that time is attached to this Decision as
Appendix A.' After he signed the application and
filled in the "Death Benefit Information"
requested, Dichirico was given a ballot and then
proceeded to a seat in the hall where all those
present were handed a copy of the contract
proposals.
The meeting began by a union official declaring
that the meeting was called for the purpose of read-
ing and explaining to the sales drivers the provi-
sions of the proposed agreement negotiated by the
Union and that they would then vote on whether
they were or were not satisfied with its provisions.
Ted 0. Paulos, secretary-treasurer of Bakery
Drivers Local Union No. 276, chairman of the
meeting, "pointed out to [the employees] that [he]
felt no one should vote on a contract until they
were members of the Union ... unless they were
members. "5
Dichirico left the hall to make a telephone call
after the proposed contract was read but, before
doing so, he marked his ballot and asked a fellow
employee to drop his ballot in the voting box.
When he returned to the union hall, the meeting
had concluded but the men were waiting to hear
the results of the vote. Some of the employees,
testified Dichirico, were voicing misgivings about
the Union stating "... they did not want to get
roped into the Union and they were going to get
their cards back" (G.C. Exhs. 8(a) and (b)).
Dichirico then walked to the back of the hall,
where a group of men were waiting in line in order
to have their applications, which they had signed,
returned to them. Dichirico testified that as he was
waiting in line to ask for the return of his card, an
unidentified union official stated it was not necessa-
ry for them to have their signed cards returned
because if the proposed contract was rejected, the
applications would be a nullity. This union official
went on to explain that additional negotiations
would then be necessary and if and when agree-
ment was reached by the Union and the Company,
cards would have to be signed again by the em-
ployees when the new contract was submitted to
them for their acceptance or rejection. With this as-
surance, Dichirico left the meeting but not before
hearing the employees had rejected the contract
proposals which had been submitted for them for
their vote.
A few weeks later, the employees were notified
by the Union that a new proposed contract had
been negotiated with the Company and that it
would be submitted to them for ratification or re-
jection at a meeting on August 11, 1966. Although
Dichirico was notified of the August 11 ratification
meeting, he did not attend this meeting or any sub-
See, however, the bottom of the form (G C Exh 8(a)) which states, "Ap-
plication must be completed within thirty day period or all monies for-
feited "
' Paulos'testimony reads as follows ". [the employees] went to the ta-
bles designated the lady or the man, whoever was there, had them fill
out an application and gave them a ballot after that "
12 DECISIONS OF NATIONAL
Sequent union meeting, nor did he sign another
union application. The proposals were ratified at
this August 11 meeting and the Company and
Union executed a collective-bargaining agreement
on August 14, 1966.
Approximately a week after the August I 1 ratifi-
cation meeting, Dean McNeil, the Union's business
representative, came to the Helms Bakery in
Pasadena where Dichirico was employed. He asked
Dichirico to pay his union dues and if he did so be-
fore the end of September, there would be no need
to pay the $100 initiation fee. Dichirico advised
McNeil that he was not a member as he "had never
made a formal application to join the Union...."
Moreover, Dichirico told McNeil that, inasmuch as
he had been employed by Respondent for over 3
years prior to August 14, 1966, the date the con-
tract was executed, he had the option of declining
to join the Union which privilege he was availing
himself of and therefore, was neither a member nor
owed any dues to the Union. McNeil insisted
Dichirico was a member of the Union and that he
had a photostat of his application to prove it to
which Dichirico testified on cross-examination
"that was the first [he] ever heard that [he] made
application. I says how could I make application to
a union where we didn't even have a union prior to
the August 14 [sic] meeting.6 This was my un-
derstanding, because the Union was voted on or
made a contract with Helms Bakeries August 14.
That meeting I did not attend.... As far as I was
concerned that was the end of the Union."
On cross-examination, when Dichirico was asked
what his answer to McNeil's offer to show him a
photostatic copy of his application, he testified he
told McNeil: "I don't care if you could because I
don't recall signing anything about it, an applica-
tion to join the Union. But I felt I was not a
member of the Union because I formally did not
make application; I did not wish to pay dues; I did
not wish to be initiated; and I just didn't want to be
a member of the Union. And we weren't even told
prior to the ratification, of the contract that the
[plant] was going to be an open shop." He cor-
rected himself by stating he meant it was not ex-
plained prior to or at the July 21 meeting that
drivers employed by the Company before the ex-
ecution date of the contract had the option of not
joining the Union. He admitted the provisions of
the union-security clause which provided for this
option were read at the July 21 meeting but that he
"did not understand it."
