Intl. Union of Electrical Workers, Local 601

National Labor Relations Board - Board Decisions

Feb 3, 1970

180 N.L.R.B. 1062 (N.L.R.B. 1970)

1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Electrical, Radio and
Machine Workers, Local 601 , AFL-CIO
( Westinghouse Electric Corporation ) and Ralph A.
Cortazzo, Thomas L. Walters, and Frank S.
Patton . Cases 6-CB-1635, 6-CB-1640, and
6-C B-1641
February 3, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 30, 1969, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the General Counsel filed a brief in answer to
the Respondent's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case 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 briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(b)(1)(A) of the
Act by threatening employees of the Employer with
discharge or loss of employment if they refused to
sign authorization cards for union dues checkoff.
This finding is based upon several incidents which
occurred when employees attempted to verify,
through Respondent's stewards, reports by the
Employer's supervisors that failure to sign checkoff
cards would result in discharge. When employees
Frank S. Patton, Thomas L. Walters, George Hale,
and Michael Dugan confronted union stewards with
these reports, the stewards expressly confirmed their
validity. In addition to these direct threats, the Trial
Examiner found that indirect threats were made to
employees Joseph Puchak and Otto Jancef when, in
'The Board finds it unnecessary to consider or pass on the Trial
Examiner's ruling permitting the refreshing of employee Michael Dugan's
recollection by means of a pretrial affidavit while he testified with regard
to a conversation with Section Steward John Dominick. In view of
Dugan 's later conversation with Division Steward Stephen Hritz, reliance
on the Dugan-Dominick exchange is not required for the finding of a
Section 8(bXIXA) violation
a similar situation , the Union steward told them to
read the termination provision of the contract, and
he also stated that loss of employment was
"possible" if checkoff cards weren 't signed . Because
the contract also contained a maintenance of
membership clause under which these employees
were obligated to continue their membership at that
time, this exchange carried a clear implication that
job loss would follow a failure to sign checkoff
cards.
2. The Trial Examiner found additional conduct
violative of Section 8(b)(IXA) based on a letter sent
by the Respondent to eight employees who did not
sign checkoff cards and who attempted to tender
dues instead by personal checks mailed to the
Union . The checks were returned with the letter
which stated that , according to established union
procedure and the collective - bargaining agreement,
dues could only be paid by the checkoff system;
therefore , because of their failure to comply, each
recipient of the letter was no longer a member in
good standing of the Union . Although no express
threat of loss of employment was made in this
letter , the Trial Examiner concluded, nevertheless,
that it constituted an implied threat in view of (a)
the setting of direct and indirect threats found,
supra , in which it was sent; and (b ) the fact that
there was a union -security provision in the contract.
We agree that the letter violated Section
8(b)(1)(A) of the Act. In reaching this conclusion,
however , we do not find it necessary to rely on any
surrounding , threatening circumstances. The
significant factor in this situation is that the only
way in which an employee was permitted to comply
with his obligation to remain a union member in
good standing under a lawful union-security clause
was to execute a dues checkoff authorization card.
Such an obligation deprives the employee of his
right to select or reject the checkoff system as the
method by which to pay his periodic dues to the
Union . The Board has repeatedly held that dues
checkoff authorizations must be made "voluntarily,"2
and that an ; employee has "a right under Section 7
of the Act to refuse to sign checkoff authorization
cards."3 Any conduct , express or implied, which
coerces an employee in his attempt to exercise this
right clearly violates Section 8 (b)(1)(A).
3. The Trial Examiner , to remedy the violation by
virtue of Respondent ' s coercively obtaining checkoff
cards from employees Patton , Walters, Hale,
Dugan, Puchak , and Jancef, recommends that the
Respondent be ordered to cease giving effect to
these cards and to reimburse the employees for all
dues checked off under the illegally acquired
authorizations, with interest . While we agree that no
effect, henceforth , should be given to these cards,
'International Harvester Company, 95 NLRB 730, 733.
