Local 1384, UAW

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 729 (N.L.R.B. 1975)

LOCAL
Local 1384 , United Automobile , Aerospace , Agricul-
tural Implement Workers , UAW (Ex-Cell-O Corpo-
ration and Paul M . Gillam and Susanne Vida. Cases
25-CB-1677 and 25-CB-1782
July 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS KENNEDY AND
PENELLO
On September 19, 1974, Administrative Law Judge
Almira Abbot. Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel and Respondent filed exceptions and sup-
porting briefs, and Ex-Cell-O Corporation, a party in
interest, filed a brief in answer to Respondent's ex-
ceptions and brief.'
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge and
to adopt her recommended Order, except as modi-
fied herein.
1. The amended complaint, as further amended at
the hearing, alleges that Respondent violated Section
8(b)(1)(A) and 8(b)(2) by threatening and attempting
to cause the Employer to discharge 34 employees for
failure to pay dues to Respondent. The amendment
at the hearing changed the theory of the alleged
8(b)(1)(A) and 8(b)(2) violations as to 6 of the total
of 34 employees involved in this proceeding. Where-
as prior to the hearing the six employees were listed
in the amended complaint as among those who were
allegedly not required to pay dues because they had
resigned their memberships before the effective date
of the maintenance-of-membership clause of the col-
lective-bargaining agreement, this amendment at the
hearing alleged that these six employees were not
subject to the dues requirement because they never
became members of Respondent.
1 Respondent 's request for oral argument is hereby denied , as the record,
including the briefs , adequately presents the issues and the positions of the
parties.
2 We note that in sec . III, par. 2, of the Administrative Law Judge' s Deci-
sion, she erroneously states that the arbitrator's award was issued on July 1,
1973, whereas the correct date is July 31, 1973.
In adopting the Administrative Law Judge 's conclusion in regard to the
arbitration award, we wish to make clear that, contrary to the Respondent's
assertion , we are not refusing to defer to the award merely because we
would have reached a different result , but because we find that the award
itself is "clearly repugnant to the purposes and policies of the Act." Spiel-
berg Manufacturing Company, 112 NLRB 1080, 1082 (1955).
1384, UAW 729
Respondent contends that the Administrative Law
Judge erred in failing to grant Respondent's request
for a continuance of the hearing which it claimed
was necessary in order to be prepared for trial on the
new theory of the amended complaint. While we
agree that the Administrative Law Judge committed
error in not allowing some additional time, we do not
believe that a reversal is appropriate in the circum-
stances of this case. For Respondent must show that
the Administrative Law Judge' s ruling was not only
erroneous, but also prejudicial to its substantive
rights. Spector Freight System, Inc., 141 NLRB 1110,
1112-13 (1963).
Here the Respondent made no offer of proof and
its exceptions and brief do not particularize the evi-
dence which it expects to adduce at a new hearing.
Most importantly, the denial of its request for a con-
tinuance could not have prejudiced Respondent's
ability to investigate and prepare a defense because
the facts of this case, including the facts established
by evidence relating to the allegations of the amend-
ed complaint, are not in dispute. Respondent's attor-
ney recognized that no issues as to the operative
events were in controversy in this proceeding when
he stated on the record at the close of the General
Counsel's case that "I would urge that that [motion
to dismiss the complaint] be granted at this time be-
cause we are in effect demurring to the allegations of
the general counsel . . . . [T]his is not an evidentiary
hearing, there isn't much conflict in the evidence
. . .. Subsequent to the hearing, Respondent failed
to file a formal answer to the amended complaint,
although given 10 days in which to do so by the Ad-
ministrative Law Judge, and thereby chose to forgo
an opportunity to allege facts not litigated at the
hearing. Finally, each of Respondent's exceptions
raises solely an issue as to the conclusions to be
drawn from the undisputed events.
Under these circumstances, we conclude that Re-
spondent has failed to show that the Administrative
Law Judge's ruling denying its request for a continu-
ance of the hearing resulted in prejudice to its sub-
stantive rights.
2. The Administrative Law Judge found that 27 of
the employees involved in this proceeding had effec-
tively resigned their memberships prior to the opera-
tive date of the maintenance-of-membership clause
of the collective-bargaining agreement and therefore
concluded that Respondent violated Section
8(b)(1)(A) by threatening to cause their discharge for
failure to pay dues. Relying on the Board's decision
in International Union, United Automobile, Aerospace
and Agricultural Implement Workers, UA W, and its
Local No. 647 (General Electric Company), I the Ad-
s 197 NLRB 608 (1972).
219 NLRB No. 123
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ministrative Law Judge held that the restrictions
upon resignations set forth in Respondent' s Interna-
tional constitution did not constitute a bar to these
nonconforming resignations. We agree .4
The Administrative Law Judge found that one in-
dividual, Verlin M. Ryan, had not effectively re-
signed by his oral notification at a union meeting in
February 1971. We find merit in the General
Counsel's exception to this conclusion. Ryan in-
formed Respondent's president, Roland, orally dur-
ing the meeting of his resignation from the Union.
