Int'l Union, United Automobile, Aircraft, etc.

National Labor Relations Board - Board Decisions

Jun 26, 1962

137 N.L.R.B. 901 (N.L.R.B. 1962)

INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 901
International Union , United Automobile , Aircraft , Agricultural
Implement Workers of America, AFL-CIO and Local 899,
International Union United Automobile , Aircraft , Agricultural
Implement Workers of America, AFL-CIO [John I. Paulding,
Inc.] and George Young. Case No. 1-CB-694. June 26, 1962
DECISION AND ORDER
Upon unfair labor practice charges filed on March 9, 1961, by
George H. Young, an individual, against International Union, United
Automobile, Aircraft, Agricultural Implement Workers of America,
AFL-CIO (herein called Respondent International), and Local 899,
International Union, United Automobile, Aircraft, Agricultural Im-
plement Workers of America, AFL-CIO (herein called Respondent
Local), the General Counsel of the National Labor Relations Board
by the Regional Director for the First Region issued a complaint and
notice of hearing, alleging that the Respondents requested the termina-
tion of employment of certain employees of John I. Paulding, Inc.
(herein called Paulding), in violation of Section 8(b) (2) and (1) (A)
of the National Labor Relations Act, as amended, by the Labor-
Management Reporting and Disclosure Act of 1959. Copies of the
complaint, charges, and notice of hearing were served on the Re-
spondents and the Charging Party.
With respect to the unfair labor practices, the complaint alleged
that the collective-bargaining contract between the Respondents and
Paulding contained a union-security provision pursuant to which the
Respondents demanded the discharges of certain individuals for fail-
ure to tender dues, and thereby did engage in and were engaging in
unfair labor practices affecting commerce within the meaning of Sec-
tion 8(b) (2) and (1) (A) of the Act.
On April 28, 1961, all the parties entered into a "Stipulation of
Facts" waiving a hearing and the taking of testimony before a Trial
Examiner, the making of findings of fact and conclusions of law by
a Trial Examiner, and the issuance of an Intermediate Report and
Recommended Order. They further agreed to submit the case directly
to the Board for findings of fact, conclusions of law, and an order
based upon the record to consist entirely of the charges, complaints,
and "Stipulation of Facts."
On May 5,1961, the Board approved the stipulation and transferred
the case to itself. Thereafter the General Counsel filed a brief.
Upon the basis of this stipulation and the entire record in this case,
the Board' makes the following:
1 Pursuant to Section 3(b) of the Act the Board has delegated its powers in connection
with this case to a three -member panel [Chairman McCulloch and Members Rodgers
and Leedom].
137 NLRB No. 104.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY INVOLVED
John I. Paulding, Inc., is, and at all times material herein has
been, a corporation duly organized under the laws of the State of Mas-
sachusetts, with its principal office and place of business on Kings
Highway, New Bedford, Massachusetts.
During the course and conduct of its business operations for the
calendar year 1960, John I. Paulding, Inc., has sold and distributed
to parties outside of Massachusetts electrical fixtures and receptacles
of a value in excess of $50,000. The parties admit, and we find, that
John I. Paulding, Inc., is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft, Agricultural
Implement Workers of America, AFL-CIO, and Local 899, Interna-
tional Union, United Automobile, Aircraft, Agricultural Implement
Workers of America, AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Paulding and the Respondents have maintained collective-
bargaining agreements since 1958. On January 11, 1960, they exe-
cuted a new 1-year contract which was to continue from year to year
unless either party gave 60 days' written notice to terminate. Proper
notice was given and the contract expired on January 11, 1961. A
new agreement was reached on January 23, 1961.
Both the 1960 and the 1961 contracts, like the preceding contracts,
contained clauses which provided that those employees of Paulding
who were not members of the Respondents at the time the contract
was executed would not be required to join the Respondents. How-
ever, all employees who had joined the Respondents before the execu-
tion of the contract and employees hired subsequent to the execution
of the contract would be required to be members of the Respondents
as a condition of continued employment.