'Metal Workers' Alliance, Incorporated (TRW Metals Division, TR W,
Inc ), 172 NLRB No. 34; International Union of District SO (Ruberoid
Company), 173 NLRB No. 20; American Screw Company, 122 NLRB
485, 489.
180 NLRB No. 168
INTL. UNION OF ELECTRICAL WORKERS, LOCAL 601 1063
and that the employees in question must be
permitted to decide, voluntarily, whether they want
to authorize checkoff, we do not agree that, in the
circumstances of this case, the dues collected
pursuant to these improperly obtained cards should
be refunded, with interest. Throughout the entire
period herein there has been in effect a contract
covering these employees which contained a lawful
maintenance-of-membership clause. These
employees were then under a continuing obligation
to remain members of the Union and at no time
since that time have any of them sought to withdraw
from the Union.4 Their sole concern has been to
decline to pay union dues by checkoff, not to cease
paying any dues at all. In prior cases involving dues
collected under coerced checkoff cards, the Board
has ordered reimbursement, with interest, where the
payments themselves were made under coercion.'
Where the contract was found to be legal, the Board
has specifically limited recovery of unlawfully
compelled dues payments to the period prior to the
signing of the lawful union-security contract, and for
the period subsequent to the contract-signing, the
Respondent Union was ordered only to cease and
desist from using the checkoff cards unless it was
made clear to employees that they had an
alternative means for paying dues.6
Therefore, because the employees herein were
obligated to pay union dues by some method, and
notwithstanding that the Respondent's procedure for
collection was unlawful, we nevertheless conclude
that to order reimbursement of the moneys thereby
collected at this point would be an exercise in
futility. Clearly, the granting of interest with any
such reimbursement would be a windfall to the
employees since they would have had to pay out
money for union dues during this period in any
event. In adopting the Trial Examiner's
Recommended Order, we shall not adopt the
paragraph directing reimbursement in this respect.
In all other respects we shall adopt the remedial
order recommended by 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
Recommended Order of the Trial Examiner, as
modified below , and hereby orders that the
Respondent , International Union of Electrical,
Radio and Machine Workers, Local 601, AFL-CIO,
their officers , agents, and representatives , shall take
The collective-bargaining agreement provides that during the period
from June 4 to June I I of each year, employees shall have the right to
resign from the Union without any further obligation to obtain or maintain
union membership. None of the employees in question availed themselves
of this withdrawal privilege, and they all continued to be union members
'Majestic Weaving Co., Inc., of New York, 149 NLRB 1523 See also
Clement Brothers Company, Inc., 165 NLRB No 87, TXD.
'Ruberold Company, supra, TXD and paragraphs 2(a) and (b) of the
Recommended Order
the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Delete paragraph 2(b) and reletter the present
paragraph 2(c) as paragraph 2(b).
2. Delete the fourth indented paragraph of the
notice attached to the Trial Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A. DOWNING, Trial Examiner. This proceeding
under Section 10(b) of the National Labor Relations Act
as amended was heard at Pittsburgh, Pennsylvania, on
May 14, 1969, pursuant to due notice The complaint,
which was issued on April I, 1969, on charges filed
January 10, 22, and 29 and March 31, alleged in
substance that Respondent engaged in unfair labor
practices proscribed by Section 8(b)(l)(A) of the Act by
threatening employees of Westinghouse Electric
Corporation (Westinghouse and Company herein), with
discharge or loss of employment unless they signed dues
checkoff authorization cards for Respondent Union.
Respondent answered on April 9, denying the unfair labor
practices as alleged.
Upon the entire record in the case and from my
observation of the witnesses, I make the following
Findings of Fact
1. THE BUSINESS OF THE EMPLOYER; RESPONDENT AS A
LABOR ORGANIZATION
I find on the basis of undenied allegations of the
complaint that the Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act,' and that Respondent Union is a labor
organization within the meaning of Section 2(5) of the
Act.