After the meeting , Ryan approached President Ro-
land and again notified him of his resignation; at this
time Roland turned to someone else and said, "With
this kind of help we don't need him anyhow." Under
these circumstances, we conclude that President
Roland's statement constituted acknowledgment of
Ryan's resignation and thereby rendered his oral
declaration sufficient to sever his relationship with
Respondent. Accordingly, we find that Ryan effec-
tively resigned, that he was not obligated to maintain
his membership under the contract, and that there-
fore Respondent's threat to him violated Section
8(b)(1)(A).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Local
1384, United Automobile, Aerospace, Agricultural
Implement Workers, UAW, its officers, agents, and
representatives, shall take the action set forth in the
Administrative Law Judge's recommended Order, as
so modified:
1. Add the name "Verlin M. Ryan" to the list of
employees in paragraph 1(a).
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS HEREBY FURTHER ORDERED that the complaint
be, and it hereby is dismissed insofar as it alleges
violations not found herein.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten the employees named
below, or any other employees, that we will
cause their discharge for failure to pay dues, ex-
cept to the extent permitted by the National La-
bor Relations Act, as amended:
James Acres Delbert Lane
Sandra K. Baldwin Betty J. Litsey
Genevieve G. Balser Don Loser
Beatrice Beeman Eliza M. Williams
Roger D. Burchett Mackey
Carolee Courtney John Mackey
Charles Cox Judith Hoover McCor-
kle
Catherine Crable Kathleen W. McCorkle
Delores M. Dane Laurnell Miller
Iinine Frawley Juanita Romine
John Gillam Verlin M. Ryan
Milton Dale Gillam James Sanders
Paul Gillam Michael Schmitt
John S. Gmurk Carl Seastrand
David Hinds Paul Junior Shaw
Harry W. Johnson Daniel Swart
Olive J. Kennedy Arco Taylor
Elizabeth Susanne Vida
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
We have no objection to the employment of
the employees named above because of their
failure to pay dues, and we have so notified
those employees and Ex-Cell-O Corporation.
LOCAL 1384, UNITED AUTOMOBILE, AERO-
SPACE , AGRICULTURAL IMPLEMENT WORKERS,
UAW
DECISION
STATEMENT OF THE CASE
We note that this issue of the effectiveness of union constitutional limi-
tations on a member's right to resign is one expressly left open by the
Supreme Court in recent decisions . See Booster Lodge No 405, International
Association of Machinists and Aerospace Workers, AFL-CIO [Boeing Co.] v.
N L R B, 412 U.S. 84 (1973), and N.L.R B. v. Granite State Joint Board,
Textile Workers Union of America, Local 1029, AFL-CIO [International Pa-
per Box Machine Co.], 409 U.S. 213 (1972). Contrary to Respondent's con-
tention , we are of the opinion that General Electric, supra, was correctly
decided and we will adhere to that view until the Supreme Court rules on
this issue.
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
These cases were heard at Anderson, Indiana, July 23, 24,
and 25, 1974. The charge in Case 25-CB-1677 was filed by
Paul Gillam and served on the Respondent March 9, 1973;
the amended charge was filed and served on the Respon-
dent February 15, 1974. The charge in Case 25-CB-1782
was filed by Susanne Vida and served on the Respondent
September 6, 1973.' An Order Consolidating Cases, Com-
i The Regional Director approved the withdrawal of the charge in related
LOCAL 1384, UAW 731
plaint, and Notice of Hearing was issued February 15,
1974; the complaint was amended May 9, 1974, and at the
hearing.
The amended complaint alleges in substance that the
Respondent Union violated Section 8(b)(2) and 8(b)(1)(A)
of the National Labor Relations Act, as amended, by
threatening and attempting to cause the Employer to dis-
charge 34 employees on September 9, 1972, and subse-
quent dates for failure to pay dues to the Respondent not-
withstanding that such employees were not required to pay
dues because 6 of them never became members, and 28
had resigned their memberships prior to May 1, 1972, the
effective date of the maintenance -of-membership clause of
the collective-bargaining agreement between the Respon-
dent Union and the Employer.2 The Respondent moved to
dismiss the complaint on grounds that the issues have been
decided by an arbitrator to whose award the National La-
bor Relations Board should defer ; and that under the pro-
viso to Section 8(b)(l)(A), the Respondent has the sole
right to prescribe its own rules with respect to the acquisi-
tion and retention of membership , and under its rules all
the employees involved became members and none effec-
tively resigned before May 1, 1972.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Employer,
I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Employer, Ex-Cell-O Corporation, is a Michigan
corporation engaged at Elwood, Indiana, in the manufac-
ture of jet aircraft parts and related products. During the
past year the Employer purchased goods valued in excess
of $50,000 which were transported to its Elwood facility
directly from outside Indiana; and produced and sold
products valued in excess of $50,000 which were shipped
directly outside the State. The Respondent admits, and I
conclude, that the Employer is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Respondent Union admits , and I conclude , that it is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES 3
The Respondent Union's organizational activities
among the Employer's employees resulted in a 1965 Board
affirmance of certification, and the granting of a charter to
Case 25-CB-1760 by Charging Party James E Lamb prior to the opening of
the hearing
2 The General Counsel's motions to dismiss the complaint as to Carolyn
Hudson Hamilton, James Whetstone, Helen Joan Widener Leonard, and
Sam Harte were granted at the hearing
J There is no substantial dispute as to the facts.
Local 1384 in 1966. After prolonged litigation of the
Respondent's status as certified bargaining representative,
and a strike lasting from September 3, 1970, until Septem-
ber 1, 1971, the Respondent and the Employer finally en-
tered into a collective-bargaining agreement May 8, 1972,
effective May 1, 1972. Article II, section 2, of the agree-
ment is a maintenance-of-membership clause which pro-
vides in pertinent part as follows:
Any employee covered by this Agreement who is a
member of the Union on May 1, 1972, or any employ-
ee who thereafter becomes a member of the Union,
shall as a condition of continued employment for the
life of this Agreement, maintain his membership in the
Union to the extent of tendering the periodic dues and
initiation fees uniformly required as a condition of ac-
quiring or maintaining membership.
