Local 1522, Electrical Workers

National Labor Relations Board - Board Decisions

Dec 15, 1969

180 N.L.R.B. 131 (N.L.R.B. 1969)

LOCAL 1522, ELECTRICAL WORKERS
Local 1522 , International Brotherhood of Electrical
Workers, AFL-CIO ( Western Electric Company,
Inc.) and Dorothy E. Keiser . Case 4-CB-1520
December 15, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On September 2, 1969, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices alleged in the
complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter Respondent filed exceptions to
the Trial Examiner's Decision and a supporting
brief, and the General Counsel filed a brief in
support of the Trial Examiner's Decision.
Pursuant to the provision 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 this case and finds merit in
Respondent's exceptions.
The Trial Examiner found that Respondent
violated Section 8(b)(1)(A) and 8(b)(2) of the Act by
causing the Company to discharge Dorothy Keiser
for failure to pay dues at a time when she was not
obligated to do so under the terms of the existing
collective-bargaining agreement. In so finding, the
Trial Examiner rejected an arbitration award which
concluded that Keiser failed to resign from the
Union and therefore her nonpayment of periodic
dues constituted legitimate grounds for her discharge
under the applicable maintenance of membership
clause. Without passing upon the merits of the
alleged unfair labor practice, we find that the Trial
Examiner erred in not honoring the arbitration
award, and on the basis thereof, we shall dismiss the
instant complaint.
The facts show that on January 21, 1967, a
collective-bargaining agreement between Respondent
Union and the Company expired. Thereafter, a new
contract was agreed upon, which became effective
on February 9, 1967. That agreement included a
maintenance of membership clause substantially the
same as that contained in the recently expired
contract. The maintenance of membership clause
provided that employees who were members of the
Union on the effective date of the new bargaining
agreement were required to pay dues as a condition
131
of employment.
In December 1966, before the expiration of the
old agreement, and Keiser, who had been a union
member since 1959, discussed the possibility of
resigning with several other employees. Keiser
testified that she and the other employees inquired
of a Union steward as to how they could perfect a
resignation from the Union. The steward advised
that this could be accomplished by sending a
checkoff deauthorization form letter to the
Company and the Union. Although the other
employees sent letters clearly manifesting their
intention to resign, Keiser on February 7, 1967,
merely sent the checkoff deauthorization to the
Company, with a copy to the Union. That letter
contained no reference to a withdrawal from union
membership.
The Union, by letter of February 21, 1967,
informed Keiser that her resignation was not timely
with respect to the contract and that she must
continue to pay dues to the Union. Keiser's dues
were no longer checked off by the Company and she
did not remit them directly to the Union.
Subsequently she was informed by Keenan, chief of
the Company's public relations department, that the
Union had demanded her discharge, along with 3
other employees, unless her dues were paid up.
Keiser stated that she had resigned from the Union
on a timely basis and that the Union had accepted
her resignation. Keenan then asked Keiser and the
other employees to bring him written evidence of
their resignations as well as the Union's replies
thereto. Later, Keiser was informed that the Union
was taking her case, and that of the other
employees, to arbitration. Keenan advised her that
the Company was going to uphold her position at
the hearing. Although Keiser subsequently asked her
supervisor if she would attend the arbitration
hearing and was told that the supervisor did not
think so, she does not claim to have made any
request of any management representative that she
be permitted to attend.
On July 1, 1968, the arbitrators issued their
decision finding that the three employees, other than
Keiser, had resigned from the Union on a timely
basis and that the contract did not support the
Union's demand for their discharge. Concerning
Keiser, the arbitrators found that Keiser's letter
contained "nothing about resigning from the
Union," and in rejecting the Company's claim that
the deauthorization form was the "laymen's way of
resigning," concluded that said letter "plainly
discloses no desire or even remote intent to resign . .
Accordingly, the award found that Keiser was a
member of the Union on the critical date, and
therefore under the maintenance of membership
clause the Union could insist upon her discharge for
nonpayment of dues.
From the foregoing, it is apparent that the basic
issue before the arbitration panel was identical to
that raised by the instant unfair labor practice
180 NLRB No. 18
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint; i.e., whether Keiser effected a resignation
from the Union prior to the effective date of the
new contract? In refusing to accept the award's
resolution of this issue, the Trial Examiner correctly
concluded that the failure of Keiser to appear at the
hearing was not fatal to the award as the Company
"adequately resisted the union's efforts to remove
Mrs. Keiser from the job." He nonetheless rejected
the award because no evidence was introduced to the
arbitration panel concerning Keiser's conversation
with the Union steward and her reliance thereon,
nor was it argued that the Union understood that
her deauthorization letter was intended as a
revocation of membership.