McNeil again saw Dichirico 2 weeks later at the
bakery and when the latter again refused to pay the
union dues, because he had never made a "formal
application to join the Union," McNeil warned him
that if (Dichirico) "maintained this attitude, that I
LABOR RELATIONS BOARD
possibly would lose my job for nonpayment of
dues."
In the early part of October, McNeil accom-
panied by Paulos, secretary-treasurer of Local 276,
again saw Dichirico at the bakery. McNeil told him
he was the only employee who refused to pay his
dues and asked him to pay his dues and again he
refused stating he was not a member. Paulos told
Dichirico that he was a member as he had signed an
application on July 21, 1966, at the first ratification
meeting. Dichirico replied that between the first
ratification meeting on July 21, and the second one
on August 11, he had learned that because he was
employed by the Company prior to the time the
contract was executed that it was not necessary for
him to join the Union. Paulos then told him, Dichir-
ico testified, that if he refused to pay the union
dues, "I may lose my job because of non-payment
of dues under the Union contract with the Com-
pany."
Around the beginning of November, Paulos and
McNeil came to the bakery and requested that
Dichirico pay the dues and for the fourth time he
refused. Thereupon, Paulos advised him to think it
over and let his supervisor, Moyers, know what his
decision was; "otherwise, he would take steps to
have me terminated for non-payment of dues."
Dichirico then went to see his supervisor,
Moyers, and advised him that he would not pay the
union dues. At that time he also spoke to Feddin,
the Company's district sales supervisor, who sug-
gested he first think it over seriously "because it in-
volves my job, and the Company, because of the
contract with the Union, their hands were tied. [He
said] if the Union did direct them to terminate me,
that they would have no recourse but to follow the
Union demands. So I agreed that I would go on the
route and give it some serious thought and let them
know the following day what my decision would be.
... [The following day] I told them because of the
principle involved, I did not feel that I should pay
dues, because I was not a member of the Union and
I didn't want to be railroaded into being a member
of the Union.... On the morning of November 19,
1966, after I had completed loading my truck, Mr.
Moyers, my supervisor [Pasadena division
manager] ... told me he had some bad news, and
he showed me a letter from the Union [dated
November 14, 1966], asking the Company to ter-
minate me for non-payment of dues under the
Union contract." Dichirico was discharged as of the
close of business that day by being handed a ter-
mination notice (G.C. Exh. 10) which he signed
"under protest." As he left, Dichirico testified,
Moyers said "that probably if I paid my initiation
fee, dues and penalty, they possibly would rehire
me.91
' The second ratification meeting was held August I I and the contract
executed on August 14.
HELMS BAKERIES 13
On cross-examination, Dichirico testified con- had put `under protest'; because they felt the same
cerning the crucial circumstances surrounding the way as I did but they didn't have the guts to get
signing of the union, application: canned from their jobs over it."
Q. And directing your attention to the last Another excerpt from his cross-examination
paragraph of General Counsel's Exhibit No. 6, reads as follows:
did you read that paragraph'at that time? Q. Now why was it that you wanted to get
A. Yes, sir, I did. the card back when you went to the July 21
Q. Now you did not make a formal or make meeting?
application for membership in the Union prior A. Because if I got the card back, I wouldn't
to the meeting of July 21, 1966; is that right? be here today.
A. No, sir, I did not. I did not realize that I Q. Well but you say that as of July 21, 1966,
was making an application at that meeting.... you didn't understand anything about the
I understood there that if we wished to become Union security provisions?
members of the Union, at this time we could A. True, I did not.
avail ourselves and make formal application, or Q. So what, I am asking you is: "Why on
anytime prior to this or after this, but I did not that date did you want to get the card back?"
realize that we had to make application for A. Because some of the men ... whom I
membership in order to vote. can't identify by name, talked in a group stat-
Dichirico's testimony continues as follows: "... I ing that they had been roped into other
don't recall signing an application for membership unions prior to this time by signing such a
in the Union. I arrived at the meeting hall when the card, and that they were going to get their
meeting was about to start or had started. So when cards back. .
the girl asked me to sign this card, I filled out the TRIAL EXAMINER: Why didn't you get your
death benefit information and gave it back to her. card back?