Art. III of the agreement provides a grievance and arbitra-
tion procedure "for the settlement of all disputes between
the parties over the interpretation, application or claimed
violation of any of the provisions of this Agreement."
All the employees involved in this proceeding signed and
sent to the Union application-for-membership cards, the
provisions of which are set forth in detail below. After the
contract was executed, the Union advised all of them in
writing that each employee who had an application for
membership on file owed dues, explained what the dues
amounted to and that their employment could be terminat-
ed if they failed to pay. On October 9, 1972, the Union
supplied the Employer with a list of employees who had
applied for membership in the Union and owed dues. The
Union requested the Employer to notify those whose
names were listed that they must pay delinquent dues with-
in 72 hours or their employment could be terminated under
the contract. The Employer's reply requested the Union to
supply it with proof of membership. The Union failed to
do so to the Employer's satisfaction, and the Employer
then refused to so notify those employees contacted who
denied that they were members on May 1, 1972. The
Union filed a grievance based on the Employer's alleged
refusal to enforce the contract. The Employer denied the
grievance December 19, 1972, and the Union took the mat-
ter to arbitration. The Union thereafter, on January 15,
February 26, and April 2, 1973, served similar requests on
the Employer to notify additional alleged members that if
they did not pay their delinquent dues they could be termi-
nated. The Employer refused all such requests on the
ground that the employees denied membership as of May
1, 1972. The names of all employees involved in the griev-
ance-arbitration proceeding appeared in one or more of the
above delinquent lists sent to the Employer by the Union.
The arbitrator's award was handed down July 1, 1973. He
ruled that the below-listed employees were members of the
Union on May 1, 1972, and required the Employer, upon
request, to enforce the maintenance-of-membership provi-
sion as to them. The Union, on August 24, 1973, submitted
to the Employer another written request that these employ-
ees be advised that they must pay their delinquent dues
within 72 hours or their employment could be terminated
under the contract.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Genevieve G. Balser Arco Taylor
Catherine Crable Carolee Courtney Beatrice Beeman. Letter of resignation, dated Septem-
John Gillam Iinine Frawley ber 1, 1970, admittedly was received by the Union.
John S. Gmurk Milton Dale Gillam She worked all during the strike .4
Harry Johnson David Hines Carolee Courtney Resi nation letter dated Se tem-Delbert Lane Olive J. Kennedy
. g , p
ber 8 1970 was received b President Roland Se tem-John Mackey Betty J Litsey
, , y p. ber 9 1970 She worked all durin the strikeVerlin M. Ryan Kathleen W. McCorkle
, . g .
Carl Seastrand Michael Schmidt Catherine Crable. Struck September 3, 1970, through
Eliza M. Williams Daniel Swart February 14, 1971. Her letter of resignation, dated
Mackey James Acres February 13, 1971, was received by President Roland
Roger Dale Burchett Charles Cox February 13, 1971. She returned to work February 15,
Paul Gillam Don Loser 1971.
The membership status of the following additional em-
ployees named in the amended complaint was not ruled on
by the arbitrator.
Juanita Romine-She was notified by the Union May
31, 1972, of her dues obligations as a member, and her
name was included in the lists of allegedly delinquent
members sent by the Union to the Employer October
9, 1972, and February 26, 1973.
Elizabeth Susane Vida, Delores M. Dane, and Bea-
trice Beeman-They were notified by the Union July
23, 1973, that as members they must pay their dues
delinquencies within a reasonable time or they could
lose their jobs.
Sandra K. Baldwin, Judith Hoover McCorkle, and
James Sanders-Their names were listed in the
Union's letter of January 15, 1973, to the Employer as
members who should be notified of possible termina-
tion if they failed to pay delinquent dues within 72
hours.
Laurnell Miller and Paul Junior Shaw-On February
9, 1973, they were notified by the Union of their obli-
gation as members to pay their dues by March 9, 1973,
or possibly be terminated; and their names were on
the Union's April 2, 1973, delinquent list forwarded to
the Employer.
A. The Alleged Resignations
The General Counsel presented the following evidence
in support of his contention that 28 of these employees
effectively resigned from membership in the Union prior to
May 1, 1972.
Sandra K. Baldwin. She struck from September 3,
1970 through February 9, 1971. Her certified resigna-
tion letter "To Whom It May Concern," dated Febru-
ary 10, 1971, was received for Union President Roland
February 11, 1971. She returned to work February 10,
1971.
Genevieve G. Balser. She was on sick leave from Sep-
tember 3, 1970, until November 17, 1970. Thereafter,
she was on strike until February 16, 1971. Her letter of
resignation "To whom it may concern" dated Febru-
ary 17, 1971, was receipted for President Roland Feb-
ruary 18, 1971. She returned to work February 17,
1971.
Delores M. Dane. Her letter of resignation to "Sir"
dated September 7, 1970, offered as having been sent
to the Union on that date, a copy of which was in
possession of the Union, was received in evidence in
the absence of objection. She worked throughout the
strike.
Iinine Frawley. Struck September 3, 1970, through
September 21, 1971. Letter of resignation "To Whom
it may concern," dated February 20, 1971, receipted
by the Union on the same date. Returned to work
February 22, 1971.
