Luggage Workers Union Local 60, Etc.

National Labor Relations Board - Board Decisions

Aug 21, 1964

148 N.L.R.B. 396 (N.L.R.B. 1964)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for Region 20, in writing , within 20 days from
the date of the receipt of this Trial Examiner 's Decision , what steps the Respondent
has taken to comply herewith.6
It is further recommended that, unless on or before 20 days from the date of its.
receipt of this Trial Examiner 's Decision , Respondent notifies the Regional Director
that it will comply with the foregoing Recommended Order, the National Labor
Relations Board issue an order requiring the Respondent to take the action aforesaid.
6In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
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 Rela-
tion Act, we hereby notify our employees that:
WE WILL NOT threaten our employees with closing the market , criminal
prosecutions , or withholding promotion in the event of a successful union
organizational drive in our market , or in any other like or related manner inter-
fere with their rights guaranteed by Section 7 of the National Labor Relations
Act, as amended.
JAMES ' A. MEAD AND ROGER MEAD , CO-PARTNERS
D/B/A MEAD 'S MARKET,
Employer..
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. ,
Employees may communicate directly with the Board 's Regional Office, 830 Market
Street , San Francisco , California, Telephone No. 556-6721 , if they have any question
concerning this notice or compliance with its provisions.
Luggage Workers Union Local 60, International Leather Goods,
Plastic and Novelty Workers Union , AFL-CIO (also known
as The Suitcase , Bag and Portfolio Makers Union ) and Ed-
ward Ledesma and Rexbilt Leather Goods, Inc.; The Luggage
and Leather Goods Manufacturers Association of New York,
Inc., Parties in Interest . Case No. 2-CB-3756. August 21, 1964
DECISION AND ORDER
On February 28, 1964, Trial Examiner Alba B. Martin issued his
Decision in the above-entitled proceeding, finding that Respondent had
not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Decision. Thereafter, the General Counsel
filed exceptions to the Decision and a supporting brief, and Respondent
filed a brief in support of the Trial Examiner's Decision and cross-
exceptions. The General Counsel then filed an answering brief to the
cross-exceptions.
148 NLRB No. 45.
LUGGAGE WORKERS UNION LOCAL 60, ETC. 397
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error has been committed.
The rulings are hereby affirmed. The Board has considered the De-
cision, the exceptions, the cross-exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
LL In dismissing the allegations herein, the Trial Examiner categorized the Union ' s service
charge as exorbitant and recommended that it be eliminated . As neither the reasonable-
ness nor the necessity for the service charge was in issue , we do not adopt his character-
ization of its reasonableness or his recommendation that it be eliminated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties ' represented , was heard before Trial Examiner
Alba B. Martin in New York, New York, on September 16 through 18 and 23 through
27, 1963, on complaint 2 of the General Counsel and answer of Luggage Workers
Union Local 60, International Leather Goods, Plastic and Novelty Workers Union,
AFL-CIO (also known as The Suitcase, Bag and Portfolio Makers Union), Respond-
ent herein , sometimes called Respondent Union and Respondent Local. As formed
by the pleadings the issues litigated were whether in 1963 the Respondent violated
Section 8 (b)(1) (A) and Section 8(b)(2) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151 et seq., herein called the Act, by "requiring" em-
ployees and former employees to pay a $1 or $2 fee or service charge and back
dues,3 and in the case of one employer , Rexbilt, arranging for the employer to check
off said fee or service charge, as a condition to the distribution to the employees by
the Union of their vacation checks. At the hearing the General Counsel and the
Respondent presented oral argument, and after the hearing each filed a brief which
has been carefully considered.
Upon the entire record and my observation of the witnesses , I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF REXBILT
Rexbilt Leather Goods, Inc., herein called Rexbilt , a New York corporation with
its principal office, place of business , and plant in New York, New York, has been
at all times material herein , and now is, engaged in the manufacture , sale, and
distribution of leather goods and related products . During the calendar year 1962,
a representative period, Rexbilt purchased directly from firms outside the State of
New York goods valued at over $50 ,000, and during the same period Rexbilt sold to
firms outside the State of New York goods valued at over $50,000 which Rexbilt
i The impartial chairman of the industry and also administrator of the vacation fund,
Herman A Gray , was also named as a Party In Interest . At his request made at the
hearing, and as no wrongdoing on his part was either alleged or proven, his name is
hereby stricken from the caption of the case
5Edward Ledesma , an individual ,- filed the original charge June 10, 1963, and a copy
was served upon Respondent June 12, 1963 . Ledesma filed the amended charge on Sep-
tember 4 , 1963 , and a copy thereof was served upon Respondent the same day.
I During the hearing the Board' Itself granted the General Counsel's motion to amend
the complaint by adding back dues . To this action Respondent took vigorous exception
and moved to dismiss the complaint for lack of due process . As I am recommending dis-
missal of the complaint on the merits I do not herein pass upon Respondent 's motion,
upon which I reserved decision at the end of the hearing.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shipped from its plant directly to the out- of-State firms . Respondent did not deny,
and I find, that Rexbilt is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and the Board has jurisdiction over this matter.
H. THE LABOR ORGANIZATION INVOLVED
Luggage Workers Union Local 60, International Leather Goods, Plastic and
Novelty Workers Union, AFL-CIO (also known as the Suitcase, Bag and Portfolio
Makers Union), Respondent herein, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The setting
For at least 20 years the collective-bargaining agreements between Respondent
Union and certain employers in the luggage-making industry in New York City
have provided for a vacation fund contributed by employers and administered by the
impartial chairman of the industry. During all of this time the impartial chairman,
who has always been the same person, Herman A. Gray, has always distributed the