She then reversed it and says you forgot to sign it A. Because somebody made the statement
and marked it and I signed it again . When Mr. that it wasn't necessary because if the contract
Driscoll [a Board field examiner ] asked me about was turned down, they wouldn't be there;
whether this was my signature and he showed me because you would have to sign a new card at
the whole form, I says, I don't think it is because as the next meeting to get a new contract.
far as I know I never signed an application for TRIAL EXAMINER: Do you know who this
membership in the Union. . . . I told Mr. Driscoll someone was?
that I did not recall signing a card that was this THE WITNESS: I believe it was [someone
long, that was a membership application." connected] with the Union because he walked
Further on in his cross-examination , Dichirico's down from the stage.'
testimony continues : "We never had a contract be- The testimony of other Helms Bakery sales
fore. Most of us were ignorant as to how a union drivers corroborates Dichirico's version of the
operates . So when they told us we had to sign these facts.
authorization cards to vote, I think a hundred per- Paul Blatt, who had been employed by the Com-
cent of us signed the cards. After the meeting was pang prior to the advent of the Union, testified that
over, many of the men destroyed these cards." he neither read the "card" which he signed at the
After the proposed agreement was turned down July 21 ratification meeting, nor did he realize it
at the July 21 meeting, Dichirico further testified: was a union membership application, but "assumed
"... from that point on, I had no interest in doing that it was to show that I was an employee of Helms
anything with the Union; so I didn't go to any Bakery." The Union, at his request, returned his
further meetings .' So I am still maintaining : how application to him at the July 21 ratification meet-
can I be in a Union when there was no union prior ing and he was never contacted thereafter with
to this August date. So I didn't feel I was a member. respect to joining the Union.
This is the reason why I refused to pay dues.... At De Von Edwards, who has been employed by the
the time I thought I had never signed an applica- Company for 20 years, testified that he did not
tion. Since then I have found out that this was an "think" he was signing an application for union
application . ... I told Mr. McNeil [union agent] membership. During the July 21 meeting, while he
much earlier before I ever went to the National was listening to a union official explain the provi-
Labor Relations Board that many of the other men sions of the proposed contract, a fellow employee
felt the same way as I did; that they were roped into named Stoker, who was sitting next to him, said,
the Union because of misleading statements. "we're hooked." When Edwards asked him what he
Because the majority of the men from the Pasadena meant , Stoker replied: "It looks like that card we
division had paid their dues, and on their card they signed hooked us with the Union." Edwards an-
r At another point in his direct examination , when he was asked why he the execution of the August 14 agreement did not have to join the Union
did not attend more union meetings, he testified " I was no longer in- s This is an unmistakable reference to the uncontroverted fact that the
terested in going . I had no interest in going ," and then he went on to ex - union officials were seated on a stage in the auditorium where the July 21
plain that he learned later that any employee who had been hired prior to ratification meeting was held
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14
swered: "Well, I'll find out. I haven't voted." He
walked to the table where he had signed his card
and told the union agent who was manning the
table that he wanted his card returned to him. He
then handed his blank voting ballot to her and the
union agent said she could not return his card to
him but would tear it up which she proceeded to
do.
Vernon Stoker, employed by Helms for over 5
years, testified he did not know at the time he
signed the form at the July 21 meeting that it was
an application for membership but thought it was a
method used by the unions of "Just keeping track
of who they were handing out ballots to. . . ." Later
as the provisions of the proposed contract were
being explained by union officials, he turned to De
Von Edwards and asked him if he realized that the
form he had signed was an application to join the
Union. Thereupon, both he and Edwards had their
cards destroyed by the union agent before the
ratification vote was taken.
Harry Wilkins, who has been employed by the
bakery at its Pomona Division for over 12 years,
testified that before attending the July 21 meeting,
he was not advised by the Union that only those
employees who had signed applications for mem-
bership would be permitted to vote. When he ar-
rived at the meeting, Phillip Melody, secretary-trea-
surer of Local 871, handed him an "application and
asked if I would fill it out so that I would be eligible
to vote on the contract." "After [Wilkins] filled out
the application," continues his testimony, "I went
back to Mr. Melody and asked him if this meant
that I would be a member of the Union, and he
stated that not necessarily ... that you had to do
this to vote, and that if the contract did not go
through, that this would be void ... if the contract
was not accepted, that this here application that we
had signed would be void. . . . Well, I understood
that it would mean that if the contract was rejected,
that they would just do away with the applications
that we had signed that day." When he left the
union meeting on July 21, it was his belief, testified
Wilkins, that he was not a union member.9 He
testified that he later attended the second ratifica-
tion meeting on August 11 and that the "new con-
tract" was ratified by a majority of the employees
who attended this meeting.