John Gillam. The record shows that Gillam worked
throughout the strike except that during the week end-
ing September 6, 1970, a holiday week, he worked
only 24 hours and during the week ending September
13, 1970, he worked only 30 hours. John Gillam signed
a resignation letter dated September 8, 1970, which the
Union received shortly thereafter.
Milton Dale Gillam. Worked throughout the strike.
Resignation letter dated September 8, 1970, was re-
ceived by the Union shortly thereafter.
John S. Gmurk. Struck September 3, 1970, through
November 30, 1970. Returned to work December 1,
1970. Resignation letter to "Local 1384 U.A.W. Rob-
ert Roland Pres.," dated December 11, 1970, was re-
ceipted by the Union December 12, 1970.
David Hinds. Did not work during the week ending
September 13, 1970. Otherwise worked throughout the
strike. Letter of resignation "To whom it may con-
cern," dated September 9, 1970, receipted by President
Roland September 10, 1970.
Harry W. Johnson. Resignation letter, "To whom it
may concern," apparently misdated September 3,
1970, was received by the Union September 2, 1970.
Worked throughout the strike.
Olive J. Kennedy. Worked throughout the strike. Ken-
nedy testified that she addressed a letter to Robert
Roland, President of Local 1384, at "the union hall for
Continental Can on Ninth Street," where she believed
"they were getting their mail . . . at that time." She
sent the letter shortly after 3:30 p.m. September 3,
1970, certified mail. Kennedy identified a post card
° No account is taken of absences , during the strike, for such purposes as
vacations and sick leave.
LOCAL 1384, UAW 733
return receipt for certified mail signed for Robert Ro-
land by one Pat Slatton which she thereafter received.
Kennedy testified that her letter said "I want to resign
from the union." Pat Slatton is not otherwise identi-
fied in the record. President Roland was not ques-
tioned about this matter. Counsel for the Respondent
stated on the record that the Union was unable to find
a letter of resignation from Kennedy in its files.
Delbert Lane. Worked throughout the strike. Letter of
resignation dated September 8, 1970, was received by
Robert Roland, President of the Local Union.
Betty J. Litsey. Struck from September 3, 1970,
through February 8, 1971. Letter dated February 9,
1971, "To Whom It May Concern," receipted for
Robert Roland February 11, 1971. Returned to work
February 9, 1971.
John Mackey. Struck from September 3, 1970,
through January 21, 1971. Returned to work January
22, 1971. Mackey testified that sometime in Decem-
ber, 1970, he approached President Roland in the tav-
ern which Roland operated one block from the plant,
and informed Roland that he wished to resign from
the Union. Although Roland told him that he could
not resign, Mackey said, he handed Roland a letter
stating that Mackey was dissatisfied with the way
things were going, that he had discussed resigning be-
fore that, and that he was taking the opportunity to
resign at that time. Roland put the letter in his pocket,
and never returned it to Mackey. Counsel for the
Union stated on the record that there was no such
letter in the Union's files. Although Robert Roland
testified that he operated a tavern in Elwood during
1970, while he was president of Local 1384, he was not
questioned about this incident.
Judith Hoover McCorkle. Struck from September 3,
1970, through February 9, 1971. Letter "To Whom It
May Concern," dated February 10, 1971, receipted for
President Roland February 11, 1971. Returned to
work February 10, 1971.
Kathleen W. McCorkle. Struck from September 3,
1970, through February 7, 1971. Letter "To whom it
might concern," dated February 6, 1971, receipted for
President Roland February 8, 1971. Returned to work
February 8, 1971.
Laurnell Miller. Worked throughout the strike. Letter
of resignation "To whom it may concern," dated Sep-
tember 7, 1970, received by President Roland Septem-
ber 9, 1970.
Juanita Romine. Worked throughout the strike. Her
undated letter of resignation to "President of Local
1384 Bob Roland" was received by Roland September
5, 1970.
Verlin M. Ryan. Struck from September 3, 1970,
through February 14, 1971. Returned to work Febru-
ary 15, 1971. Ryan testified that he informed President
Roland orally at a Union meeting in February, 1971,
of his resignation from the Union, and that immedi-
ately after the Union meeting he informed Roland
that he was going back to work . Roland was not ques-
tioned about this incident.
James Sanders. Worked throughout the strike. Resig-
nation letter dated September 8, 1970 , was received by
the Union shortly thereafter.
Michael Schmitt. Worked throughout the strike. The
Union stipulated to the receipt of his resignation letter
dated September 14, 1970.
Carl Seastrand. Worked throughout the strike. Resig-
nation letter to "Mr. Robert Roland, Pres., Local
1384," dated September 1, 1970, was received Septem-
ber 2, 1970.
Paul Junior Shaw. Worked throughout the strike. Res-
ignation letter "To Robert Roland," dated September
14, 1970, in possession of the Union.
Daniel Swart . On vacation from September 8 to 11,
1970; struck from September 12 through October 19,
1970. Resignation letter to "Robert Roland, UAW
1384," dated October 19, 1970, was received by the
Union October 21, 1970 . He returned to work October
20, 1970.
Elizabeth Susanne Vida. Worked throughout the
strike. Letter of resignation dated September 1, 1970,
admittedly received by the Union.
Eliza M. Williams Mackey. Struck from September 3,
1970, through February 8, 1971. Resignation letter
"To Whom It May Concern," dated February 9, 1971,
received by the Union February 11, 1971, and a copy
found in the Union files. Returned to work February
9, 1971.