In the circumstances of this case, neither of the
above factors furnish sufficient basis for departing
from the Board's established policy of giving binding
effect to arbitral determinations made in
proceedings to which all parties have acquiesced,
where the proceedings are fair and regular on their
face, and where the results are not repugnant to the
purposes and policies of the Act.' In the instant case
there is no claim of fraud or collusion in the arbitral
process. Mrs. Keiser was notified that her attempted
resignation would be the subject of arbitration and
that the Company would defend her position. In her
several conversations pertaining to the impending
hearing, she does not claim to have mentioned the
conversation with the Union steward to any
management official. Although she was informed
that her presence probably would not be required at
the hearing, she made no request that she be
permitted to attend nor did she object to
representation by the Company.2 In these
circumstances, it is our opinion that to disregard the
award merely because certain evidence was
presented and contentions advanced in the unfair
labor practice proceeding which were not presented
in arbitration, would do violence to the Board's
policy of encouraging the finality of settlements
reached through voluntarily agreed-upon dispute
settlement machinery. For these reasons, and as the
award resolved the very issue that is determinative
of the instant complaint, we conclude that it will
effectuate the policies of the Act to respect the
award and dismiss the complaint herein in its
entirety.'
'Spielberg Manufacturing Co.; 112 NLRB 1080, 1082.
'See e.g. Eazor Express . 172 NLRB No. 201.
'The position upon which Member Zagoria stands in his dissent has been
rejected by they Beard and the court in International Harvester, 138 NLRB
923, enfd . 321 F.2d 784 (C.A. 7). In that case , as here, the union requested
an employee's discharge under a union-security clause in the
collective-bargaining agreement , because of default in dues payments The
employer rejected the request . The union then filed a grievance which
ultimately went to arbitration The arbitrator upheld the union 's grievance
that the employer had failed to discharge its contract obligation to
discharge the employee for nonpayment of union dues . The Board majority
decided that it should honor the award even though the employee was not
given notice of the arbitration proceeding . The Board said
If complete effectuation of the Federal policy is to be achieved, we
firmly believe that the Board , which is entrusted with the administration
of one of the many facets of national labor policy , should give hospitable
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER ZAGORIA, dissenting:
For the reasons stated by the Trial Examiner, I
would adopt his Decision. I would note moreover,
that Keiser was "represented" at the arbitration
proceeding by the Employer, while the Union, which
would normally represent employees, opposed her
position. Where, as here, the normal roles are thus
reversed, I would inspect carefully the adequacy of
representation, to insure that the equities of the
dischargee's position were fully presented to the
arbitrator.
acceptance to the arbitral process as "part and parcel of the collective
bargaining process itself," and voluntarily withhold its undoubted
authority to adjudicate alleged unfair labor practice charges involving
the same subject matter, unless it clearly appears that the arbitration
proceedings were tainted by fraud , collusion , unfairness , or serious
procedural irregularities or that the award was clearly repugnant to the
purposes and policies of the Act.
The Board held that , although the employee was not given notice of the
arbitration hearing , his interests were vigorously defended by the employer,
and therefore there was no procedural infirmity in the arbitration
proceeding. International Harvester is thus squarely diapositive of the
reasoning in Member Zagorta 's dissent
TRIAL EXAMINER'S DECISION
Statement of the Case
JAMES V. CONSTANTINE, Trial Examiner: This is an
unfair labor practice case brought pursuant to Section
10(b) of the National Labor Relations Act, herein called
the Act. 29 U.S.C. 160(b). It was initiated by a complaint
issued on May 15, 1969, by the General Counsel of the
National Labor Relations Board, through the Regional
Director for Region 4 (Philadelphia, Pennsylvania). That
complaint is based on a charge filed on August 29, 1968,
by the Charging Party, Dorothy E. Keiser. Named as the
Respondent in the charge is Local 1522, Brotherhood of
Electrical Workers, AFL-CIO.
In substance the complaint alleges that Local 1522,
herein also called Respondent or the Union, has violated
Section 8(b)(1)(A) and (2), and that such conduct affects
commerce within the meaning of Section 2(6) and (7), of
the Act. Respondent has answered admitting some facts
but denying that it committed any unfair labor practices.