Ivan Mazy, a Pomona Division route salesman for
over 3 years, testified that Union Agent Melody
told him to fill out an "application" which he then
exchanged for a "vote ballot." Melody told a group
of the employees, Mazy testified, that in order to
vote they would have to first sign membership ap-
plication forms. When he was asked by counsel if
the employees were told at the July 21 ratification
meeting by Melody "if signing the application
meant that you would be required to join the
Union," he answered: ". . . I believe his answer was
when the proposed contract is accepted. If we ac-
cept this contract, this is a union obligation; if not,
it is void." Mazy also testified that he knew the pur-
pose of the July 21 meeting was to accept or reject
the proposed contract but he did not know prior to
attending this meeting that the employees would
have to sign a membership application in order to
vote. His testimony continues as follows:
Q. Now, how did you think this rejection af-
fected the application form that you filled out?
A. I felt sure it nullified it.
Union Officials' Testimony
Ted Paulos testified as follows: He is the secreta-
ry-treasurer of Bakery Drivers Local Union No.
276. Eleven other locals of the Teamsters union
whose geographical jurisdiction was different from
those of Local 276 but in which territorial bounda-
ries the Helms Bakery sold their products, un-
dertook a joint organizational campaign with Local
276 in order to solicit employees of the Company
to join the Union. He was the chairman of the July
21 ratification meeting. He testified that at this
meeting some employees contacted him and
wanted to know why they had to sign an application
in order to get a ballot to vote. "I pointed out to
them that we felt that no one should vote until they
were members of the Union. . . . I felt that it was
only fair that we explain our feeling that no one
should vote on a contract unless they were mem-
bers...." This was stated by him at the beginning
of the meeting. He also testified that he told those
present "no one was going to get a ballot unless
they are members of the Locals." He testified also
that as the employees came into the meeting hall
they went to the various tables designated depend-
ing on which division of the Company they worked
for and that the union officials who were manning
the various tables had them fill out an application
and then gave them a ballot to vote. After that they
took their seats in the meeting hall in preparation
for the union officials addressing them. When the
proposed contract provisions were read and ex-
plained, the employees then voted.
Paulos testified that he had one conversation
with Dichirico, the alleged discriminatee, at the
Helms Bakery. He was accompanied by Dean Mc-
Neil, the Union's business representative. His
testimony continues. That they spoke to Dichirico
around November 1, while he was loading his
truck. "I said ... we need to talk about your ac-
count"; and he says, "There's nothing to talk
about" and I said, "... you're a member of the Lo-
cal. You have signed an application, and you have
dues owing from August." And he says, "Well, I
don't want to talk about it." It was very difficult to
pin him down. . . . I kept telling him that he was a
member of the Union. He said he wasn't. I said we
8 Wilkins is now a union member
HELMS BAKERIES
have an application ; we will show it to you if you
like. And he says, "I don't care if you have it or
not; I am not going to join. . . ." Mr. McNeil also
attempted to tell him that he was a member and
that we did have an application that he had signed
and he was liable for the obligations. On cross-ex-
amination , Paulos stated that the employees were
told, "you should be a member before you vote."
Paulos also testified the employees also were told
"that they had until October 31 to pay-to come in
without [paying] initiation fees," but after that
deadline they would have to pay the initiation fee.
Phillip Melody, secretary-treasurer of Local 871,
testified that he had conversations with groups of
Pomona Division employees who attended the July
21 ratification meeting . His testimony continues: "I
told them that in order to vote on the proposal that
was going to be presented to them, that they were
going to have to be members of the Union, and we
would consider them members of the Union on ap-
plication, but they would not be required to pay
anything until such time as the contract was
negotiated." He denied that he ever told any of
them what would happen with respect to their
membership applications in the event the proposed
contract were rejected at that July 21 meeting. He
denied also the testimony of those witnesses who
stated that he told them that in the event that the
contract were rejected, that their applications for
membership were void. He testified also that after
the meeting adjourned, he did not destroy any of
the applications for membership that were executed
at this meeting.
Credibility
Melody's denials conflict as to some of the salient
issues in this case. Nevertheless, after observing the
witnesses , analyzing the record and the inferences
to be drawn therefrom, this conflict in testimony is
resolved in favor of the versions told by the General
Counsel's witnesses. Based upon the foregoing
recital of the facts in this case, the demeanor of the
witnesses in testifying, and upon the substantial
evidence on the record appraised as a whole, and
on the straightforward testimony of the General
Counsel's witnesses who testified with every ap-
pearance of frankness, fairness, and accuracy,
Melody's testimony is not credited that he did not
tell the employees that in the event the proposed
contract were rejected that the cards they signed
would be void. This impression that the employees
were testifying truthfully became a conviction when
their versions were found to be both consistent with
the attendant circumstances in this case and not
substantially shaken by able counsel for the
Respondent Union who thoroughly cross-examined
them. Nor are there any substantial inconsistencies
"The Radio Officers' Union [A . H Bull Steamship Company) v
N.L.R.B., 347 U.S. 17, 30-32, 39-42, affg. 196 F 2d 960 and 197 F 2d 719
(C.A 2)
15
between Dichirico's testimony at the hearing and
the affidavits he gave to a Board investigator.