On various dates from December 23, 1960, to January 19, 1961, 10
employees, listed in Appendix A, signed cards in which they resigned
from membership in Respondents and revoked their checkoff authori-
zations. At that time the 10 employees were members in good stand-
ing and their dues were paid up through January 1961. The resigna-
tion cards were turned over to an attorney, Young, who in turn gave
them to Deputy Sheriff Lima to serve on the president of the Respond-
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 903
ent Local, Dunham. Lima served the cards on Dunham in two groups,
one on January 17 and one on January 19 .1
The parties stipulated and the record shows that the employees
mentioned above failed to follow the procedures required by their
membership and checkoff agreements and Respondents' constitution
and bylaws insofar as these documents pertain resignation or cancella-
tion of the checkoff and membership agreements; and that these
employees failed to file any grievance or present any question for arbi-
tration pursuant to article IV of the January 11, 1960, contract or
article IV of the January 23, 1961, contract regarding resignation
from Respondents or cancellation of membership and checkoff agree-
ments with Respondents.
The new contract was executed on January 23. On February 28,
the Respondents sent Paulding and each of the employees notice that
the employees were in default for their February dues. On March 10,
the Respondents filed a grievance with Paulding to oblige the em-
ployees to pay the dues owing to them or to discharge the em-
ployees pursuant to the maintenance-of-membership clause enacted on
January 23,1961.
Conclusions
The General Counsel contends that these employees were no longer
members of the Respondents on January 23 and that the maintenance-
of-membership clause by its own terms does not apply to employees
who were not members of Respondents as of the date of the execution
of the contract. He therefore contends that the Respondents' letter
of February 28, which notified the Company that the 10 employees
were delinquent in their dues and threatening to take action leading
to the discharge of the employees if the delinquencies were not cor-
rected, was violative of Section 8(b) (2) and (1) (A) of the Act. He
also contends that the filing of a grievance by the Respondents on
March 10, 1961, was a further effort on the part of the Respondents
to cause the Company to discriminate against the 10 employees in
violation of Section 8(b) (2) and (1) (A). Finally, General Counsel
contends that the letter of February 28 sent to each of the employees
demanding payment of the dues under threat of discharge was inde-
pendently violative of Section 8(b) (1) (A) of the Act.
Section 7 of the Act guarantees to an employee the right to engage
in union activities and also the right to refrain from union activities.
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
2 The 10 employees accomplished their resignations from the Respondents by giving a,
copy of their resignations to a "committee " of Paulding ' s employees who were in opposi-
tion to the Respondents . The committee then gave the resignations to its attorney,
Young. It is clear that the employees , by their actions, thus constituted the committee
and Young their agents for the purpose of conveying their resignations to the Respondents.
-904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment by the tender of periodic dues and initiation fees uniformly
required , as authorized in Section 8(a) (3) of the Act.
In the case before us the Respondents had obtained a limited
form of a union -security agreement , commonly referred to as a
"maintenance -of-membership" clause , which required only those em-
ployees who were members at the time of the execution of the agree-
ment or who were hired subsequent to the execution of the agreement
to pay the customary initiation fees and dues . Those employees who
had never belonged to the Respondents or had resigned prior to the
execution of the agreement , were therefore under no obligation to pay
initiation fees and dues . Since the employees here had resigned, they
did not fall within the ambit of the agreement . Accordingly , we find,
consistent with our prior decision involving the parties herein (130
NLRB 1035 ), that the requests for discharge in the letters of Febru-
ary 28 and the subsequent filing of the grievance were attempts to cause
the employer to violate Section 8 (a) (3) of the Act by discharging the
employees for failure to pay dues which the agreement executed pur-
suant to Section 8(a) (3) did not require of them . By making such
requests the Respondents therefore clearly violated Section 8(b) (2)
and Section 8(b) (1) (A) of the Act? New Jersey Bell Telephone
Company, 106 NLRB 1322, 1323-1325, enfd . 215 F. 2d 835 (C.A. 2).
The Respondents contend, however, that their action was privileged
by the proviso to Section 8(b) (1) (A) of the Act.4 They point to the
failure of the 10 employees to resign in accordance with the constitu-
tion and bylaws of the Respondents or with the checkoff and member-
.ship agreements and assert that the proviso , which confers on unions
the right to "prescribe . . . rules with respect to the . . . retention
of membership ," insulates them from what otherwise would be a clear
violation of Section 8(b) (2) and (1) (A) of the Act.