11. THE UNFAIR LABOR PRACTICES
A Introduction and Issues
Respondent has been the recognized bargaining
representative since 1949 of the production and
maintenance employees at the Company's East Pittsburgh
plant where the employees number some 6,900 and where
there are some 380-odd stewards, including 16 division
stewards and 70 subdivision stewards. The current
contract contains provisions for maintenance of
membership and for the checkoff of union dues for
employees whose signed authorizations are received by the
Company. Dues were $1.25 per week prior to 1969, and
since 1958 all dues payments have been required to be
made by checkoff pursuant to Executive Board resolution,
approved by the membership, except for two members
who were permitted to pay their dues annually in advance.
In the week of September 18, 1968, the International
Union, by convention action, raised the minimum dues by
$1 per month to be effective January 1, 1969 Thereafter
the International sent out to its locals a referendum on
'Westinghouse, a Pennsylvania corporation , with its principal office at
Pittsburgh , Pennsylvania, and a plant at East Pittsburgh, is engaged in the
manufacture and sale of electrical products . It purchases and receives
annually, directly from extrastate points, goods and materials valued in
excess of $50,000
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
various amendments, including the dues increase, and
many of the locals, including Local 601, ratified the
International's action. Local 601 also conducted a secret
ballot vote on or around November 10 concerning the
Increase in weekly dues from $1.25 to $1.50 a week, and
the resolution passed by a vote of 435 to 61.
On December 23, the President of Local 601 wrote
Westinghouse informing it of the increase in dues and
stating that the Company was authorized to cancel all
$1 25 dues deductions as of January 8, 1969, and to
deduct $1.50 weekly thenceforth for all members who
signed dues authorizations for the latter amount.
In the meantime the Union through its stewards
distributed in November and December new checkoff
cards and solicited the signatures of employees. Their
efforts were successful in all except a few cases, some of
which led to this proceeding. The General Counsel offered
testimony concerning some five incidents during which
section stewards and division stewards allegedly made
threats concerning the failure to sign the new cards, and
he claimed that a further threat was, by implication,
contained in a letter sent in February, 1969, which
rejected attempts to pay dues by personal checks.
Respondent in turn offered testimony in denial of the
alleged threats and it contended further that the letter fell
within the proviso to Section 8(b)(l)(A) concerning the
Union's right to prescribe its rules regarding the
acquisition and retention of membership.
Though Respondent raised some question at the hearing
concerning the agency status of its stewards as concerned
the conduct which was attributed to them, it does not
renew the contention in its brief and has presumably
abandoned the point. In any event, the evidence
established that the stewards were entrusted with the chore
of distributing the new cards and soliciting the signatures
of the employees and it was during the performance of
that task that the alleged threats were made. It is an
elementary rule of agency law that a principal is
responsible for the acts of its agents done in furtherance
of the principal's interest and within the scope of the
agent's general authority, even though the principal may
not have authorized the specific act in question. As the
Board held in Hampton Merchant's Association, 151
NLRB 1307, 1308, in passing on a situation similar to the
present one, "It is enough if the principal has empowered
the agent to represent it in the general area in which the
agent acted."
I therefore conclude and find that Respondent is
responsible for the conduct of its stewards and division
stewards in the incidents reviewed in the next section, and
it may also be noted preliminarily that those incidents
arose from employee attempts to verify through the
stewards statements made by Westinghouse supervisors
concerning the effect on their employment if they failed to
sign the new checkoff cards.:
B. The Testimony
The General Counsel's witnesses testified to alleged
threats made by two section stewards, Thomas McGivern
and John Dominick, and two division stewards, David
This case was originally consolidated for hearing with Case 6-CA-4461,
in which Westinghouse was charged as respondent with violations of
Section 8(aXl) and (2) of the Act by soliciting employees to sign dues
checkoff cards for the Union and by threatening employees with discharge
if they did not do so Following a settlement of the latter case, the
Regional Director issued an order on May 14 , severing it from the present
proceeding
McKeag and Stephen Hritz. Frank Patton and Thomas L.