Respondent Union's Contention
Counsel for the Union stated at the hearing: "It is
the Union's position that the application form
speaks for itself ... intention and desire on the part
of the Charging Party to become accepted into
membership by the Union and that the circum-
stances under which he executed this application
was such that he is now estopped to deny that he
did not become a member merely because the
obligation or oath was not administered to him
prior to August 14, 1966."
Discussion and Concluding Findings
It is settled law that a union violates Section
8(b)(1)(A) and (2) of the Act, and an employer
Section 8(a)(1) and (3) when they effect the
discharge of an employee for nonpayment of union
dues and the action taken is unauthorized by the
terms of a valid union-security agreement condi-
tioning employment on union membership.10
Under Section 8(a)(3) of the Act, the maximum
permissible form of union security is the union-shop
agreement, that is, an agreement requiring an em-
ployee to join a union 30 days after he obtains a job
or the agreement becomes effective, whichever is
later. An agreement less inclusive in scope-is com-
monly called a maintenance of membership agree-
ment, that is, an agreement requiring persons al-
ready members of the Union when the agreement
becomes effective or who join the Union during its
life to remain members for the term of the agree-
ment. The especial feature of this agreement is that
membership is not compelled under it unless on its
effective date an employee already belongs to the
Union or thereafter voluntarily acquires member-
ship. It means, therefore, that an employee who
resigns his membership before the agreement
becomes effective need not maintain membership
pursuant to the agreement.
The union-security provision in the collective-
bargaining agreement involved herein provides in
article III of the current contract (G.C. Exh. 2) as
follows:"
All employees who are on the Company's
payroll on the date of the signing of this Agree-
ment and who are members of the Union in
good standing on said date, and all present em-
ployees who thereafter become members of
the Union shall, as a condition of employment,
remain members in good standing by tendering
the periodic dues uniformly required as a con-
dition of retaining membership. All employees
" The union -security provision in the proposed contract rejected on Jul;
21 is identical with the same provision in the current contract.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired on or after May 1, 1966, shall, as a con-
dition of employment, become and remain
members in good standing in the Union by ten-
dering the initiation fee and periodic dues
uniformly required as a condition of acquiring
or retaining membership on and after the thir-
tieth (30th) day following the date of execu-
tion of this Agreement or date of hire,
whichever is later. Provided, that any em-
ployee hired on or after May 1, 1966, and who
executes a checkoff authorization as provided
in Article IV, not later than the last day of the
month in which he was hired or date of execu-
tion of this Agreement, whichever is later, shall
not be required to tender said uniform initia-
tion fee until six (6) months after he has sub-
mitted said signed checkoff authorization at
which time he shall tender to the Union an in-
itiation fee equal to the initiation fee uniformly
required less all monies deducted from his pay
as monthly Union dues during the five (5)
months said checkoff authorization was in ef-
fect. Provided further, that any member of the
Union who was hired prior to May 1, 1966,
may withdraw from membership in the Union
during the fifteen (15) day period immediately
preceding the expiration date of this Agree-
ment by sending a written resignation to the
Union with a copy to the Company post-
marked within said fifteen (15) day period.
Any employee who fails to join or maintain
his membership in the Union as provided in
this Article III shall be subject to termination
five (5) days after the Employer has received
written notice from the Union that such em-
ployee has not tendered the periodic dues or
the uniform initiation fee as required by this
Article. The Union agrees to indemnify the
Company and hold it harmless against all and
any suits, claims, demands and liabilities for
damages, back pay or penalties that shall arise
out of or by reason of any action that shall be
taken by the Company pursuant to such writ-
ten notice by the Union.
In construing and applying the union-security provi-
sion involved in this case, it is necessary to be
mindful that the arrangements they exemplify "are
an exception to the general provisions ... against
employer discrimination and 'one seeking to come
within the exception must clearly comply with its
terms." i2
Inasmuch as Dichirico was hired prior to May 1,
1966, he was not required under this union-security
provision to become a member so that his obliga-
tion to pay dues would arise only if he did become
a member. The requirements to become a member
'2 N L R.B v The Radio Officers' Union of the Commercial Telegraphers
Union, AFL [A H Bull Steamship Company], 196 F 2d 960,964 (C A. 2),
affil 347 U.S. 17
are stated in article V, section 2(a) of Local 276's
bylaws which provide:13
An applicant shall be considered a member
when he shall meet all the following require-
ments for membership:
a. Written application for membership.
b. Tender of initiation fee.
c. Acceptance of the application by the
Union.
d. Taking the obligation at the regular
meeting or special initiation class follow-
ing the action upon his application.
