Local 340, Potters

National Labor Relations Board - Board Decisions

Apr 30, 1969

175 N.L.R.B. 756 (N.L.R.B. 1969)

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 340, International Brotherhood of Operative
Potters , AFL-CIO, and International Brotherhood
of Operative Potters, AFL-CIO (Macomb Pottery
Company ) and Dorothy Matthews. Case
38-CB-149
April 30, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On February 10, 1969, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged in
certain unfair labor practices and recommending
that they cease and desist therefrom and take
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter,
Respondents filed exceptions to the Decision and a
supporting brief, and the General Counsel filed a
brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondents , Local 340,
International Brotherhood of Operative Potters,
AFL-CIO, and International Brotherhood of
Operative Potters, AFL-CIO (Macomb Pottery
Company), Macomb , Illinois, their officers , agents,
and representatives , shall take the action set forth in
the Trial Examiner ' s Recommended Order.
'In adopting the Trial Examiner's finding that Respondents violated
Section 8(bXI)(A) and (2) by attempting to cause the discharge of
Matthews for nonpayment of dues, we rely solely upon the fact that
Matthews, having effectively revoked her union membership, prior to the
execution of the applicable collective-bargaining contract , was not covered
by the union-secunty provisions of that agreement See International
Brotherhood of Operative Potters, AFL-CIO (Macomb Pottery Company),
171 NLRB No 79.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: In this case, which
was tried before Trial Examiner Eugene F. Frey, at
Macomb, Illinois , on October 2, 1968, with General
Counsel of the National Labor Relations Board and
Respondents appearing by counsel and Dorothy
Matthews, the Charging Party, appearing pro se, the sole
issue is whether or not in July 1968, Respondent Unions'
attempted to cause Macomb Pottery Company, the
Employer, to discharge Dorothy Matthews, who was not a
member of Respondents, because she failed to pay dues to
Respondents or to execute a checkoff authorization in
their behalf, in violation of Section 8(b)(2) and 8(b)(1)(A)
of the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq., herein called the Act. The issue
arises on a complaint issued August 26, 1968, by General
Counsel through the Board's Regional Director for
Subregion 38,2 and answer of Respondents admitting
jurisdiction but denying the commission of any unfair
labor practices. At close of the testimony, General
Counsel and Respondents presented short oral arguments
and thereafter filed written briefs with the Trial Examiner,
all of which have been carefully considered in preparation
of this Decision.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor on the
stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND STATUS OF
RESPONDENTS
The Employer, Macomb Pottery Company, is an
Illinois corporation engaged in the manufacture of pottery
and ceramics at its plants in Macomb, Illinois. In that
business the Employer has an annual direct outflow of
goods worth in excess of $50,000. Respondents admit, and
I find, that at all times material herein the Employer has
been engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The Local and the International are labor organizations
within the meaning of Section 2(5) of the Act, and Loyd
Burton has acted at all material times herein as agent of
each.
II. THE UNFAIR LABOR PRACTICES
A. Background Events
The International began an organizing campaign at the
Macomb plant in January 1964, when employee John
Waddell wrote to Frank Dales, a vice president of the
International, for assistance. Dales mailed him union
authorization cards, with instructions to distribute them,
get them signed, and return them to Dales. Waddell and
his brother, Ben, handled most of the distribution and
together procured most of the signed cards and returned
them to Dales. Late in 1964, the International petitioned
'Respondents will be called collectively herein "the Unions," Local 340
will be called "the Local," and the International Brotherhood "the
International."
'The complaint issued after Board investigation of charges filed by
Dorothy Matthews on August 1 and 26, 1968.