Walters worked under the immediate supervision of
Charles Trimble and their section steward was Thomas
McGivern. Patton testified that on or about January 9,
Trimble informed him that he would be taken off the rolls
if he did not sign the dues authorization card. Thereafter
Patton asked McGivern if that were true and McGivern
said yes. A day or so later Patton approached McGivern
who was talking with Trimble and stated that he wanted a
card to sign because he did not want to be fired.
McGivern replied that he did not have one at the time,
but he later gave one to Patton, who signed it and gave it
to McGivern. Walters testified that after Trimble
informed him that if he did not sign a dues card he would
be removed from the rolls, he immediately sought out
McGivern and asked, "What is this about my being fired
for not signing a dues authorization card?" McGivern
replied that he did not know. Walters later sought
verification from Hritz, asking the same question he had
asked McGivern Hritz replied, "Right, but don't feel
badly, because my name is on the list also." Four days
later Walters signed a card.
Walters admitted on cross-examination that his pretrial
affidavit did not mention the name of either McGivern or
Hritz and that it contained the statement, "No union
officer spoke to me about signing a dues checkoff
authorization." Admitting further that at the time he filed
his charge and at the time he gave his statement he knew
that Hritz and McGivern had spoken to him, Walters
testified that the Board agent did not ask him concerning
the Union representatives.
George Hales, whose division steward was David
McKeag, testified that sometime in January while his
foreman was speaking with him, McKeag came up and
asked when he was going to sign his checkoff card. When
Hale replied that he was not going to sign it, McKeag
stated "Well, you will either sign the card or you won't be
here." Hale was later transferred to a new section where
his steward inquired why Hale had not signed the checkoff
card Hale explained that he had been out the day the
cards were distributed and had not received one. Hale
signed the card that day.
Michael Dugan testified that sometime in January his
section steward, John Dominick, approached him with a
card and asked if Dugan would sign it for the union dues.
Dugan explained he was expecting to retire on pension
shortly and did not know whether he should sign.
Dominick stated that was up to Dugan. Upon refreshing
his recollection from his pretrial affidavit, Dugan added
that Dominick also stated that he would like for Dugan to
sign the card because he could probably lose his job on
account of it.
Dugan testified further that some 3 days later Hritz
spoke to him, advising that Dugan sign the card even if he
were going out on pension because, "the Company could
do you some damage or could discharge you." Dugan
promised to see Dominick, get the card and sign it,
though there was a lapse of some 2 or 3 weeks before he
did so.
Joseph Puchak worked under the immediate supervision
of Tom Dillis, and Hritz was his division steward. Puchak
testified initially to a conversation in January when Dillis
told him he would be taken off the rolls if he did not sign
a checkoff card. Puchak testified further that on January
20, a group of employees which included Puchak and Otto
Jancef called Hritz over and asked whether an employee
could be discharged, or what would happen, if he did not
sign the Union dues card. Hritz replied he did not know
INTL. UNION OF ELECTRICAL WORKERS , LOCAL 601
and that they should read the contract. When Jancef
stated he did not have one, Hritz took out a copy and
pointed to some provision in it. Puchak asked if that
meant he could lose his job, and Hritz replied, "Its
possible. I don't know what they would do Read your
contract; that's what the contract writes. It says so "
Puchak agreed that Hritz did not give him "any threat or
anything" but simply told him to go by the contract.
Otto Jancers testimony was substantially to the same
effect. He agreed that Hritz replied "I don't know, read
your contract," produced a copy of the contract and
pointed to a provision on page 8 which covered the
procedure to be followed by the Company for termination
of employment, which read in part as follows: "The
Company shall be obligated under this section to
terminate the employment of any employee by reason of
his failure to obtain or maintain membership in the Union
as required by this section upon receipt or written request
for such termination from the Union." Jancef asked for
time to study the contract and about a week later he
informed Hritz that though he did not like the way it put
to him, he would sign the card. Hritz commented,
"There's no way out of a contract; a contract is a
contract."