For the Respondents to justify the discharge of
Dichirico under the current contract's union-securi-
ty clause, supra, it was incumbent upon them to af-
firmatively prove that he was a member of the
Union during the time the Union claims he was
delinquent in his dues.14 This burden the Respon-
dents failed to meet for the reasons hereinafter ex-
plicated.
It is clear from the evidence detailed above that
Dichirico never became a member as he did not
meet "all" the requirements for membership.
Furthermore, when he signed the membership ap-
plication, the testimony reveals he had no intention
of assuming the obligations incident to becomin* a
member of the Union. All he did was attend a ratifi-
cation meeting to which he was invited by the
Union. Under such circumstances, it cannot be suc-
cessfully contended that he thereby became a
member of the Union.
The discharge of Dichirico in November 1966
was sought and carried out under the terms of the
current contract executed on August 14, 1966, and
it specified, supra, that "All employees who are on
the Company's payroll on the date of the signing of
this agreement and who are members of the Union
in good standing on said date ... shall as a condi-
tion of employment, remain members in good
standing by tendering the periodic dues...."
Well before the date the contract's union-securi-
ty provision became effective, the evidence as
detailed above, shows that Dichirico was never a
member of the Union and therefore, not subject to
the union-security clause in the contract under
which he was discharged. The evidence reveals that
both in its legal connotation and incidence he never
signed a union membership application card with
the intention of becoming a member; he merely
signed the card with the purpose and under the be-
lief that it was necessary to do so in order to vote at
the ratification meeting on July 21. The Union
never advised him that his application was ap-
proved nor did he swear allegiance to the Union
nor was he ever initiated. In fact, it was stipulated
that other employees took the oath of allegiance
G.C Exh. 3.
Montgomery Ward & Co, Incorporated, 121 NLRB 1552, 1557.
HELMS BAKERIES
and were initiated into the Union at swearing-in-
ceremonies scheduled at various special meetings
during the period of time relevant herein. The
Union 's failure to notify Dichirico to appear at
these various special initiation meetings held
between July 21 and November 19, 1966 (the date
of his termination ), manifestly reveals the Union
did not consider him a member.
Moreover , the Union's policy that voting eligibili-
ty would be limited to those signing membership
applications was announced for the first time at the
July 21 meeting . No mention of this policy was
made in the notices of the ratification meeting dis-
tributed to the employees . (G.C. Exhs . 5 and 6.)
Assuming , arguendo , Dichirico was a member
when he signed these union forms , nevertheless, he
was free to resign from the Union under the terms
of the agreement which the union -security provi-
sion therein contemplates will be extended to mem-
bers before its effective date of August 14, 1966,
supra, and which he did, as revealed by the record
evidence.
"A union is , in law, a voluntary association
and under applicable common law principles:
One may become a member of an associa-
tion by formally signing its articles or in
any other way that shows a mutual agree-
ment between himself and the existing
members that he is a member . But mem-
bership is a question of intent and cannot
be established by any fact which fails to
show the existence of a mutual intent that
one shall be a member of an associa-
tion."15
In the absence of a rule regulating the method of
resigning, a member may resign from a voluntary
association at will.16 The facts reveal that Dichirico
exercised the option afforded all employees who
were employed by the Company prior to the effec-
tive date of the contract; namely, the right not to
join the Union. This option, it is found, he exer-
cised for the reasons cited above."
Accordingly it is found that the Respondent
Union in causing this discharge violated Section
8(b)(2) and 1(A) and Respondent Company in ef-
fecting the discharge violated Section 8(a)(3) and
M.
IV. THE REMEDY
Having found that the Respondents engaged in
unfair labor practices , it will be recommended that
they cease and desist therefrom , and that each take
certain affirmative action in order to effectuate the
policies of the Act.