175 NLRB No. 123
LOCAL 340, POTTERS
the Board for an election,. which was held in February
1965. Thereafter, the -International was certified by the
Board in July 1965, as statutory bargaining agent. The
Employer resisted its demand for bargaining and, after
extensive litigation,' negotiated and executed with the
International a collective-bargaining contract , effective
from June 13, 1967, to June 13, 1970. Two pertinent
clauses of the contract, union-security and checkoff, read
as follows:
Union Security. It shall be a condition of employment
that all employees of the Company covered by this
Agreement who are members of the Union in good
standing on the effective date of this Agreement shall
remain members in good standing. Furthermore, all
employees covered by this Agreement who are hired on
or after its effective date shall, no later than the 31st
day following the beginning of such employment,
become and remain members in good standing in the
Union. Individuals employed by the Company on the
effective date of this Agreement who are not members
of the Union on such date shall not be required to join
the Union during the terms of this Agreement.
The Union agrees that it will make membership in the
Union available to all employees on the same terms and
conditions as are generally applicable to other members
of the Union and, further, that it will not demand the
discharge pursuant to this provision of any employee
who has been denied membership in the Union or
whose membership has been terminated for any reasons
other than his failure to tender the initiation fee and
periodic dues uniformly required as a condition of
acquiring or retaining membership in the Union.
Checkoff. The Company will honor individual
authorizations for dues deduction , voluntarily executed
by the employees , provided the same conforms to
applicable law. All deductions shall be made during the
first pay of the calendar month . All sums deducted shall
be remitted to the Secretary -Treasurer of the
International Union not later than the 15th day of the
calendar month in which such deductions are made.
Upon appropriate ' written notice from the
Secretary -Treasurer of the International Union, a
portion of the dues deductions shall be forwarded
directly to the Local Union . The Employer will furnish
the International Union and the Local Union a monthly
record of those for whom deductions have been made
together with the amount of such deductions.
The Unions ' current , constitution has the following
provision on acquisition of membership in the Unions:
Section 1 . The Brotherhood shall be composed of
workers eligible for membership in the International
Brotherhood of Operative Potters , AFL-CIO, CLC.
Section 2 . Any person working in an industry under the
jurisdiction of the Brotherhood may be eligible to
become a member of the Brotherhood. Such person
shall apply for membership to the Local Union having
jurisdiction over the pottery or plant in which such
person is employed . The applicant must , at the time of
application be an actual worker in and around the
pottery or plant and tender one-half of the initiation fee
upon application . All applicants shall be considered for
membership by the Local Union and should such
'376 F 2d 450 (C A. 7), enfg. 157 NLRB 1616
757
applicant be accepted, membership shall date from the
first day of the month for which dues are paid. Where a
new Local is being organized, application must be made
to the International for acceptance.
Section 3. Any applicant, having been duly notified of
his acceptance, who does not appear for initiation
within thirty (30) days of such notification shall forfeit
all money paid by him.
Section 4. All members shall be bound by the
provisions of this Constitution and the By-Laws of the
Local Union of which they are members.
B. The Relationship of Matthews to Respondents and
Their Knowledge of Her Conduct
Dorothy Matthews has been continually employed by
the Employer since August 1952, and at the time of the
hearing was still so employed in the bargaining unit
covered by the contract aforesaid. On July 23, 1964, John
Waddell solicited Matthews to sign a card whereby the
signer authorized the International to act as his bargaining
agent and also applied for membership in that
organization . After asking Matthews if she wanted to
make more money, and getting an affirmative response,
Waddell gave her the card, explaining that a group of
workers were "trying to get enough signers to hold an
election to vote on a union ," and asked if she wanted to
sign . She asked, "Is that what the card is for?" and he
replied it was. She said she would think about it. She took
it home, read it over, and then signed and returned it to
Waddell on July 24. He or his brother, Ben, sent it with
other signed cards to the International. About a week or
so later, Matthews approached John Waddell, said she
had thought it over and did not want to have anything to
do with the Union, and asked him to get her card back
and tear it up. He replied that he could not, as he had
already sent it in. He added that it would not make any
difference, for if the Union was voted in, she would have a
chance to join or not join it. He also said that if she
joined it within 30 days after it was voted in, she would
not have to pay any initiation fees. She replied that she
did not care to join it.