In support of its contention that the above-named em-
ployees never validly resigned their membership, the
Union relies on article 6, section 17, of the 1970 constitu-
tion of its International Union , which provides in pertinent
part as follows:
Section 17. A member may resign or terminate his
membership only if he is in good standing, is not in
arrears or delinquent in the payment of any dues or
other financial obligation to the International Union
or to his Local Union and there are no charges filed
and pending against him. Such resignation or termina-
tion shall be effective only if by written communica-
tion, signed by the member, and sent by registered or
certified mail, return receipt requested, to the Finan-
cial Secretary of the Local Union within the ten (10)
day period prior to the end of the fiscal year of the
Local Union as fixed by this Constitution, whereupon
it shall become effective sixty (60) days after the end
of such fiscal year; provided, that if the employer of
such member has been authorized either by such
member individually or by the Collective Bargaining
Agreement between the employer and the Union to
check off the membership dues of such member, then
such resignation shall become effective upon the effec-
tive termination of such authorization, or upon the
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expiration of such sixty (60) day period, whichever is
later.
The assertion of counsel for the Union that the fiscal year
is the calendar year is unchallenged.
B. Alleged Nonmembers and Supervisors
The General Counsel contends that the six remaining
employees never became members of the Union; and that
three of them were not required to pay dues for the addi-
tional reason that they served for a period as supervisors.
The International constitution contains the following
provisions with regard to becoming a member:
Section 2(a). Any person eligible to become a mem-
ber of the International Union who is not affiliated
with any organization whose principles and philoso-
phy are contrary to those of this International Union
as outlined in the Preamble of this Constitution may
apply for membership to the Local Union having ju-
risdiction over the plant in which he is employed. The
applicant must, at the time of application, be an actual
worker in and around the plant. All applicants for
membership in any Local Union of the International
Union shall fill out an official application provided by
the International Union, answering all questions con-
tained in such application , and sign a promise to abide
by all laws, rules and regulations and the Constitution
of the International Union. All applications thus re-
ceived shall be referred to the Local Union for consid-
eration , and shall be acted upon as soon as possible,
but not later than sixty (60) days from the date the
application is received by the Financial Secretary of
the Local Union.
Section 2b. Notwithstanding any other provisions in
this Constitution, applicants working for unorganized
employers or in those units not yet under the jurisdic-
tion of a UAW Local Union may become members of
the International Union directly by signing an appli-
cation for membership in a form approved by the In-
ternational Executive Board and by the payment of
the sum of one dollar ($ 1.00) (or such other amount
determined by the International Executive Board), to-
ward initiation fees and dues. Once a Local Union is
chartered in, or awarded jurisdiction over the unit in
which such member is working, he shall automatically
become a member of that Local Union.
Section 4. Upon acceptance of the application,
membership shall date from the first day of the month
for which dues are paid.
Section 6. Unless waived by the Local Union, or
unit of an Amalgamated Local, any candidate failing
to present himself for initiation within four (4) weeks
after notification of his being accepted to member-
ship , without good and sufficient reason being given,
shall forfeit all money paid by him.
Section 7. The original application signed by each
member shall be retained by the Local Union for its
record and official receipt shall be given to each new
member for all monies paid. All receipts shall be made
out in duplicate, the original to be given to the mem-
ber, the duplicate to be retained by the Local Union
and made available to the International Union upon
request. These duplicate receipts may be destroyed af-
ter a Local Union audit upon written approval of the
International Secretary-Treasurer.
Section 8. No new member will be recorded at the
International office nor will initiation fee or per capita
tax be accepted for new members until a monthly re-
port is received from the Financial Secretary of the
Local Union.
Article 16, section 1, provides that the initiation fee shall be
not less than $10. Article 40, section 7, provides that the
financial secretary shall receive the applications for mem-
bership and notify the candidates of their election or rejec-
tion, and provide each member with a copy of the constitu-
tion and bylaws. Article 40, section 8, requires the financial
secretary to keep a record of the date of initiation of all
members. Article 43 describes the initiation ceremony as
the administering of the same oath as that set forth in the
last paragraph of the official application for membership
below. Article 13, section 11, empowers the International
union president with the approval of the executive board to
grant to local unions dispensations relating to initiation
fees.
With regard to supervisors, the International union
constitution provides, in article 6, section 11, that union
members who are promoted to positions as head of a de-
partment, directing company policy or having the authori-
ty to hire and discharge, shall be issued a withdrawal card
immediately.
Each of the six affected employees signed and forwarded
to the Union dual-purpose cards entitled "Official Applica-
tion for Membership" which states, among other things:5
I hereby apply for membership in the International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW).
I authorize UAW, its agents or representatives, to act
for me as my exclusive representative in collective bar-
gaining, in respect to all the terms and conditions of
my employment and to enter into contracts with my
employer covering all such matters.
I further authorize the said union to act as my exclu-
sive representative in the presentation, prosecution.
adjustment and settlement of grievances and other dis-
putes, all as provided in the constitution of the union.
I pledge my honor to faithfully observe the Constitu-
tion and laws of this Union and the Constitution of
the United States (or the Dominion of Canada as the
case may be); to comply with all the rules and regula-
tions for the government thereof; not to divulge or
make known any priviate proceedings of this Union;
5 The application for membership signed by Charles Cox was entitled
"Special Official Application For Membership " and was worded slightly
different from the application cards signed by the others.