Jancef admitted that his pretrial affidavit contained the
statement that Hritz said, "Read the contract," and
nothing else was said. Jancef explained that the
conversation was a casual one and that as he did not think
it had any bearing because there was no direct threat, he
"made it brief." The brevity of the affidavit was further
demonstrated by the fact that it contained no reference to
the production of the contract or to Hritz' pointing out of
a provision in it and it also did not cover the second
conversation in which Hritz commented further on the
binding effect of the contract.
Respondent's stewards testified to each of the incidents
mentioned in the foregoing testimony except for the
Puchak-Jancef incident. McGivern testified that Patton
reported to him the foreman's statement that if he did not
sign a checkoff card the Union might ask the Company to
dismiss him from the rolls and that he replied, "There
wasn't a thing [he] could do about that." Patton stated
that he was going to the NLRB. McGivern denied that he
told Patton or any employee he would be subject to
discharge if he did not sign a new card.
As for Walters, McGivern testified that Walters was
concerned about whether the Union could charge more
than 25 cents weekly increase and he assured Walters it
could not.
McKeag testified that what he told Hale "exactly" was
"[l]f you don't sign your card as a dues paying member,
you will lose your membership," and he denied saying
that Hale would not be there or would be discharged if he
did not sign. McKeag testified further that there were
discussions in Executive Board meetings of the fact that
the Union had one method of payment, a checkoff of
dues, and that, "If you don't pay your dues, you are not a
member of the Union . . . in good standing."
Dominick admitted that he discussed with Dugan the
signing of a checkoff card, that Dugan stated he was
going on pension , and that he (Dominick ) replied that was
up to Dugan and to think about it and let him know.
Dominick denied telling Dugan he would be subject to
discharge if he did not sign the card.
Hritz testified Dugan also raised with him the matter of
signing the dues checkoff card in the light of the fact that
Dugan was going on pension shortly and that he advised
Dugan to continue to maintain his Union membership
1065
because the card "could come in handy" when he went
out on pension. Hritz denied telling Dugan that if he did
not sign the card he would be discharged.
Hritz testified he had two discussions with Walters In
the first, Walters inquired whether there was any provision
in the National Agreement concerning dues increases, and
Hritz pointed out a paragraph which provided for changes
no oftener than once in 2 years. In the second, Walters
reported what his foreman told him about his name being
on a list and Hritz replied that Walters should not worry
about it because Hritz' name was on the list also., Hritz
denied telling Walters he would be discharged if he did
not sign a new card and denied that he had any further
conversation with Walters concerning the card.
Hritz was not questioned concerning the Puchak-Jancef
incident though he testified that he recalled it.
Respondent also offered the testimony of Paul
Carmichael, president of Local 601, and Business Agent
James A. Ferace that the stewards were directed that they
might explain to the employees the obligation to maintain
membership in the Union as the contract provided; that
there was no discussion within the Union as to whether
employees would or might be discharged if they did not
sign a new card; and that nothing was said to the stewards
about what they were authorized to say when an employee
refused to sign a card. Ferace also testified that at no time
since November 1968 had the Union requested that any
employee be terminated for nonpayment of dues.
Concluding Findings
Resolving preliminarily the credibility issues, it has
been noted that most of the incidents reviewed above
arose when employees attempted to verify through
Respondent's steward reports by supervisors that failure
to sign a new checkoff card would result in discharge.
Under the testimony of the employees the stewards
confirmed those reports, both directly and indirectly.
Though the stewards denied the instances of express
confirmation, their testimony did not refute those of
indirect confirmation. Thus McGivern admittedly told
Patton there was nothing he could do about it when
Patton reported what his foreman said. And Hritz made
no denial of the Puchak-Jancef testimony under which
Hritz, without directly confirming the threat of job loss,
endeavored nonetheless to convince them that the contract
itself governed the matter of the dues checkoff and would
or might justify dismissal under the maintenance of
membership provisions if the checkoff cards were not
signed.