The affirmative relief will include a requirement
that the Respondent Company offer immediate and
full reinstatement to Dichirico to his former or sub-
stantially equivalent position without prejudice to
" Montgomery Ward & Co, Incorporated , 121 NLRB 1552, 1556
16 Communications Workers of America , CIO INew Jersey Bell Telephone
Company ] v. N.L.R . B., 215 F.2d 835 ( C A 2), enfg. 106 NLRB 1322
17
seniority or other rights and privileges. In ac-
cordance with well-established precedent, it will
also be recommended that the Union and the Com-
pany jointly and severally make Dichirico whole for
any loss of pay he may have suffered by reason of
the discrimination against him by the payment to
him of a sum of money equal to that which he nor-
mally would have earned from the date of the dis-
crimination against him to the date of the Com-
pany 's offer of reinstatement , less his net earnings
during the said period. Backpay shall be computed
with interest on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, 291-294, and Isis Plumbing &
Heating Co., 138 NLRB 716. To facilitate the com-
putation, as well as to clarify the named employee's
rights to reinstatement , the Company shall make
available to the Board, upon request, payroll and
other records necessary and appropriate for that
purpose. It is further recommended that the Com-
pany notify Dichirico of his right to reinstatement
upon application if he is serving in the Armed
Forces of the United States. It is also recom-
mended, in view of the special circumstances of this
case , including the joint organizational campaign,
that all the other unions; namely, Locals 87, 94,
166, 186, 381, 431, 572, 683, 871, 952, and 982
who participated in the joint union campaign, post
the appropriate notices at its offices and meeting
halls and that the Company also post notices at all
its plants and depots.
Upon the foregoing findings of fact and upon the
entire record in the case, there are hereby made the
following:
CONCLUSIONS OF LAW
1. Helms Bakeries is an employer.
2. Respondent Union is a labor organization.
3. By discriminating in regard to the tenure of
employment of Theodore S. Dichirico, thereby en-
couraging membership in Respondent Union,
Respondent Company has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. By causing the Respondent Company to dis-
criminate against Dichirico in violation of Section
8(a)(3) of the Act, the Union has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact, conclusions
of law, and upon the entire record in this case, and
" Cf Murphy's Motor Freight, Inc, 113 NLRB 524, enfd 231 F.2d 654
(C A. 3), New Jersey Bell Telephone Company , 106 NLRB 1322
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that:
A. The Respondent, Helms Bakeries, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in Bakery Drivers
Local Union No. 276, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, by discharging employees or in any
other manner discriminating against them in regard
to hire or tenure of employment or any term or
condition of employment, except to the extent per-
mitted by the proviso to Section 8(a)(3) of the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Theodore S. Dichirico immediate and
full reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, as provided
in the above section entitled "The Remedy."
(b) Jointly and severally with the Respondent
Union make whole the above-named employee for
any loss of earnings suffered by him by reason of
the discrimination, as provided in the above section
entitled "The Remedy."
(c) Notify the above-named employee, if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(d) 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 the right to reinstate-
ment, under the terms of this Recommended Order.
(e) Post at its plants and depots in Culver City,
Montabello, San Fernando, Pasadena, Pomona,
Fullerton, Santa Ana, Ventura, Santa Barbara and
Long Beach, all in California, copies of the at-
tached notice marked "Appendix B."18 Copies of
said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by
the Respondent Company's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
11 In the event that this Recommended Order is adopted by the Board,
the words " a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Post at the same places and under the same
conditions as set forth in paragraph (e), above, and
as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice
marked "Appendix C."
(g) Mail to the Regional Director for Region 31
signed copies of "Appendix B" for posting by the
Respondent Union at its meeting halls and offices.
Copies of said notice, on forms provided by the Re-
gional Director, shall, after being duly signed by a
representative of the Respondent Company, be
forthwith returned to the Regional Director for
such posting.
(h) Notify the Regional Director for Region 31,
in writing, within 20 days from the receipt of this
Decision, as to what steps the Respondent Com-
pany has taken to comply herewith.19
B. The Respondent Union, Bakery Drivers Local
Union No. 276, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause the Respon-
dent Company, Helms Bakeries, to discriminate
against employees in violation of Section 8(a)(3) of
the Act.
(b) In any like or related manner restraining or
coercing employees of the Respondent Company in
the exercise of the rights guaranteed in Section 7 of
the Act.
2. Take the following action which is necessary
to effectuate the policies of the Act:
(a) Jointly and severally with the Respondent
Company make whole Theodore S. Dichirico for
any loss of pay suffered by him by reason of the dis-
crimination, as provided in the above section enti-
tled "The Remedy."
(b) Post at Local 276's meeting halls and offices
copies of the attached notice marked "Appendix
C."20 This notice shall also be posted at the meeting
halls and offices of Locals 87, 94, 166, 186, 381,
431, 572, 683, 871, 952, and 982. Copies of said
notice, on forms provided by the Regional Director
for Region 31, after being duly signed by the
Respondent Union's representative, shall be posted
by the Respondent Union immediately upon receipt
thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
19 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
Company has taken to comply herewith
" See fn l8, supra
HELMS BAKERIES 19
posted. Reasonable- steps shall be taken by the.
Respondent Union to insure that said notices are
not altered, defaced, or covered by any other
material.