LOCAL 1384, UAW 735
to faithfully perform all the duties assigned to me to
the best of my ability and skill; to so conduct myself
at all times so as not to bring reproach upon my
Union, and at' all times to bear true and faithful alle-
giance to the International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers
of America (UAW), American Federation of Labor
and Congress of Industrial Organizations (AFL-CIO).
Roger Dale Burchett signed an application card and
submitted it to the Union along with $5 on April 27, 1968.
He worked throughout the strike.
Charles Cox signed and submitted to the Union an ap-
plication card July 22, 1970.6 Cox never attended a union
meeting , and he worked throughout the strike.
Arco Taylor signed and submitted a membership appli-
cation July 24, 1970. He testified that he attended no union
meetings and worked throughout the strike except for the
first 2 days.
James Acres signed an application card and submitted it
along with $5 to the Union on February 20, 1966. He be-
came a charter member of Local 1384, and his name is on
the charter. He had also signed a card previously, in 1964,
at which time he paid $3. Acres occupied a supervisory
position from September 23, 1968, until November 1,
1971.7 He did not join the strike. There is no evidence that
he received a withdrawal card when he became a supervi-
sor or signed a new application for membership when he
returned to unit work about November 1, 1971.
Paul Gillam, a Charging Party, became a supervisor
March 11 , 1968. He signed and submitted an application
for membership in the Union July 10, 1970. Gillam did not
join the strike. He ceased being a supervisor and returned
to the unit November 1, 1971.
Don Loser executed and submitted an application card
December 24, 1968. On January 13, 1969, he became a
supervisor, but he returned to the unit July 27, 1970. He
worked throughout the strike.
The Union conceded that none of the employees were
ever notified of their acceptance into the Union, and none
participated in any initiation ceremony . It is also estab-
lished that none of the members or alleged members paid
any dues before the collective-bargaining agreement was
executed, and that copies of the International union consti-
tution were not available in the Local 1384 office.
The Respondent Union called to the witness stand Inter-
national Representative James Johnson to describe the
practice with regard to acquiring membership. He testified
that section 2(a) and (b) of article 6 of the International
constitution explain how to become a member. Section 2(a)
6 No reliance is placed on Cox's testimony that Juanita Powers told him
at the time she solicited his card that copies of the union constitution were
not available, as Powers was not shown to be an agent of the Union. Al-
though Cox signed a checkoff card the same day, there is no indication in
the record that the checkoff card was forwarded to the Employer , and the
Respondent does not rely on it to establish membership.
I do not rely on Acres ' testimony regarding statements allegedly made
to him regarding the effect of his supervisory status on his relationship to
the Union by Juanita Powers and then -committeeman George Goens, nei-
ther of whom testified. Powers was not shown to be an agent of the Union,
and Goens' alleged remarks appear to have constituted merely personal
opinion.
applies to an employee who hires into an organized plant.
He signs an official application for membership of the kind
signed by these employees, and that is all he has to do.
Section 2(b) applies to an employee who works in an unor-
ganized plant; upon signing an official application card, he
becomes a member of UAW; at the time the UAW takes
jurisdiction as bargaining agent and a local union is char-
tered, he automatically becomes a member of that local
union. The signing of the card is the only procedure re-
quired, Johnson said. Attendance at meetings, a swearing-
in ceremony, or a vote by the ,members of a local union are
not required. Prior to obtaining a contract, initiation fees
are waived by the International secretary-treasurer, and
the amounts paid in by some of these employees were
merely donations to UAW. Before a contract is obtained, a
newly organized local union might not have copies of the
International union constitution on hand; after it gets a
contract and starts collecting dues, it requests copies from
the International Union and has to pay for them.
C. Conclusions
It is not controverted that, if the employees involved
herein were not members of the Union on the effective
date of the contract, they were not subject to the mainte-
nance-of-membership clause contained therein, and were
under no obligation to pay union dues as a condition of
employment. 8 Because of the conditional nature of the lan-
guage used by the Respondent in the demand letters it
addressed to these employees and to the Employer on the
dates specified above, I find that the evidence falls short of
establishing any attempt to actually cause the discharge of
these employees. For this reason, I conclude that the Re-
spondent did not violate Section 8(b)(2) of the Act.
On the other hand, the letters clearly constituted threats
to cause their discharge and therefore were violative of
Section 8(b)(1)(A) as to those employees who were not
members on May 1, 1972.
1. The resignations
As to those employees who the General Counsel con-
tends effectively resigned before that date, I agree that the
Board's decision in International Union, United Automobile,
Aerospace and Agricultural Implement Workers, UA W, and
its Local No. 647 (General Electric Company), 197 NLRB
608 (1972), requires an affirmative answer with regard to
all but one of them. The Board held in that case that this
Union's constitutional restriction upon the resignations of
its members to the last 10 days of the calendar year fol-
lowed by a 60-day waiting period was so limited as to ren-
der violative of Section 8(b)(1)(A) the levying of fines
against those who resigned in writing on other dates and
then crossed a picket line .9 The Board having ruled that
s See N. L.R B. v Mechanical and Allied Production Workers Union, Local
444, AFL-CIO, et al. [Pneumatic Scale Corp], 427 F.2d 833 (C.A. 1, 1970);
N L R.B v International Union, United Automobile, Aircraft, Agricultural
Implement Workers of America , AFL-CIO, et al [John I. Paulding, Inc.], 297
F.2d 272, 275 (C A. 1, 1961).