Furthermore Respondent's contention on credibility
were based mainly on alleged inconsistencies between the
testimony and pretrial affidavits given to the Board, but
analysis shows that such variances as existed were not
such as to reflect adversely on the credibility of the
witnesses . Hale's affidavit, for example, used the word
"discharge" whereas he testified that McKeag actually
said, "You won't be here." The variation was plainly
inconsequential , particularly in the light of Hale's
testimony which showed he understood McKeag's
statement to mean he would be discharged.
In Dugan 's case Respondent objected to the fact that
Dugan was permitted to refresh his recollection from his
affidavit on direct examination and thereupon recalled
'Hritz testified that he had heard of some list (apparently prepared by
the Company ) and that he heard also his name was on it though he never
saw it There was no other evidence that the list actually existed.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Dominick said he could probably lose his job.
Jancef's affidavit attributed to Hritz the sole statement,
"Read the contract " Jancef's explanation concerning that
has previously been noted, as have other respects in which
his brief affidavit did not attempt to cover all his
testimony as a witness. The failure of an investigator to
develop by affidavit the full range of testimony which may
later be adduced from the affiant as a witness does not aid
impeachment, Southeastern of Dallas Optical Co , Inc ,
153 NLRB 33, 38, particularly since there was
corroborative testimony by Puchak and no denial was
made. Witnesses are frequently called upon to testify
concerning matters they were not questioned about during
investigation (see Walters' testimony, supra) and
sometimes also they may recall for the first time on the
stand matters previously forgotten
Finally, in Patton's case Respondent assigned
conflicting statements concerning Patton's intention of
going to the Labor Board Aside from the fact the point
was purely collateral and remote from the issues, Patton
testified he believed his statement related to matters other
than the signing of the dues checkoff card. Infinitely more
significant was McGivern's admission that he told Patton
there was nothing he could do if the Union should request
the Company to discharge Patton for failing to sign the
checkoff card.
As is seen from the foregoing analysis the conflicts
concerning the direct threats present no crucial issue since
the testimony as a whole established at a minimum that
the stewards confirmed the threats by implication and by
failing affirmatively to assure the employee that failure to
sign the dues checkoff would not impair their job rights.
Four witnesses testified that the stewards went a step
further and expressly confirmed the threats. Under the
circumstances shown by the evidence, I credit that
testimony over the denials of the stewards,' and I turn to
the question whether the facts establish a violation of
Section 8(b)(I)(A) of the Act.
It is established law that employees, although subject to
the provisions of a lawful security agreement, have a right
under Section 7 of the Act to refuse to sign checkoff
authorization cards. Metal Workers' Alliance Inc (TRW
Metals Division), 172 NLRB No. 34, District 50 Mine
Workers (Ruberoid Company), 173 NLRB No. 20,
American Screw Company, 122 NLRB 485, 489. It is
similarly established that by threatening employees with
discharge for engaging in their right to refrain from
executing such authorizations a union violates Section
8(b)(l)(A) of the Act. Ibid I therefore conclude that by
the direct threats which I have found above, Respondent
restrained and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act.
I find further that similar threats were implicit, in the
context of the union-security situation, in Hritz' conduct
vis-a-vis Puchak and Jancef By pointing out the
termination provisions of the contract and by stating that
loss of employment was "possible," Hritz plainly sought
to link the Union's requirement for paying dues by
checkoff with a loss of employment pursuant to the union
security provisions. Without further explanation or
qualification, the employees could interpret Hritz'
statements only as carrying the threat of job loss, cf
United Stone and Allied Products Workers of America
(Gibsonburg Lime Products Co.). 121 NLRB 914, 922,
'It may also be noted that Respondent did not seek to corroborate the
stewards on two of the occasions when, under the testimony of Patton and
Hale, foremen were present during the conversations
and when they did so, Hritz confirmed that interpretation
by repeating to Jancef his earlier representation that the
contract controlled the situation.