Pursuant to due notice given to the parties this case
came on to be heard, and was tried before me, on July 17,
1969, at Allentown, Pennsylvania. All parties were
represented at and participated in the trial, and were
granted full opportunity to adduce evidence, examine and
cross-examine witnesses, submit briefs and argue orally.
When the General Counsel rested Respondent moved to
dismiss the complaint. I reserved ruling on that motion. It
is hereby denied on the ground that the General Counsel
has made out a prima facie case. Briefs have been
received from the General Counsel and the Respondent.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
LOCAL 1522, ELECTRICAL WORKERS 133
FINDINGS OF FACT
I AS TO JURISDICTION
Western Electric Company, Inc., the employer involved
in this proceeding, is a Delaware corporation with its
principal office located in New York, New York.
Although it operates plants in various States of the United
States, only its plant at Allentown, Pennsylvania, is
involved in this case. At its Allentown plant Western
Electric manufactures and produces telephone and
electrical equipment and components. During the year
preceding the issuance of the complaint herein said
Allentown plant purchased goods and materials valued in
excess of $50,000 from, and shipped materials valued in
excess of $50,000 to, points outside the Commonwealth of
Pennsylvania. I find that Western Electric Company, Inc.,
is an employer as defined in Section 2(2), and is engaged
in commerce within the meaning of Section 2(6) and (7),
of the Act, and that it will effectuate the purposes of the
Act to assert jurisdiction over this proceeding.
Ii. THE LABOR ORGANIZATION INVOLVED
Local 1522, International Brotherhood of Electrical
Workers, AFL-CIO, i s a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
This case presents the following issues:
(1) Whether Dorothy E Keiser resigned from or
withdrew membership in Local 1522, the Union in which
she admittedly was a member.
(2) If she did resign or did withdraw such membership,
whether Dorothy E Keiser did so at an appropriate time,
so that she was no longer under an obligation to pay dues
to Local 1522 in order to keep her job.
(3) Whether the maintenance of membership clause in
the collective-bargaining contract of February 1967,
between Local 1522 and Western Electric required
Dorothy E. Keiser to remain a member of the Union in
order to keep her fob.
(4) Whether the request of Local 1522 that Western
Electric discharge Dorothy E. Keiser for nonpayment of
dues was lawful.
A. General Counsel's Evidence
provides that
I (a) Each employee who is a member of the Union
on the effective date of this Agreement, and who is also
a member of the Union on or after the 10th day
following the effective date of this Agreement, and (b)
each employee, other than (a) above, who is a member
of the Union on or after the 30th day following the
beginning of his employment or on or after the 30th
day following the effective date of this Agreement,
whichever is later, shall as a condition of employment,
pay or tender to the Union an amount equal to the
monthly membership dues . .
2. The Company may inform employees and
applicants for employment of their rights and
obligations under the provisions of this Article
Said contract of November 22, 1963, expired on
January 21, 1967. However, at no time while it was in
force did Keiser see a copy of this contract.
Some time in December, 1966, Keiser and a few other
female employees discussed resigning from Local 1522
among themselves and also with the union's shop steward,
George Drosdak. In their interlocution with Drosdak
some of the girls asked him "when and how to resign
from the union." He replied "it was ten days before and
sometimes ten days after," and that it could be
accomplished by using a letter form from "the union
booklet." Although the girls present had no "booklet"
they did have with them there, and showed to Drosdak,
the form "letter from the booklet." Drosdak then told the
group to "copy this letter and send one to the company
and one to the union - and then you would be resigned."
This form "letter" is in evidence as General Counsel's
Exhibit 2, and reads as follows.
AUTHORIZATION TO DISCONTINUE PAYROLL
DEDUCTIONS
PLEASE PRINT IN INK
Name . . E. Number
Last First Middle Initial
Section No.
To: WESTERN ELECTRIC COMPANY,In 1959 Dorothy E. Keiser was hired by Western
Electric as a dispatcher and bench hand in Department
8165. On the same day she became a member of Local
1522. Her dues to the Union were paid by means of a
checkoff which she executed, that is, Western Electric
deducted them from her pay and transmitted them to the
Union pursuant to her written authorization
The record is silent as to when Western Electric first
recognized the Union as collective-bargaining agent of the
unit in which Mrs. Keiser was employed. However, the
parties entered into a collective-bargaining contract
covering employees in said unit on October 31, 1963,
effective November 22, 1963, and running for a period of
38 months from said November 22 unless sooner
terminated by appropriate notice in accordance with
Article XXXV thereof. See General Counsel's Exhibit 5.