On the basis of receipt of her signed card, the
International began to mail Matthews its weekly
publication, The Potters Herald, and she has received it
regularly ever since. Since her last talk with Waddell,
Matthews has taken no part in any activities of
Respondents," such as attending union meetings, paying
dues, or other fees, or executing a checkoff of dues
authorization, nor has she ever received any
communications from Respondents, oral or written,
regarding her membership therein, or payment or
nonpayment of dues. When the Unions held a meeting of
employees in April 1966 to call a strike Matthews
received no notice of the meeting, did not attend it, and
during the 5-week strike she openly crossed the picket line
and continued to work, without receiving any warning,
admonition, or discipline from striking employees or
officials of Respondents who saw her crossing the picket
line. Sometime before the strike, she had circulated a
petition openly among employees at the plant on her own
time, securing about 90 signatures to the document which
criticized statements and conduct of union officials in their
relations with the Employer. After the strike, Matthews
The Local was organized with elected officers in April 1965, and
thereafter was chartered by the International.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circulated another petition of similar content openly
among the workers on her own time, securing about 92
signatures on it.' Union members, including John Waddell
and President Loyd Burton of the Local, saw this activity,
and some of the employees told her that the second
petition was not worth the paper it was written on.
In the period between the strike and the execution of
the contract, Matthews often talked to Carolyn J.
Gadbury, who was financial secretary of the Local, her
sister, Sue, and four or five other members of the Local
about the Union, indicating that she was opposed to the
Union, that she was sorry she had signed a union card,
and had asked to get out of it, because she wanted
nothing to do with it. Before she signed the card,
Matthews and John Waddell had been on friendly terms,
as they worked near each other in the same department,
but after she asked to have her card torn up, and Waddell
said he could not do it, their relations cooled, so that
neither spoke to the other; in fact Waddell and Burton
avoided her, Waddell admitting that "after I got the card
things changed, I took it for granted that she did not
think much of what we were doing, I mean as far as
organizing the union," and he talked to her only if she
talked to him, as "there was no sense in trying to talk to
her." Waddell admitted that he often passed the word
around to workers about union meetings, but he did not
talk to Matthews about it "after she gave me the air that
she was against it"; and Burton admitted he made no
attempt to talk to Matthews when he saw her crossing the
picket line.
Shortly after the contract of June 13, 1967, was signed,
Matthews was told by an employee that a union member,
Helen Brown, had commented in an argument that one
Linda Clark had not quit work after the contract date
because she would have to join the Union, since Clark had
signed a union card at the same time as Matthews.
Matthews asked Brown if she had said that Clark was a
union member like Matthews, and Brown admitted she
did. Matthews then told her she did not think she was a
member merely by signing the card, because she had
asked to have it torn up, and she wanted nothing to do
with the Union, did not consider herself a member, had
never been asked to pay dues or sign a checkoff
authorization, and that she would not pay dues until they
proved she was a member. Brown commented, "Come on,
and get your feet wet," but Matthews declined. This talk
was in the presence of Sue Gadbury.'
C. The Action of Respondents
The parties stipulated that on November 14, 1967, and
again on or about July 26, 1968, Respondents through
their agent, Loyd Burton, requested the Employer to
discharge Matthews for nonpayment of dues and fees
uniformly required of all members of Respondents. These
requests were without any prior warning to Matthews that
'The record indicates about 150 employees in the bargaining unit at time
of the election.