Thus I conclude and find that Hritz' statements to
Puchak and Jancef were reasonably calculated to imply
that the Union would take measures leading to loss of
employment if the employees failed to sign new checkoff
cards' and that Respondent thereby violated Section
8(b)(I)(A). Gibsonburg, supra, Vickers Incorporated, 152
NLRB 793, 795
Furthermore, Respondent's conduct as found herein
was plainly not privileged under the proviso to Section
8(b)(I)(A), which accords to a union the right to
"prescribe its own rules with respect to the acquisition and
retention of membership," for the stewards made no
attempt to assure the employees that failure to sign such
cards would not result in impairment of job rights but
sought instead, both directly and indirectly, to convey the
opposite impression. Except as permitted by the proviso, a
union's right to prescribe rules does not extend to
interference with the relationship between employee and
employer. International Union, UA W (John I Paulding,
Inc ), 137 NLRB 901, 904, and cases there cited at
footnote 5.
C The Letter
The remainder of the case , added by amendment, arose
when some eight employees who failed or refused to sign
the new checkoff forms attempted to pay their dues
instead by personal checks mailed to the Union On or
about February 11, Ferace returned the checks of those
employees (John Clear, Sidney Clickson , James Jackson,
Ralph Cortazzo , Walter Lominski , Wilbert Schiffmacher,
James Sloan, and Stephen Martin ) by letters which read
as follows:
We are returning herewith your check in the amount
of $6.00 for delinquent dues because it is contrary to
our established dues collecting procedure.
The check-off system as described in the negotiated
National Agreement with the Westinghouse Electric
Corporation, clearly and unequivocally defines the
method to be followed for payment of dues Your
failure to comply with the membership action on
November 10, 1968 to raise the dues for the purpose of
establishing a Strike Insurance Fund , certainly
disqualifies you for any special consideration.
You have failed to sign a new check -off card as
required by the National Agreement , so therefore, you
are not a member in good standing of Local 601,
IUE-AFL-CIO.
It is plain as the General Counsel concedes that those
letters, on their face , may be considered as permissible
conduct , privileged under the proviso to Section
8(b)(I)(A) But that does not resolve the issue, for in
determining whether a violation occurred it is necessary to
view the loss of membership of which the employees were
informed against the background and the total context of
the situation which led to rejection of the dues payments.
American Federation of Television and Radio Artists
(AFTRA), 155 NLRB 479, 481; see W. T Grant
Company, 168 NLRB No. 16, TXD, and cases there
cited.
Thus Respondent had long required its members (with
two exceptions ) to pay all dues by checkoff authorizations.
'A similar implication was contained in the statement which McGivern
admitted making to Patton, as previously noted
INTL. UNION OF ELECTRICAL WORKERS, LOCAL 601
In December it notified the Company to cancel all old
checkoff cards (for $1.25) and to deduct $1.50 weekly
under new ones as of January 8. In January certain
supervisors solicited new checkoff cards with threats of
loss of employment, which threats were reported to
Respondent's stewards, who confirmed them and who
made similar threats. All such threats were made in the
immediate context of the Union's security provisions of
the contract under which the Company was obligated to
dismiss on the Union's request any employee who did not
maintain his membership.
Against that immediate background Ferace rejected
attempts by eight employees to pay their dues by personal
checks, informing them that the checkoff system
contained in the contract was "unequivocally" to be
followed in paying dues and that the employees were no
longer members in good standing.
In the foregoing setting it is not determinative that the
letter made no express or direct threat of loss of
employment, for an implied threat is no less coercive than
one which is phrased in express terms. Gibsonburg Lime
Products Company, supra, 121 NLRB at 922. Here the
employees were informed that they could retain or achieve
membership in good standing which the contract made a
condition of employment, only by paying their dues by
checkoff which "necessarily conveyed the implied threat to
employees that they risked discharge if they failed to
comply ...." Namm's Inc., 102 NLRB 466, 467.