Among other things said contract contains a checkoff
clause, (Article VI) and a maintenance of membership
clause (Article VII). In pertinent part said Article VII
INCORPORATED
ALLENTOWN, PENNSYLVANIA
I hereby direct the WESTERN ELECTRIC
COMPANY, INCORPORATED, to revoke any
existing AUTHORIZATION TO MAKE PAYROLL
DEDUCTIONS made by me with respect to Union
membership dues
It is understood and agreed that the WESTERN
ELECTRIC COMPANY, INCORPORATED,
assumes no responsibility or obligation hereby, other
than to discontinue all deductions in accordance with
this authorization.
Signature of Employee.,
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TO BE FILLED IN BY THE COMPANY the Union and the Company of his withdrawal from
Date received by the Company . . . . . . . . . memberhsip in the Union ." And Article 6 describes the
Date Effective . . . . . . . . . . . . . . . manner in which an authorization for deduction of union
This form is also to be found in the collective - bargaining dues may be revoked.
contracts in evidence as General Counsel ' s Exhibits 5 and Some time after Mrs. Keiser received the letter of
6.
Mrs. Keiser had with her a copy of said "letter" in
evidence as General Counsel's Exhibit 2 during the above
talk with Drosdak. After the above conversation with
Drosdak, Mrs. Keiser copied said letter "word for word"
and mailed a "certified letter" to Western Electric and
another identical one to the Union. This letter is in
evidence as General Counsel's Exhibit 3A and reads as
follows:
January 23, 1967
Keiser Dorothy H. 11013 8165
Last First Initial E . No. Section
To Western Electric Co., Incorporated
Allentown, Pa.
I hereby direct the W. E. Co., Incorp. to revoke
any existing Authorization to make Payroll deduction
made by me with respect to Union membership dues.
It is understood and agreed that the W. E. Co.,
Incorp. assumes no responsibility or obligation hereby,
other than to discontinue all deduction in accordance
with this authorization.
(signed ) Dorothy H. Keiser
Mrs. Keiser mailed a copy 10 days before and another
l day after "the strike was over" to Western Electric. One
of these letters was also mailed to the Union on February
7, 1967. See General Counsel's Exhibit 3B. By letter dated
February 21, 1967, the Union wrote to Mrs. Keiser that:
Your letter of resignation was not timely in accordance
with the contract with the Western Electric Company.
If you have canceled your payroll deduction of Union
dues you must then pay your dues to the Local Union
Office as a condition of employment.
This was signed by "Albert E. Otto, Financial Secretary"
of Local 1522. See General Counsel's Exhibit 4. After
receiving this letter from the Union Mrs. Keiser did not
pay any further dues to it. Nor did anyone from the
Union at any time thereafter speak to Mrs. Keiser about
her membership or nonmembership in the Union.
On February 4, 1967, Local 1522 and Western Electric
executed a new collective-bargaining contract covering the
employees in the unit in which Mrs. Keiser was employed.
See General Counsel's Exhibit 6. Article 35 thereof
provides that the contract "shall become effective
February 3, 1967, but only if ratified by the union
membership and approved by the International office of
the Union on or before February 10, 1967," and shall
terminate 36 months after said effective date unless sooner
terminated at a stated time upon appropriate notice.
Among other provisions this contract contains a checkoff
clause (Article 6) and a maintenance of membership
clause (Article 7).
Said Article 7 in part provides that an employee "may
terminate his obligation to tender periodic Union dues to
the Union as a condition of employment by notifying both
February 21, 1967, from the union, she was called to the
office of Mr. Keenan, chief of Western Electric's public
relations department. Keenan told her that the Company
had received a letter from the Union stating that the
Union would have her and three others fired if their dues
were not paid up by a certain date. Continuing, Keenan
stated that the Union claimed the letters of these four
were untimely, but said that the Company replied that
these letters "might have been timely." Keiser claimed
that her letter was timely and that "they had accepted her
resignation." Keenan also asked the four employees to
bring him any written evidence of their resignations and
written replies thereto by the Union. Keiser turned over to
Keenan the Union's letter of February 21, 1967, to her.
See General Counsel's Exhibit 4.
Later Mrs. Keiser learned that her case, as well as
those of the three other employees mentioned in the
preceding paragraph, was being taken to arbitration on
March 8, 1968. Although she asked her supervisor
whether she would attend the arbitration hearing he
replied that, while he did not know, he did not think so.