'I find the above facts from credited testimony of Matthews and
documentary evidence, as corroborated in large part by admissions of John
Waddell and Burton . Testimony of any of these witnesses at variance with
the findings is not credited . In thus crediting Matthews , I have carefully
considered certain inconsistencies in her direct and cross -examination as to
the dates of her circulation of the two petitions and certain aspects of her
July 23 talk with Waddell , but conclude that these contradictions do not
destroy her general credibility or the consistency of her story on other
aspects of her open opposition to the Unions , particularly since such
aspects are not contradicted by witnesses of General Counsel or the
Unions.
she could be discharged for nonpayment of dues. I find
from uncontradicted testimony of Matthews that on the
latter date Larry Gilmore, assistant superintendent of the
Employer, told Matthews that Burton had given him her
signed union card and a form for checkoff authorization,
and that she either had to pay dues or would be
discharged. She told him she had requested that her union
card be torn up, that she did not consider herself a
member of Respondents, and that she would file charges
with the Board. The Employer has refused to discharge
Matthews as requested.
D. The Issues, Contentions of Parties, and
Concluding Findings
Respondents justify their request for Matthews'
discharge for nonpayment of dues upon the premise that
she became a member of Respondents when she signed the
application for membership in 1964, which was accepted
by the International, that her membership continued after
the 1967 contract was executed, so that she was bound by
its provisions quoted above, and that she never properly
revoked or terminated her membership, by effectively
communicating to Respondents any steps she may have
taken for that purpose. Since this defense is based on a
valid membership from July 24, 1964, and Respondents
must prove that as a fact, the first issue is whether her
original application for membership was valid or was
induced by representations that the card would be used
only to procure an election. If that issue is resolved in
favor of Respondents, then the question of a proper and
effective revocation of membership before June 13, 1967,
must be decided; and that issue involves two corollary
questions: (1) whether John Waddell was an agent of
Respondents so that Matthews' statements to him
indicating a desire to withdraw from Respondents was
notice to them, and (2) assuming Matthews was still a
member after June 13, 1967, whether Respondents'
relationship to her required a warning to her before they
requested her discharge.
General Counsel claims the execution of the dual
purpose card was void ab initio . The initial statements
made by Waddell to induce Matthews to sign it afford
strong support for a finding that during that talk Waddell
stressed the fact that the card would be used only for an
election, and that she did not have to consider whether or
not to join the Union until after an election. That finding
is fortified by Waddell's admission that the statements he
made about the election's purpose to Matthews were the
same as he made to all employees he solicited, as an
election under Board auspices "was the only way I
understood the Union would get recognition." Under
well-settled Board law such representations, standing
alone , would vitiate the card, even though the card on its
face appeared to be an unambiguous authorization to the
Union to represent the signer for collective bargaining.' I
note, however, that Matthews did not sign the card at the
time of the representations, but took it home, read it over
carefully, and then gave it to Waddell without making any
changes in its wording, or referring to her claimed intent,
as presently stated, that she was turning it in only for use
to secure an election.' Having observed her demeanor and
manner of testimony on the stand, I am satisfied that she
is an intelligent woman who knew from reading the card
'Levi Strauss & Co., 172 NLRB No. 57.
'I do not rely on her testimony of her subjective intent that she signed it
and turned it in in reliance on the election representation only.
LOCAL 340, POTTERS
that it was clearly both a designation of the International
as her agent and an application for full membership in it,
even before an election, and this finding is supported by
the later facts that she shortly asked to have it torn up,
indicating that she wanted to "get out of' the
International; these are the type of remarks one would
expect from a person who had joined an organization and
wanted to sever all connections with it.' Her later
statements about this to other union members including
an officer of the Local are consistent with this view. I
therefore conclude that Matthews realized from the outset
that she was applying for membership and shortly
regretted her action and tried by application to Waddell to
withdraw her membership application, and repeatedly
thereafter indicated to other union members that she
considered herself out of the organization. The next
question is, were her efforts then and later in this direction
effective to terminate her connection with Respondents
before June 13, 1967?