It is true , of course , that a union is free, under the proviso , to specify
the rules and conditions under which an employee becomes and re-
mains a "member ," and the union is free to deny those not complying
with its rules and conditions such benefits as may be derived from
the internal operation of the union. But the Board has consistently
held that, except as permitted by the Section 8(a) (3) proviso, the
union's right to prescribe rules does not extend to interference with the
relationship between employee and employer.' To hold otherwise
s Chairman McCulloch limits his finding in this regard to the letters of February 28,
.and would not rely on the filing of the grievance inasmuch as he deems determination of
- that issue unnecessary to the disposition of this case.
A The proviso states in pertinent part "That this paragraph shall not impair the right
of a labor organization to prescribe its own rules with respect to the acquisition or reten-
11tion of membership therein . .. .
5 Utah Construction Company , 95 NLRB 196, 206 (footnote 25) ; Pacific Intermountain
Express Company, 107 NLRB 837, 838, 843 , enfd as mod . 225 F. 2d 343 (C.A. 8) ; The
Babcock & Wilcox Company, 110 NLRB 2116, 2132-2133 ; American Screw Company, 122
NLRB 485, 488 (footnote 8).
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 905
would be to permit a union to augment the single reason for discharge
permitted by the proviso to Section 8 (a) (3) by the mere promulgation
of union rules or bylaws. We cannot accept such a result for it would
clearly be contrary to the intent of Congress in limiting discharges to,
those instances where the employee has failed to comply with an
applicable lawful union-security agreement .6
Our conclusion that the Respondents had no right to demand dues
of the 10 employees under its maintenance-of-membership clause leads,
us inevitably to the conclusion that the letters sent to the employees de-
manding payment of such dues restrained and coerced them in the
exercise of their right to refrain from union activities. We therefore
find that the letters of February 28 demanding dues from the 10 em-
ployees were also violative of Section 8(b) (1) (A) of the Act'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondents set forth above have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among-
the several States, and tends to lead to labor disputes burdening and'-
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor-
practices, we shall order them to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
6 Marlin Rockwell Corporation , 114 NLRB 553 , 561-562
7 Namm's Inc , 102 NLRB 466, 469; Montgomery Ward d Co, incorporated , 121 NLRB
1552, 1558 . The Respondents contend that the controversy , here the subject of unfair-
labor practice charges, should have been submitted to the grievance procedure and arbi-
tration provisions of the 1961 contract Section 10(a) gives the Board exclusive juris-
diction over the determination of unfair labor practices. In this case Paulding refused
to take the case to arbitration but even if it had, and the arbitrator had decided that the
employees were obligated to pay the dues, the award would not be recognized by the
Board since it would be repugnant to the purposes and policies of the Act. International
Union, United Automobile, Aircraft, Agricultural Implement Workers of America, AFL-CIO
(John I. Paulding, Inc), 130 NLRB 1035, 1044
Member Leedom disagrees with his colleagues ' apparent assumption that Respondents
are relying or can rely on the grievance and arbitration provisions of their contract with
Paulding as a defense to the complaint in this proceeding . As set forth above, Respond-
ents filed a grievance with Paulding , in substance requesting the discharge of the allegedly
delinquent employees Paulding refused to comply with the request , stating in answer to
the grievance that the matter was pending before this Board ; and that it would hold the
matter in abeyance and would abide by this Board ' s decision . The Respondents took no
further action with respect to this grievance, and the time for taking further appeals
within the grievance procedure or to arbitration has long since passed . Consequently,
Respondents have lost any contractual right they may have had to take the dispute to
arbitration . Further, if the grievance and arbitration provisions are relevant at all,
Respondents by their inaction have, in Member Leedom's opinion , accepted Paulding's
determination , to abide by this Board 's decision, as the resolution of the grievance. More-
over, Respondents filed no brief in this case and, in Member Leedom 's view, there is no
predicate in the record for concluding that Respondents are relying on the grievance and,
arbitration provisions of their contract with Paulding as a defense to the complaint
herein . Under all the circumstances , therefore , Member Leedom deems it unnecessary to-
speculate on the effect which the Board might give to an arbitration award in a proceed-
ing which has never been held.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Respondents have violated and are violating Section 8 (b) (2)
of the Act by attempting to cause Paulding to discriminate against
employees in regard to their hire and tenure of employment, in viola-
tion of Section 8 (a) (3), by : (a) sending the letter, dated February 28,
1961, to Paulding; and (b) filing the grievance dated March 10, 1961.