However no representative of Western Electric or the
Union ever requested her to attend it. Accordingly, Mrs.
Keiser did not go to the arbitration hearing. Keenan told
her that the Company was going to uphold her position at
that hearing.
On July 3, 1968, Western Electric informed Keiser that
the arbitrators had decided on July 1, 1968, that the
Union could have her fired or demand all back dues, and
that the Union had asked the Company to discharge her.
See Respondent's Exhibit 6 for the Arbitration Opinion
and Award of July 1, 1968. On August 9, 1968, Western
Electric terminated Mrs. Keiser. She was rehired by
Western Electric on May 15 or 17, 1969.
In its Opinion and Award the Arbitration Panel found
that the contract of February 4, 1967, became effective on
February 9, 1967, when the International President of the
Union approved it. That Panel also found that (a) Keiser
did not resign because her "letter" was "written in clear
and technical language and plainly discloses no desire or
even remote intent to resign ," (b) that she was a member
of the Union on February 9, 1967, and (c) that since she
was delinquent in her dues the Union could ask for her
discharge or require that she pay all back dues and all
future dues as long as she remained a member of the
Union.
B. Respondent's Evidence
1. The testimony of Ed Brobst
Ed Brobst, the union's president, was Respondent's
only witness. His testimony is detailed below.
Contracts between Local 1522 and Western Electric
have been available to employees at all times. Employees
have been informed by Brobst at monthly union meetings
that such contracts can be obtained by them at the local
union office. In addition, notices posted on the union
bulletin boards (about 20 in all) in the plant advise
employees that contracts may be had at the local union
office.
Prior to the investigation by the NLRB of Mrs.
Keiser ' s charge in this case Brobst was not aware that
LOCAL 1522, ELECTRICAL WORKERS
Local 1522 had written to Mrs. Keiser a letter (G.C. Exh.
4) dated February 21, 1967, informing her that her letter
of resignation was untimely. He first learned of General
Counsel's Exhibit 4 from the NLRB. Nor did Brobst
instruct the union's clerical secretary, employed at the
union office as a full-time employee, to mail to Keiser the
letter in evidence as General Counsel's Exhibit 4. In fact
Keiser "should not have received a letter of this nature."
Nevertheless General Counsel's Exhibit 4 was signed by
an officer of the Union, Albert E. Otto, its financial
secretary. Among Otto's duties is the obligation "to take
care of the . . . financial end of the local union .
[including] dues [and] . the collection of dues."
However, General Counsel's Exhibit 4 was a "form letter"
sent to Keiser and 43 other employees who "had taken a
position along the line of sending letters to the Local on
the basis of terminating their dues, their revocation of
dues, or a letter resigning from the local union."
The collective-bargaining contract which is in evidence
as General Counsel's Exhibit 5 contains no provisions
pertaining to resignations or withdrawals from
membership in the Union.
2. Documentary evidence
On June 13, 1967, Local 1522 filed a written grievance
with Western Electric demanding that five employees, one
of whom is Dorothy Keiser, be terminated "in accordance
with Article 7, Section l.b, of the Agreement." (This
Section relates to maintenance of membership in the
Union as a condition of employment.) In pertinent part
Western Electric's reply to said grievance, typewritten
thereon, avers that "The Company was advised by . . .
Dorothy Keiser ... [and two other employees] that they
were not members of the Union on the effective date of
the General Agreement and, therefore, are not obligated
to tender to the Union periodic union dues as a condition
of employment." See Respondent's Exhibit 2.
Thereafter the grievance was submitted to arbitration.
A transcript of the arbitration hearing is in evidence as
Respondent's Exhibit 4. Keiser did not participate therein.
Nor did anyone testify at the arbitration hearing that the
union job steward, George Drosdak, had informed Keiser
and other employees that they could use the form
presented to him, i.e., General Counsel's Exhibit 2, as a
vehicle of withdrawing or resigning from the Union. Nor
did Western Electric's only witness, George Lee, its
"bargaining agent," testify that Keiser ' s letter (G.C. Exh.
3A) was considered by Lee to constitute a withdrawal or
resignation from the Union . In fact Lee did not mention
said letter in his testimony. However, Western Electric
argued or contended that said letter amounted to a
resignation from the Union.
On July 1, 1968, an Opinion and Award was rendered
by the Arbitration Panel deciding (a) that Keiser had not
effectively resigned or withdrawn from the Union, and (b)
giving the Union the option of having Keiser terminated
or requiring her to pay all back dues immediately and
current and prospective dues as they became payable. See
Respondent's Exhibit 6. As recited above the Union
elected to have Keiser discharged ; and she was discharged
on August 9, 1968.