(c) Post at the same places and under the same
.conditions as set forth in paragraph (b), above, and
as soon as they are forwarded by the Regional
Director, copies of the Respondent Company's at-
tached notice marked "Appendix B."
(d) Mail to the Regional Director for Region 31
signed copies of "Appendix C" for posting by the
Respondent Company at its various plants and
depots. Copies of said notice, on forms provided by
the Regional Director, shall, after being signed by
the Respondent Union's representative, be
forthwith returned to the Regional Director for
such posting.
(e) Notify the Regional Director for Region 31,
in writing, within 20 days from the receipt of this
Decision, what steps the Respondent Union has
taken to comply herewith.21
APPENDIX A
APPLICATION FOR
Initiation Fee Date 7/21/66
New Member
Card No, Initiation Date
Traf. from Local No..
Cards Made City
BAKERY DRIVERS LOCAL UNION NO. 276
Affiliated With International Brotherhood of Teamsters
Chauffeurs, Warehousemen and Helpers of America
Desiring to become a member of the above Union affiliated with
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, I hereby make application for membership.
I hereby designate this Union as my representative in all matters
relating to employment , rates of pay , working conditions , etc„ which
are not now or may hereafter be under consideration between my craft
or class of employees and the company by which I am employed.
The full power and authority to act for the undersigned as
described herein supersedes any power and authority heretofore given
to any person or persons , tabor Unions or Organization , to act for me.
The undersigned hereby certifies that this designation is made
freely and voluntarily and without any interference , restraint, or
coercion from any person or persons whatsoever.
Name Theodore S. Dichirico
Address 2117 - No Eastern
City LA Zone 32 Phone Ca 51115
Occupation driver
Employer Helms Pass
S.S. No. 025-18- 2882 Date of Birth 4/10/24
Citizen Yes Rea. Voter No
Have You Ever Been a Member of A Teamster Local? No
Voucher Signed X Theodore S. Dichirico
Note : Initiation fee must accompany
application . Application must be completed within thirty day
period or all monies forfeited.
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
In accordance with Resolution passed September 29, 1965, the Death
Benefit in Local No. 276 is $500.00 for members in good standing. Your
dues must be paid for the previous month to be eligible.
DEATH BENEFIT INFORMATION LOCAL 276
Card No. Employer Helms Bkv
Full Name
Of Beneficiary Rosa Dichirico
Relationship Wife
Address Beneficiary 2117 N. Eastern Ave.. L.A. Calif.
(Street ) (City) (State)
Signature
Of Member Theodore S. Dichirico
Residence
Address 2117 N. Eastern Ave., L.A. 32, Calif.
(Street ) (City ) (State)
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT encourage membership in
Bakery Drivers Local Union No. 276, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, by
discharging employees or in any other manner
discriminating against them in regard to hire or
tenure of employment or any term or condition
of employment, except to the extent permitted
by the proviso to Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section
7 of the Act.
WE WILL offer Theodore S. Dichirico im-
mediate and full reinstatement to his former or
substantially equivalent position without preju-
dice to seniority or other rights and privileges
he previously enjoyed.
WE WILL, jointly and severally with Bakery
Drivers Local Union No. 276, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, make
whole the above-named employee for any loss
of earnings suffered by him by reason of the
discrimination against him.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
the above-named Union, except to the extent that
such right may be affected by an agreement requir-
ing membership in a labor organization as a condi-
tion of employment, as authorized by Section
8(a)(3) of the Act.
HELMS BAKERIES
(Employer)
writing, within 10 days from the date of this Order, what steps Respondent
Union has taken to comply herewith."
353-177 0 - 72 - 3
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By
(Representative) (Title)
Note: We will notify the above-named employee
if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 10th Floor, Bartlett Building, 215 West
Seventh Street, Los Angeles, California 90014,
Telephone 688-5850.
APPENDIX C
NOTICE TO ALL MEMBERS OF BAKERY DRIVERS
LOCAL UNION No. 276, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify you that:
WE WILL NOT cause or attempt to cause
Helms Bakeries to discriminate against em-
ployees in violation of Section 8(a)(3) of the
Act.
WE WILL NOT in any like or related manner
restrain or coerce employees of Helms Bake-
ries in the exercise of the rights guaranteed in
Section 7 of the Act.
WE WILL, jointly and severally with the
above-named Company, make whole Theodore
S. Dichirico for any loss of pay suffered by him
by reason of the discrimination against him.
Dated By
BAKERY DRIVERS LOCAL
UNION No. 276,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 10th Floor, Bartlett Building, 215 West
Seventh Street, Los Angeles, California 90014,
Telephone 688-5850.