Thus as in District 50 UMW (Ruberoid Company),
supra, 173 NLRB No. 20, the sole means by which the
employees could maintain their membership was by
signing a checkoff card, and they had no alternative and
no choice but to authorize the checkoff or to risk the loss
of their jobs. But each employee had a right to sign or not
to sign a checkoff authorization (Id , citing American
Screw Company, 122 NLRB 485, 489) and he must be
given the opportunity to decide that for himself. Though
the employees here sought to comply with their obligation
under the Union security provision of the contract,
Ferace's letter deprived them of their right to select the
method of paying their dues. The fact that the
membership had approved the checkoff method of paying
dues and the increase in dues from $1.25 to $1.50 weekly
furnished no defense, for majority approval cannot negate
the statutory right of each dissenting member to decide
for himself whether or not to execute the cards. Ruberoid,
supra, footnote 2 thereof.
I therefore conclude and find that in the light of the
union security situation and the conduct found in Section
B, supra, Respondent's letter of February 11 restrained
and coerced employees in the exercise of their Section 7
rights.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
Conclusions of Law
1. By threatening employees of the Company with
discharge or loss of employment unless they sign dues
checkoff authorization cards for the Union, Respondent
restrained and coerced employees in the exercise of their
Section 7 rights and thereby engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
1067
The Remedy
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
as specified below which I find necessary to remedy and
to remove the effects of the unfair labor practices and to
effectuate the policies of the Act.
I shall recommend that Respondent cease and desist
from giving effect to the checkoff authorizations obtained
through coercion from Frank S. Patton, George Hale,
Thomas L. Walters, Michael Dugan, Joseph Puchak, and
Otto Jancef and that it reimburse said employees for all
dues checked off under such authorization since January
9, 1969. Clement Brothers Company, Inc., 165 NLRB
No. 87; International Union of District 50 (Ruberoid
Company), 173 NLRB No. 20.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
RECOMMENDED ORDER
International Union of Electrical Radio and Machine
Workers Local 601, AFL-CIO, its officers, agents,
successor, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees of the Company with
discharge or loss of employment unless they sign dues
checkoff authorization cards for it or for any other labor
organization.
(b) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Notify Westinghouse Electric Corporation not to
give effect to the checkoff authorizations obtained through
coercion from Frank S. Patton, George Hale, Thomas L.
Walters, Michael Dugan, Joseph Puchak, and Otto
J ancef.
(b) Reimburse said employees for all dues checked off
under said authorizations since January 9, 1969, with
interest thereon at the rate of 6 percent per annum Isis
Plumbing & Heating Co., 138 NLRB 716.
(c) Post at its offices and meetings places in the vicinity
of Pittsburgh and East Pittsburgh, Pennsylvania, copies of
the attached notice marked "Appendix."' Copies of said
notice to be furnished by the Regional Director for
Region 6 shall, after being duly signed by Respondent's
representative, be posted immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter
in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall
be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Forward signed copies of said appendix to the
Regional Director for posting by Westinghouse Electric
Corporation, it being willing, at all locations where notices
'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 a United States Court of
Appeals Enforcing an Order" shall be substituted for the words "A
Decision and Order "
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees are customarily posted.
(e) Notify the Regional Director for Region 6, in
writing , within 20 days from the receipt of this Decision
what steps Respondent has taken to comply herewith '
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 6 , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF
ELECTRICAL RADIO AND MACHINE WORKERS, LOCAL
601, AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT threaten employees of Westinghouse
Electric Corporation with discharge or loss of
employment unless they sign dues checkoff
authorizations for us.
WE WILL NOT in any like or related manner restrain
or coerce said employees in the exercise of their rights
guaranteed by Section 7 of the Act except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section
8(a)(3) of the Act.
WE WILL notify Westinghouse Electric Corporation
not to give effect to the checkoff authorizations
coercively obtained from Frank S. Patton, George
Hale, Thomas L. Walters, Michael Dugan, Joseph
Puchak, and Otto Jancef.
WE WILL reimburse the above-named employees for
all dues checked off under said checkoff authorizations
since January 9, 1969.
Dated ' By
INTERNATIONAL UNION
OF ELECTRICAL RADIO
AND MACHINE WORKERS,
LOCAL 601, AFL-CIO
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1536 Federal
Building 1000 Liberty Ave., Pittsburgh, Pennsylvania,
Telephone 412-644-2677.