C. Concluding Findings and Discussion
1. As to whether Mrs. Keiser withdrew or resigned
from the Union
It is my opinion , and I find, that the document in
evidence as General Counsel's Exhibit 3A constitutes a
135
resignation or withdrawal from Local 1522 by Mrs.
Keiser. While neither the words "withdraw" nor "resign"
are used in said instrument, I find that all parties affected
thereby (i.e., Mrs. Keiser, the Union, and Western
Electric) understood that it was intended to take effect as
a withdrawal or resignation by Mrs. Keiser from the
Union and so treated it.
The foregoing finding that the above instrument in
writing amounts to a withdrawal or resignation is based
upon the entire record and the following factors, which I
also find as facts:
(a) When a group of employees, one of whom was Mrs.
Keiser, asked George Drosdak, the union's shop steward
when and how to resign from the Union, he replied that
this could be accomplished by executing a letter form
found in "the union booklet," and mailing one copy to the
Company and one to the Union. I find that Drosdak
acted as an agent of the Union on this occasion when his
advice was sought; that he was acting at least within the
apparent scope of his authority as such agent in uttering
these words; and that the employees, including Keiser,
were warranted in relying on Drosdak's statements and
adopting the procedure outlined by him. Cf. Hughes
Aircraft Company, Tucson Division, 164 NLRB No. 6.
This letter form is in evidence as General Counsel's
Exhibit 2.
(b) Western Electric, the Employer, construed the letter
(G.C. Exh. 3A) as a resignation from the Union, and not
only informed the Union thereof but in addition so
contended at the arbitration hearing. While the employer's
construction is not binding upon me or the Union, it
nevertheless is significant on the issue of whether General
Counsel's Exhibit 3A is capable of conveying to another
person Keiser' s message that she desired thereby to sever
her connection with the Union.
(c) Local 1522 interpreted the letter as a resignation
and so informed Mrs. Keiser. Thus it wrote to Mrs.
Keiser on February 21, 1967, that "Your letter of
resignation was not timely . . ." See General Counsel's
Exhibit 4. I find that the union's letter was signed by
Albert E. Otto, its financial secretary, and that said Otto
had authority as an agent of the Union to issue and sign
said letter. Moreover, Keiser's communication to the
Union was to the attention of "A. E. Otto." See General
Counsel's Exhibit 3B. It is true that Ed Brobst, the
union 's president, testified that not until much later did he
become aware of the contents of General Counsel's
Exhibit 4, that he did not instruct anyone to mail this
letter, and that Mrs. Keiser "should not have received a
letter of this nature." But I expressly find that Otto had
at least apparent authority to issue , sign , and transmit
such a letter, especially in the light of Brobst's testimony
that Otto was vested with authority to "take care of the
financial end of the local union ... [including] dues [and]
the collection of dues," and the further fact that
Otto's name appeared on the envelope addressed to the
Union by Keiser. See General Counsel's Exhibit 3B.
Further, even on Brobst's own testimony it is clear that
General Counsel's Exhibit 4 was a "form letter" sent to
Keiser and 43 other employees who had sent notices to the
Union "terminating their dues, their revocation of dues,
or . . . resigning from the local union." It is thus patent
that, regardless of the particular wording on the employee
letters to it, the Union regarded all 44 of them as notices
of resignation and replied in the same vein to these 44
employees. No reason appears in the record why a
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different form of reply could not be or was not used for
those notices worded as revocations of checkoffs. This
deliberate use of a form reply, when another could have
been used , is persuasive on the question of how the Union
looked upon or regarded Keiser 's letter in evidence as
General Counsel's Exhibit 3A.
(d) The 1963 collective-bargaining contract between
Western Electric and Local 1522 (G.C. Exh. 5), the last in
effect before February 9, 1967, contains no provision
prescribing the manner in which resignations or
withdrawals from the Union may be consummated. In the
absence of such guidance it is reasonable to expect that
employees like Mrs . Keiser, who are unfamiliar with the
precise language necessary to achieve a desired result, will
word a notice of resignation in nontechnical language.
That is precisely the course which Mrs. Keiser pursued. I
find that it is a reasonable course designed to express her
intention to resign , especially when evaluated along with
the union 's job steward 's advice that such language was
proper to attain that end.