Respondents admit, and I find on the above facts, that
Matthews became an open and active opponent of the
Unions some time after she signed the application for
membership, and that she manifested this opposition and
a frank desire to withdraw from the International, not
only to Waddell, but to other union members including
one who became an official of the Local in 1965, both in
the plant and during the strike of 1966. Respondents
claim, however, that she never effectively canceled her
membership because, in the 3 or more years between
execution of the card and Respondents' request for her
discharge, she never availed herself of many obvious
chances to make an effective withdrawal by direct
communication to either of Respondents or any of their
known officials. At the outset, Respondents' attempt to
dispose of Matthews' initial direct announcement of
withdrawal to Waddell by attacking her credibility is
disposed of by my findings of the facts of that
conversation, from which it is clear that she plainly and
unequivocally told him she wanted to terminate her
relationship with the International. However, Respondents
argue that Waddell was never so connected with or given
such authority by them as that her statements to him
amounted to legal notice to them of cancellation of her
membership. While it appears that Waddell was never an
official of the International, nor an elected or appointed
official or agent of the Local after it was chartered,
admissions of Waddell, Burton, and Hackett in the record
establish these facts: John Waddell was the employee who
first contacted the International, secured union cards from
an officer of it, and distributed and assisted in return of
most of them to the International after signature, in
accordance with written instructions from him. That
official never appeared at the plant or even in Macomb
during the early solicitation, but operated there only
through the two Waddells, Burton, and another worker.
When International Vice President Hackett took over the
drive late in 1964, his contacts were mainly by telephone
or mail with the Waddells and the other two workers;
while he spent 4 to 5 days a month from September 1964,
to the election on visits to Macomb, his contacts were still
confined to these solicitors and other "interested" but
unidentified employees; he never created a formal and
publicized organizing committee of workers, visited the
'Her remarks to Waddell and her later vote in the election indicate that
she was content to have the card used to get an election , so it is a fair
inference that if she was satisfied at the time that this was its only purpose,
she would not have asked to have it destroyed.
759
plant himself, or established any office or base in town in
that period. The record shows also that in this period
Matthews had no contact with anyone connected with the
campaign but John Waddell, who worked near her in the
same department and apparently was the sole union
solicitor therein: there is nothing to show that she knew
of the activities of brother Ben, or the other two identified
solicitors. When she signed the card for Waddell and
gave it to him, he told her he did not know when the next
union meeting would be held, but he would let her know,
which indicated she could rely on him for information
about the campaign. However, the record shows that no
formal or publicized meetings for workers were held by
the Unions until after certification of the International;
Burton and Hackett testified that, prior to that event,
Hackett would arrange occasional meetings by
telephoning "certain people" in town (mainly the
Waddells, Burton, and Young) asking them to pass the
time and place to workers by word of mouth; but it is also
clear from testimony of Matthews and admissions of John
Waddell that after she asked him to tear up the card, he
stayed away from her because he assumed she opposed the
International and its campaign, hence he never gave her
any notice of any union meetings thereafter, as he had
promised, although workers who signed cards received
such notices. After the certification and during the
extensive litigation up to June 1967, according to Local
President Burton, monthly union meetings were held, but
notice thereof was given by word of mouth, as before, but
never to Matthews by that method. It is thus clear that,
up to the formation of the Local and election of Loyd
Burton as its president, Matthews had good reason to
believe that John Waddell was the only person actively
representing Respondents for organizing purposes, at least
in her department, whom she could contact with regard to
withdrawal of her membership. I conclude that on all the
pertinent facts the International operated during the drive
and at least up to the formation of the Local, by and
through John Waddell, among others, in his relations with
employees under circumstances which would reasonably
lead them to believe that he was its representative at the
plant, and I find and conclude that at least up to the
formation of the Local, he was a de facto agent of the
International in Macomb and the plant for the organizing
drive, arranging union meetings, and other relations with
employees.' ° Hence, I consider and find that her request to
him to tear up her card was a sufficient and unequivocal
request to the International to withdraw her membership
application and cancel her membership, assuming that her
application had been in fact accepted.