9 The Respondent relies on N.L.R B . v. International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO
Continued
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 protects such employees from union fines, it must
be included a fortiori that Section 7 protects them from a
threat of loss of their employment.10
The facts clearly establish that all but three of these em-
ployees tendered valid written resignations which were re-
ceived by the Union prior to May 1, 1972, and therefore
were not members subject to the maintenance-of-member-
ship clause of the contract. Upon careful consideration of
the evidence regarding the resignations of Olive J. Kenne-
dy and John Mackey, I find that they also validly resigned.
I am aware of no reason why I should not credit their
testimony even though they failed to keep copies of their
letters of resignation and even though their letters were not
found in the Union's files. In my opinion, the General
Counsel submitted sufficient evidence to establish prima
facie receipt of their resignation letters by Robert Roland,
president of Local 1384, and agent of the Respondent for
the receipt of such letters. As the Union failed to rebut this
evidence by testimony of Roland or otherwise, I find that it
received the resignation letters of Kennedy and John
Mackey, and that they therefore validly resigned their
membership in the Union before May 1, 1972.
The remaining employee in this group in Verlin M.
Ryan. The General Counsel does not contend that Ryan
never was a member of the Union, and the record shows
that he never submitted a written resignation. Although I
credit Ryan's undisputed testimony, I find that an oral res-
ignation followed by a return to work in circumstances
such as those present here is not sufficiently unequivocal
and irrevocable to sever the relationship between a conced-
ed member and his union." Accordingly, I find that the
evidence fails to establish that Ryan effectively resigned his
membership in the Respondent Union before May 1, 1972.
He was therefore subject to the provisions of the mainte-
nance-of-membership clause of the contract. I conclude
that the Respondent did not violate the Act by threatening
to cause his discharge for failure to pay his dues, and rec-
ommend dismissal of the complaint as to him.
I conclude that the Respondent violated Section
8(b)(1)(A) by threatening to cause the discharge of the fol-
lowing employees for failure to pay dues as they had re-
signed from the Union prior
contract:
to the effective date of the
(John 1. Paulding, Inc ), 320 F.2d 12 (C.A. 1, 1963), in support of its conten-
tion that under the proviso to Sec . 8(b)(1)(A) the effectiveness of these
resignations must be governed by the rules with respect thereto set forth in
its International constitution . As indicated , however, the Board found, in
General Electric Company, supra, that these constitutional rules do not con-
form with the limitations inherent in the proviso stated by the Supreme
Court in Scofield v. N L R B., 394 U.S 423 ( 1969), to the effect that a union
is free to enforce only a properly adopted rule which reflects a legitimate
union interest , impairs no policy Congress has imbedded in the labor laws,
and is reasonably enforced against union members who are free to leave the
union and escape the rule . See Levin Werhan, Restrictions on the Right to
Resign • Can a Member's Freedom to "Escape the Union Rule" be Overcome by
Union Boilerplate?, 42 Geo Wash . L. Rev . 397 (1974). To the extent that the
Paulding case is consistent with the Board 's expressed view , I am required to
follow the Board . Iowa Beef Packers, Inc, 144 NLRB 615 (1963).
10 Accord , Booster Lodge No. 405, Intl Assn of Machinists and Aerospace
Workers (Boeing Co ] v N L. R.B, 412 U .S. 84 (1973); Hershey Foods Corpo-
ration, 207 NLRB 897 (1973).
11 N L.R B v. Moore's Seafood Products, Inc, 369 F .2d 488 (C.A. 7, 1966).
Cf. Local 340, International Brotherhood of Operative Potters, AFL-CIO
(Macomb Pottery Company), 175 NLRB 756 (1969), is different from this
case in that among other things it involved a revocation and not a resigna-
tion of union membership.
Baldwin
Balser
Beeman
Courtney
Crable
Dane
Frawley
John Gillam
M. D. Gillam
Gmurk
Hinds
Johnson
Kennedy
Lane
Litsey
E. M. W. Mackey
John Mackey
J. H. McCorkle
K. W. McCorkle
Miller
Romine
Sanders
Schmitt
Seastrand
Shaw
Swart
Vida
2. Alleged nonmembers and supervisors
The Board has indicated that employees are not irrevo-
cably obligated to pay union dues just because they signed
application-for-membership cards before a union-security
contract of this kind is executed. 12 The Board has held that
employees who signed such cards before the execution of a
maintenance-of-membership contract were obligated
thereunder where (1) they signed the cards after the union's
certification ; (b) in agreeing to the maintenance -of-mem-
bership provison, the union and the employer agreed that
all employees who signed application cards had become
members; and (c) by their conduct, including attending
union meetings , voting to ratify the contract , and failure to
express a desire to withdraw, the employees themselves
contemplated the existence of a membership relationship.13
In the instant case , no evidence was presented as to (b). As
all six employees involved here signed applications for
membership after the Union's certification, the evidence as
to (a) favors the Union's contention that they became
members. The only factor mentioned in (c) present here is
that these employees failed to express a desire to withdraw
from which it could as well be infered that they considered
they had never become members as the reverse, if not more
so. Moreover, the refusal of these employees to take part in
the strike also indicates nonaffiliation. In addition, the
Union concedes that it did not take any of the steps set
forth in its own International constitution to perfect the
membership of these applicants, even though the Local has
been chartered since 1966. Although strict compliance with
all the requirements placed on it by its own constitution for
receiving members may not be necessary, in circumstances
like these a union must do something to manifest accep-
tance of an employee's membership application if it desires
to take advantage of the union-security provisions of the
Act. I therefore find as to five of these six employees-all
but Acres-that the signing of an application after the cer-
tification was not enough to establish that they ever be-
came members of the Union. In these circumstances, the
fact that two of these five-Paul Gillam and Loser-served
12 Fort Smith Outerwear, Inc., et al., 205 NLRB 592 (1973).
13 International Brotherhood of Operative Potters, AFL-CIO (Macomb Pot-
tery Company), 171 NLRB 565 (1968).