2. As to whether Mrs. Keiser' s resignation from the
Union was timely
Shortly after her employment Mrs. Keiser became a
member of the Union and remained such for a
considerable period of time. Under the provisions of
Article VII of the collective- bargaining contract of
November 22, 1963, between Western Electric and Local
1522 she was required to maintain said membership and
pay dues as a condition of employment . See General
Counsel's Exhibit 5. However, said contract expired on
January 21, 1967. Thereafter she was free to resign from
Local 1522 provided she did so before a new contract was
executed by the parties containing an effective
maintenance of membership clause.
It is my opinion , and I find, that a new contract was
executed by the parties on February 9, 1967, when the
International Office of Local 1522 approved the contract
agreed upon by Western Electric and Local 1522. See
General Counsel's Exhibit 6, p. 61. Said agreement in
Article 35 expressly conditions the contract's viability or
genesis "only if ratified by the Union membership and
approved by the International office of the Union on or
before February 10, 1967." Although it was executed on
February 4, 1967, and ratified by the membership on
February 6, 1967, I find that the contract did not bind the
parties and come into force until it was approved by the
International ' s president on February 9, 1967. Western
Roto Engravers, Inc., 168 NLRB No. 142, is
distinguishable.
While said Article 35 of the contract states that it shall
become effective February 3, 1967, I find that this
retroactive feature bound only the parties thereto and did
not affect third parties like Mrs . Keiser. Standard
Molding Corporation, 137 NLRB 1515, 1516.
Accordingly , I find that no contract existed between the
parties from January 21, 1967, when one contract expired
(General Counsel's Exhibit 5) and February 9, 1967
(General Counsel's Exhibit 6). Further, I find that any
employee in the unit covered by said contract - and Mrs.
Keiser was included in said unit - was free to resign or
withdraw from the Union during the period from January
21, 1967, to and including February 9, 1967. May
Department Stores, Inc., 133 NLRB 1096, 1097; The
Boeing Company, 173 NLRB No. 71, p. 6.
In addition , as narrated above , I find that Mrs. Keiser
withdrew or resigned from the Union and that she mailed
an instrument to this effect , properly addressed to Local
1522, on February 7, 1969. See General Counsel ' s Exhibit
3B. It was received by the Union on February 9, 1967. No
different result is dictated simply because the Union by
letter dated February 21, 1967, wrote to Mrs. Keiser that
her letter of resignation was not timely . The words "was
not timely" are but a conclusion not based on any
evidence in the record and are not binding on me.
Accordingly , I find that Mrs. Keiser ' s letter of
resignation from the Union became effective not later
than February 9, 1967, and, therefore , she resigned or
withdrew from the Union before the new contract (G.C.
Exh. 6 ) became operative and obligated members of the
Union employed in the unit to maintain their membership
in the Union . U.A. W. Local 899, AFL-CIO, 137 NLRB
901, 904.
3. Whether the NLRB will defer to the arbitration
award
As recited above an arbitration award was rendered on
July 1, 1968, upon a grievance instituted by Local 1522.
In pertinent part this grievance demanded that Mrs.
Keiser be terminated in accordance with Article 7, Section
l.b, of the current contract (in evidence as G.C. Exh. 6)
on the ground that she never resigned from the Union,
and that she was delinquent in paying her union dues as a
condition of employment . See page 4 of Respondent's
Exhibit 6 . That award decided that Mrs. Keiser had not
resigned from union membership and granted Local 1522
the option of requesting that Mrs. Keiser be terminated or
requiring her to pay past and prospective dues. See page
l1 of Respondent ' s Exhibit 6. Local 1522 elected to have
her discharged ; and she was discharged accordingly on
August 9, 1968.
Upon this aspect of the case the question is whether the
Board will defer to said arbitration award and recognize it
as defeating Keiser's right to reinstatement and backpay.
It has been the Board 's policy to stimulate settlement
of labor disputes and, to this end, the Board has held that
it will honor or recognize an arbitration award provided
(a) all parties have acquiesced in referring a dispute to
arbitration and (b) the proceedings appear to have been
fair and regular , all parties had agreed to be bound, and
the decision of the Arbitration Panel is not palpably
wrong or plainly repugnant to the Act. Spielberg
Manufacturing Company , 112 NLRB 1080, 1082.
Nevertheless an arbitration award will be disregarded by
the Board unless the issue to be resolved by the Board
must have been fully and fairly litigated before an
impartial arbitrator. Otherwise the Board will not honor
the award . Rotax Metals, Inc., 163 NLRB 72, 78;
International Harvester Company , 138 NLRB 923, 928;
affd . 327 F.2d 784 (C.A. 7); cert . denied 377 U.S. 1003.