2. Respondent International and its Local 899 have violated and
are violating Section 8 (b) (1) (A) of the Act by restraining and coerc-
ing employees in the exercise of their rights to refrain from joining
Respondents as guaranteed in Section 7 of the Act by the acts referred
to in section III, above; and by the letter, dated February 28, 1961,
sent by Respondents to each of the 10 employees whose names are listed
in Appendix A.
3. The aforesaid labor practices are unfair labor practices affecting
-commerce within the meaning of Section 2 (6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, International
Union, United Automobile, Aircraft, Agricultural Implement Work-
Uers of America, AFL-CIO, and its Local 899, and their respective offi-
cers, agents, representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Requesting John I. Paulding, Inc., to discharge or otherwise
-discriminate against any employee when such discharge or discrimina-
tion would be in violation of Section 8(a) (3) of the Act.
(b) In any other manner restraining or coercing employees in the
exercise of the rights guaranteed in 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, as amended by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Notify John I. Paulding, Inc., in writing, that it withdraws
its demand that the employees listed in Appendix A be discharged for
nonpayment of dues to Respondents, and send a copy of said letter
-to each of the employees listed in said Appendix.
(b) Post at the offices and meeting halls of the Respondent Inter-
national Union in New Bedford, Massachusetts, and of its Local 899
-located in the same city, copies of the notice attached hereto marked
INT'L UNION, UNITED AUTOMOBILE, AIRCRAFT, ETC. 907
"Appendix B." 8 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by an
official representative of the Respondent International Union and of
its Local 899, be posted by them immediately upon receipt thereof,
and be maintained by them for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by them to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Mail signed copies of the notice to the Regional Director for
the First Region for posting, by John I. Paulding, Inc., it being will-
ing, at all locations where notices to its employers are customarily
posted in its plant located at New Bedford, Massachusetts.
(d) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps they have
taken to comply herewith.
e In the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
Irene M. Fernandes Geraldine Burns Regina Langevin
Fernando M. Santos Antonio Carreiro Laura Posson
Rita Motta Florida Dube Victoria Tomasik
Joseph M. Provencal
APPENDIX B
NOTICE TO ALL OUR MEMBERS, OFFICERS, REPRESENTATIVES, AND
AGENTS, AND To ALL EMPLOYEES OF JOHN I. PAULDING, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT request John I. Paulding, Inc., to discharge any
employee except as permitted by an agreement authorized by
Section 8(a) (3) of the Act.
WE WILL NOT in any other manner attempt to cause John I.
Paulding, Inc., to discriminate against any employee in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT in any manner restrain or coerce employees in
the exercise of the right to self-organization, to form labor or-
ganizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain from
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any and all of such activities, except as such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized by Section 8(a) (3)
of the Act.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR-
CRAFT, AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL 899, INTERNATIONAL UNION, UNITED AUTO-
MOBILE , AIRCRAFT, AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 124 School Street, Boston 8, Massachusetts, Telephone Number,
Lafayette 3-8100, if they have any question concerning this notice or
compliance with its provisions.
The Absorbent Cotton Company, Petitioner and Textile Work-
ers Union of America , AFL-CIO, and Its Affiliated Local No.
193.1 Case No. 14-RM-&30. June 26, 1962
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Thomas W.
Seeler, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization, claiming to represent em-
ployees of the Employer.
3. The Employer and the Union have engaged in collective bar-
gaining for the Employer's production and maintenance employees
since 1937, and have executed successive labor contracts covering these
employees since that date. The Union has never been certified as the
I The name of the Union appears as amended at the hearing.
137 NLRB No. 93.