I agree with Respondents that after she began to
receive the Potters Herald, and particularly after Loyd
Burton became president of the Local, Matthews had
various opportunities to make her withdrawal from
Respondents known to them in more formal ways: She
might have found the addresses of both Respondents in
one of the Heralds she received, and written a letter of
"Under the Act, the responsibility of the International for acts of its
members and officers is determined by the ordinary doctrines of, agency,
and the lack of specific authorization for or ratification of specific acts of
agents is not controlling. See Sec 2(13) of the Act , Hampton Merchants
Association , 151 NLRB 1307, 1308 , and International Brotherhood of
Teamsters, Local Union No 377, 159 NLRB 1313, 1314 I have
considered other cases cited by Respondents to show that actions of mere
employees in procurement of union cards do not thereby make them agents
of a union , but do not consider them as controlling here because they are
inapposite on the facts.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawal to either ; she might have written or talked
directly to Burton for the same purpose; and she might
have approached Vice President Hackett when he was
pointed out to her at the plant just before the election."
She offers two excuses for not doing so: First, she says
she felt after she signed the card that it was only
necessary to talk to John Waddell, the only solicitor to
approach her and secure her signature on the card; this
explanation is plausible because of his unique position as a
main solicitor and de facto agent of the International as
found above . She also indicates she assumed thereafter
that she was "out of the Unions, which is likewise
plausible because it is clear that no union member or
official thereafter gave her notices of meetings in any way,
or approached her about the Unions, or reminded her that
she had any obligation to pay union dues or other charges,
after the Local came into existence (even when she talked
to union members several times about her dislike of the
Unions), or even after the certification of the International
was upheld by the courts and it made a contract with the
Employer;" it is clear that this avoidance of her was
deliberate , in view of admissions of Waddell and Burton
indicating they early determined she was against the
Unions and that it would be futile to talk to her to get her
to change her mind about them, and that they knew
before the election who was for the Unions and who
against them ." That the Unions thus ruled her out as
union adherent as early as mid-1965 is all the more
apparent from their failure to admonish or try to
discipline her when she circulated antiunion petitions
openly before and after the strike, and also committed the
cardinal sin (in the eyes of Respondents ) of crossing the
picket line, although they still had her membership
application and later used it in a technical sense to try to
have her thrown out of her job. In view of these facts, I
think Matthews did all she was required to do in making
her initial request to Waddell to tear up her card, for any
later formal request directly to the Unions to send her
card back or tear it up probably would have been futile. I
conclude that she effectively terminated her membership
on July 24, 1964, and repeatedly reconfirmed that action
to the Unions by her later open antiunion conduct.
On all the above facts I conclude and find that
Matthews did as much as she was reasonably required to
do in the circumstances to withdraw from Respondents,
and that Respondents knew about and acquiesced in her
nonmember status from and after July 24, 1964."