LOCAL
for a time as supervisors and then reverted to unit work
before the maintenance-of-membership clause became ef-
fective is irrelevant.
James Acres stands on somewhat different footing. He
did more than sign an application. He signed two applica-
tions, and permitted his name to be placed on the charter
of the Local. By this conduct, I find that he manifested an
understanding that a membership relation existed to such
an extent that the Union was not called upon to take any
further action to acknowledge that relationship. However,
when thereafter Acres dropped out of the unit and ceased
to be an employee for a period of 3 years, I find that his
membership lapsed, and that it was not thereafter volun-
tarily renewed. F4 Although the Union issued no withdrawal
card to him, as it was required to do by its constitution, the
existence of that requirement, in article 6, section 11, con-
sidered in conjunction with the qualification in article 6,
section 2(a), to the effect that an applicant for membership
must be "an actual worker in and around the plant," indi-
cates an intent on its part not to consider supervisors as
members in good standing. I therefore find that Acres was
not a member of the Union on May 1, 1972.
Accordingly, I conclude that the Respondent violated
Section 8(a)(1)(A) of the Act by threatening to cause the
discharge for failure to pay dues of Acres, Burchett, Cox,
Loser, Taylor, and Paul Gillam who were not members of
the Union on the effective date of the maintenance-of-
membership clause.
IV. THE ARBITRATION AWARD
The arbitration proceeding appears to have been fair
and regular in that, as far as this record shows, the interests
of these employees were adequately represented in that
proceeding by the Employer who has taken their side
throughout.ls However, I have concluded that I cannot de-
fer to the award, because the results thereof were in direct
conflict with the principles espoused by the Board in the
cases discussed above, and were therefore repugnant to the
purposes and policies of the Act.16
V. THE REMEDY
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(b)(1)(A) of the Act,
I shall recommend that it cease and desist thereform and
take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record in this proceeding,
14 N.L.R.B. v. Local 399, International Brotherhood of Electrical Workers,
AFL-CIO (Illinois Bell Telephone Company), 499 F.2d 56 (C.A. 7, 1974).
15 Cf. Brotherhood of Railway, Airline and Steamship Clerks, Freight Han-
dlers, Express and Station Employees, AFL-CIO, et al (Yellow Cab Company
of Tampa, Inc.), 205 NLRB (1955) 890 (1973), enfd. 498 F.2d 1105 (C A. 5,
1974).
16 Spielberg Manufacturing Company, 112 NLRB 1080 (1955) F.2d 56
(C.A. 7, 1974); Collyer Insulated Wire, A Gulf and Western Systems Co., 192
NLRB 837 (1971); The Associated Press 199 NLRB 1110 (1972), review
denied 492 F.2d 662 (C.A.D.C., 1974); and Local 1522, International Broth-
erhood of Electrical Workers, AFL-CIO (Western Electric Company, Inc.),
180 NLRB 131 (1969), must be distinguished on this ground.
1384, UAW 737
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER17
The Respondent, Local 1384, United Automobile, Aero-
space, Agricultural Implement Workers, UAW, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening to cause the discharge of the below-
named employees, or any other employees, for failure to
pay union dues, except to the extent permitted by the Na-
tional Labor Relations Act, as amended:
James Acres
Sandra K. Baldwin
Genevieve G. Balser
Beatrice Beeman
Roger D. Burchett
Carolee Courtney
Charles Cox
Catherine Crable
Delores M. Dane
linine Frawley
John Gillam
Milton Dale Gillam
Paul Gillam
John S. Gmurk
David Hinds
Harry W. Johnson
Olive J. Kennedy
Delbert Lane
Betty J. Litsey
Don Loser
Eliza M. Williams Mackey
John Mackey
Judith Hoover McCorkle
Kathleen W. McCorkle
Laurnell Miller
Juanita Romine
James Sanders
Michael Schmitt
Carl Seastrand
Paul Junior Shaw
Daniel Swart
Arco Taylor
Elizabeth Susanne Vida
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action:
(a) Advise Ex-Cell-O Corporation and the above-named
employees it has no objection to their employment not-
withstanding their failure to pay dues.
(b) Post at its office and meeting hall in Elwood, Indi-
ana, copies of the attached notice marked "Appendix." Is
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by an au-
thorized representative of the Respondent, shall by Re-
spondent, 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 its
members are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that the notices are not
altered, defaced, or covered by any other material.
(c) Provide the Regional Director with sufficient signed
copies of the notice for posting, the Employer, Ex-Cell-O
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
is In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation, being willing, at places where notices to its the Respondent has taken to comply herewith.
employees are customarily posted. IT IS FURTHER ORDERED that the amended complaint, inso-
(d) Notify the Regional Director for Region 25, in writ- far as it alleges unfair labor practices not specifically found
ing, within 20 days from the date of this Order, what steps herein, be, and it hereby is, dismissed.