It is my opinion , and I find, that the arbitration award
in evidence as Respondent ' s Exhibit 6 does not meet one
of the standards prescribed by the Board as a condition of
accepting the award . Cf. Pride Candy and Tobacco
Company , 178 NLRB No . 16, fn. 2 . In this connection I
find that , although Keiser did not participate in the
arbitration proceedings, this alone is not fatal to accepting
the award as a valid disposition of the issue before the
Board . This is because Western Electric adequately
resisted the union 's efforts to remove Mrs. Keiser from
the job. International Harvester Company , 138 NLRB
923, 928.
In one respect , however, as related above, the
proceedings before the Arbitration Panel fail to conform
LOCAL 1522, ELECTRICAL WORKERS 137
to the standards promulgated by the Board as a
prerequisite to upholding arbitration awards deciding
issues later before the Board Thus I find that the issues
of whether Mrs. Keiser was advised by the union's job
steward as to the form to use in resigning from the Union,
whether she relied on such advice, whether she used such a
form intending it to constitute a resignation, and whether
the Union construed her letter as a resignation, were
neither tried nor argued before the Arbitration Panel.
Hence I find that such Panel did not have before it, nor
did it pass upon the question, now submitted to the Board,
of whether Mrs. Keiser was warranted in using a form of
resignation recommended to her by an agent of the
Union, and whether the Union considered such form as a
resignation. Accordingly I find that these issues were not
presented to the Arbitration Panel and therefore the
arbitration award is not an impediment to the Board's
passing upon them in the instant proceeding. Rotax
Metals, Inc , 163 NLRB 72, 78-79.
It follows, and I find, that the arbitration award should
not be followed by me because the Arbitration Panel did
not have before it evidence touching upon the questions of
whether a union agent led Mrs Keiser to believe that the
form she used was adequate to amount to a resignation
from the Union, that she relied on such belief, and that
the Union construed her letter as a resignation. Cf Ford
Motor Company, 131 NLRB 1462, 1463-64.
Accordingly, I have disregarded the arbitration award
which decided that Mrs. Keiser had failed to resign from
the Union, and have given no weight to it. Cf. U.A. W.
Local 899, AFL-CIO, 137 NLRB 901, 905, fn 7.
Elsewhere in this decision I have found that she timely
resigned her membership in Local 1522
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section 111,
above, occurring in connection with the operations of
Western Electric Company, Inc., have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor
disputes burdening and obstructing the free flow of
commerce.
V. THE REMEDY
As Respondent has been found to have engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take specific
affirmative action, as set forth below, designed to
effectuate the policies of the Act. Since Mrs. Keiser has
returned to work for Western Electric, no provision will
be made regarding reinstatement to her former position
there.
Because Mrs. Keiser remained out of work for a period
of time, I shall recommend that Local 1522 make her
whole for any loss of earnings suffered by her discharge
by paying her a sum of money for such loss. Said sum
shall be equal to such compensation as she would have
earned as wages from the date of her discharge by
Western Electric to the date she returned to work for such
Employer, less her net earnings during such period. Any
backpay shall be computed on a quarterly basis in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent per annum
pursuant to the formula adopted in Isis Plumbing &
Heating Co.. 138 NLRB 716.
Respondent's conduct does not demonstrate general
hostility to the policies of the Act. Accordingly, I find
that a broad Order is not warranted on the record in this
case. I find that only a narrow Order is justified limited to
preventing the recurrence of the unfair labor practices
found herein
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I Local 1522 is a labor organization within the
meaning of Section 2(5) and 8(b) of the Act.
2. Western Electric Company, Inc., is an employer
engaged in commerce as defined in Section 2(6) and (7) of
the Act
3. By attempting to cause and causing the Employer,
Western Electric Company, Inc., to discriminate against
Dorothy E. Keiser, an employee thereof, in violation of
Section 8(a)(3) of the Act, Local 1522 has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act..
4. By misleading Dorothy E. Keiser as to how she may
withdraw from membership in the Union at an
appropriate time, causing her to submit an improperly
worded withdrawal of membership, Local 1522 has
engaged in an unfair labor practice within the meaning of
Section 8(b)(1)(A) of the Act. (See Hughes Aircraft
Company, Tucson Division, 164 NLRB No 6.)
5. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act
[Recommended Order omitted from publication.