However , since she voted without challenge in the Board
election of February 1965, Respondents accepted her as a
member of the appropriate bargaining unit from that time
forward, so that when it finally procured a contract in
1967 under which it was the statutory bargaining agent for
all employees in that unit , including Matthews , a definite
fiduciary relationship between Respondents and Matthews
was created , even though she was not a union member,
which required Respondents to give her timely notice of
her obligations under that contract as well as timely notice
and warning of their intent to enforce its union -security
provisions against her as permitted by the Act, before they
took action under those provisions to cause the Employer
to discharge her. N.L.R.B. v. Local 182, International
Brotherhood of Teamsters, etc., 401 F.2d 509 (C.A. 2),
enfg. 169 NLRB No. 164. The Act demands fair dealing
between a union and not only its members but those
nonmembers over whom it is given a comprehensive
power to require their membership or command their
discharge under a contract containing a lawful
union-security clause; it cannot treat either members or
nonmembers as adversaries for any purpose arising from
the operation of the contract. As the union certified as
bargaining agent is bound by law to represent all
employees in the unit , it thus becomes an agent in a basic
sense for all, with a duty of complete loyalty to the
interests of all. IUE, Frigidaire Local 801 v. N.L.R.B.,
307 F.2d 679, 683, 684 (C.A.D.C.), cert. denied 371 U.S.
936. Thus it follows that, by not giving Matthews, a
nonmember of Respondents , timely notice that she would
lose her job if she did not pay dues, and attempting
without such notice to cause her discharge for that reason,
Respondents violated Section 8(b)(2) and 8(b)(1)(A) of the
Act. See IUE, Local 801 v. N.L.R.B., supra, and Granite
City Steel Company, 169 NLRB No. 144.
The same conclusion is impelled if Matthews is
considered a continuing member of either organization, or
both, up to her discharge, for under the above authorities
the same fiduciary relationship, with the same obligation
upon Respondents of fair dealing and notice , existed a
fortiori. Hence, Respondents' sudden attempt to deprive
her of her job without prior notice that she must pay dues
to avoid discharge still violated the Act. See also
N.L.R.B. v. Hotel Employees, Local 568, 320 F.2d 254,
258 (C.A. 3).
Considering Respondents' long continued acceptance of
Matthews ' nonmember status , and failure even after it
secured a contract to persuade her to join them and pay
dues, its attempt without prior warning to cause her
discharge for alleged failure to pay dues or execute a
checkoff authorization card in their behalf , after her long
and patent display of disaffection , compels the conclusion
and finding that they were not interested in her dues but
tried to have her discharged only in retaliation for her
renunciation of and activities against the Unions, and
under the above authorities it is clear that such attempt
for reasons other than failure to pay or tender proper dues
and fees violated the Act."
"I find these facts from credible testimony of Waddell, Burton, and
Matthews and documentary proof
"It is significant that , in sharp contrast , the International Respondent,
through Local President Burton , did talk to two other card signers
(Bollinger and Rittenhouse) about their dues obligations and the
consequences of nonpayment of dues , when they asked about it in August
1967, after at least one of them had attended a union meeting . See findings
of Trial Examiner adopted by the Board in prior case, 171 NLRB No. 79.
Here , the deliberate silent treatment accorded Matthews by Burton, and
Waddell , and other union adherents from an earlier date warrants the
assumption that she would not have been given such advice, even if she had
attended a union meeting or talked to Burton about the time the contract
was signed.
"On this point I do not credit evasive testimony of Burton to the effect
that he assumed Matthews was "for" the Unions since she signed a card,
and never heard or knew that she had turned against the Unions
"The Board has held that employees may communicate their
resignations from a union in any feasible way, and that no particular form
or method is required, so long as they clearly indicate to it that they no
longer wish to remain members of it. (International Union, UA W (John I.
Paulding, Inc), 130 NLRB 1035, 1043, enfd . 297 F.2d 272 (C.A. 1)), and
that employees are not required to engage in futile actions, such as
tendering formal resignations, where actions of the union indicate that it
would be rejected or avoided. See Oil, Chemical and Atomic Workers
International Union (United Nuclear Corporation), 148 NLRB 629, 637,
modified on other points 340 F.2d 133 (C.A 1).
"In making the above findings and conclusions , I have considered, along
with the record before me , some facts found by the Board in its Decision
in the earlier case , 171 NLRB No. 79, but I have not considered or made
findings on any of the testimony of witnesses in the prior case, since the
proofs therein were not stipulated by the parties as testimony to be
considered herein.
LOCAL 340, POTTERS 761
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section II,
above, occurring in connection with the Employer's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Conclusions
1. Respondents are labor organizations within the
meaning of Section 2(5) of the Act and the Employer is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. By trying to cause the Employer to discriminate
against Dorothy Matthews in violation of Section 8(a)(3)
of the Act, Respondents have engaged in and are engaging
in unfair labor practices affecting commerce within the
meaning of Sections 8(b)(2) and (1)(A) and 2(6) and (7) of
the Act.
The Remedy
Having found that Respondents engaged in unfair labor
practices violating Section 8(b)(2) and (1)(A) of the Act, I
shall recommend that they cease and desist therefrom and
take certain affirmative action which I deem necessary to
remove the effects of the violation and effectuate the
policies of the Act. As this is the second case in which
Respondents have taken the same type of illegal action
against employees of the Employer (see 171 NLRB No.
79), and it appears there may be a large group of
employees (up to 90 in 1965) who, like Matthews, may
have indicated their disaffection from the Unions as early
as 1965, I shall recommend that the Respondents cease
and desist from causing or attempting to cause the
Employer to discriminate against any employee for
nonpayment of dues, including but not limited to any
employee who may have revoked his or her application for
membership, or terminated membership, in Respondents
before June 13, 1967.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law , and the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby recommend
that Local 340, International Brotherhood of Operative
Potters, AFL-CIO, and International Brotherhood of
Operative Potters, AFL-CIO, and their respective officers,
agents, and representatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Macomb Pottery
Company to discriminate against Dorothy Matthews or
any other employee, for nonpayment of dues, including
but not limited to any employee who may have revoked
his or her application for membership, or terminated
actual membership, in Respondents before June 13, 1967,
in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees of Macomb Pottery Company in the
exercise of their rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment in accordance with Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Notify Dorothy Matthews and Macomb Pottery
Company, in writing, that they withdraw any objection to
the continued employment of Dorothy Matthews by said
Employer.
(b) Post at their offices in Macomb, Illinois; Tennessee,
Illinois; East Liverpool, Ohio; and Trenton, New Jersey,16
and on any bulletin boards provided for the use of
Respondents in plants of the Employer, copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms furnished by the Regional Director for
Subregion 38, after being duly signed by representatives of
Respondents, shall be posted immediately upon receipt
thereof, and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members as well as notices to employees
of the Employer are customarily posted. Reasonable steps
shall be taken by Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Deliver to The Regional Director for Subregion 38,
signed copies of said notice in sufficient numbers to be
posted by Macomb Pottery Company if the Employer is
willing.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.18
"The record does not clearly show whether Local 340 has an office now
in Macomb, Illinois, but the above addresses for Respondents and their
officials involved in this case appear in the September 26, 1968, issue of
the Potters Herald , in evidence.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 clays from the date of this Order, what steps
Respondents have taken to comply herewith."
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES OF MACOMB POTTERY
COMPANY AND ALL MEMBERS OF LOCAL 340,
INTERNATIONAL BROTHERHOOD OF OPERATIVE
POTTERS, AFL-CIO, AND OF INTERNATIONAL
BROTHERHOOD OF OPERATIVE POTTERS, AFL-CIO:
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Macomb
Pottery Company to discriminate against Dorothy
Matthews or any other employee for nonpayment of
dues, including but not limited to any employee who
may have revoked his or her application for
membership , or terminated actual membership, in
Respondents before June 13, 1967, in violation of
Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain
or coerce employees of Macomb Pottery Company in
the exercise of their rights guaranteed in Section 7 of
the Act , except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment in
accordance with Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL notify Dorothy Matthews and Macomb
Pottery Company, in writing , that we withdraw any
objection to the continued employment of Dorothy
Matthews by said Employer.
LOCAL 340,
INTERNATIONAL
BROTHERHOOD OF
OPERATIVE POTTERS,
AFL-CIO, AND
INTERNATIONAL
BROTHERHOOD OF
OPERATIVE POTTERS,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If members and employees have any question
concerning this notice or compliance with its provisions,
they may communicate directly with the Board's
Subregional Office, Fourth Floor, Citizens Building, 225
Main Street, Peoria , Illinois 61602 , Telephone
309-673-9282.