vacation benefits through the Union.4 According to the uncontradicted testimony of
Dr. Gray, a very credible witness, he distributes the vacation checks through the Union
because this gives the Union an opportunity to police the contributions to the fund
of the various employers, because the Union knows the employees and gets the checks
into the correct hands of the named payees, and because this keeps the cost of
distribution down. Dr. Gray testified that he could not hire anybody who would know
the identity of the several thousands of employees who receive the checks, and in
any case he would not want that many people coming to his office to pick up the
checks.
Under the current contract, during the year ending July 31, 1963, some 59 em-
ployers, including some 29 who are members of the Association named in the caption
above as a Party in Interest, paid to the impartial chairman for the vacation fund an
amount a little under $108,000, which represented 2 percent of the employees' earn-
ings. The impartial chairman disbursed all of this amount by issuing some 2,405
checks to employees and turning them over to the Union for distribution. In 1963 the
checks were turned over to the Union, as was the annual custom, in batches as
they were ready, beginning about the middle of June, and the Union called in the
respective shop chairmen (shop stewards) to pick up their batches and distribute them
to the employees. The aim was to get the checks to the employees prior to their
vacations, which occurred in most shops in July or August. If during the benefit
year a given employee worked in more than one shop, he would receive a check for
each shop he worked in during that year
For administering the fund the impartial chairman was paid $2,400 a year, half
contributed by the Union, half by the employers.
Dr. Gray credibly testified that he has had a number of specific complaints from
the Union alleging an insufficient employer contribution to the vacation fund for
specific employees. He also credibly testified that in neither of his capacities, as
administrator of the vacation fund or as impartial chairman of the industry (under the
current contract Gary's decision is final on all shop complaints and grievances and
all disputes under the contract), has he ever received or heard of a complaint that
an employee failed to receive a vacation check intended for him or failed to receive it
except upon payment of a sum of money to the Union. I conclude that if there were
any complaints they were not taken through the grievance procedure and to arbitra-
tion under the contract.
Each year for many years, since at least 1946, the Union has tried to collect an
annual fee of $1 or $2, called a "vacation service charge," from each employee,
depending upon the latter's weekly wages. According to the credited testimony
of Harry Frankel, longtime official of the Union whose current title is manager of
Respondent Union, and who was a very informed, forthright, honest, and credible
witness, this vacation service charge has been approved by the executive board and
the membership of Respondent Union each year since 1952. The minutes of 1961
are in the record, showing that the executive board on April 30, 1963. recommended
collecting the charge and that the membership meeting of May 23, 1963, approved
4 Under the contract the employees receive additional vacation benefits directly from
their employers , but those benefits are not Involved herein.
LUGGAGE WORKERS UNION LOCAL 60, ETC. 399
the recommendation. Early in May 1963, Frankel sent out to each shop chairman and
assistant shop chairman-about 65 chairmen and 10 assistants-a letter saying in
pertinent part:
This is to advise you that the cost for the collections and distribution of the
2% Vacation Fund administered by Herman A. Gray, must be collected from the
workers of the shop during the months of May and June.
The costs are as follows:
1) Those earning $48.00 or less per week, must pay $1.00.
2) Those earning more than $48.00 per week, must pay $2.00.
In 1963 the Union collected vacation service charges in the amount of $3,108.5
It paid $1,200 to Impartial Chairman Gray as its contribution for his services in
administering the vacation fund. This left $1,908 to defray union costs in being
responsible for and distributing the vacation checks. In 1963 the shop chairmen
returned to the union office about 100 checks of employees to whom they failed to
make delivery because the employee was off ill, was laid off, had moved to another
shop, or had left the industry. The Union carried on from there and tried to make
delivery. In 1963 some 300 checks were handed to employees in the union office.
In 1963 the Union mailed out between 200 and 250 cards telling people to come
in and pick up their checks. The Union did not mail out any checks as a precau-
tionary measure, so that they would not fall into the wrong hands. It appears
from the evidence that people drifted in for months to pick up their checks, and
that the Union retains indefinitely the checks of some payees who cannot be found
or who never came in to claim their checks.
Although the Union's protection of and distribution of the vacation checks was a
valuable service performed for the payees of the checks, the amount of the serv-
ice charge seems to me far in excess of the value of the service rendered. Al-
though I find herein that the Union did not in 1963 violate the Act, I recommend
that the Union either eliminate or greatly reduce the amount of the service charge.
B. The collection of the vacation service charge and back dues in 1963 6
In substance the General Counsel contended that in words and in fact in the
spring and summer of 1963 the Union conditioned delivery of the vacation checks
to the employees upon the payment to the Union by the employees of the vacation
service charge and any back dues owing. In support of this contention the Gen-
eral Counsel offered the checkoff of the service charge by Rexbilt, several in-
cidents in 1963, and a theory that an alleged policy, system, or practice of coercion
in prior years was not corrected by the Union in 1963 and that this proves a viola-
tion in 1963.
During the hearing several witnesses undertook to relate what the union "rules"
were about collecting the vacation service charge. As on this subject Manager
Frankel was the most experienced, best informed, most articulate, most credible,
of all the witnesses, I credit his testimony.
1. The events involving Rexbilt employees in 1963
In June 1963, at the request of Manager Frankel of Respondent Union, Rexbilt
Leather Goods, Inc., checked off the vacation service charge from the wages of
Rexbilt employees. It was a union-shop contract and Rexbilt regularly checked
off union dues owed by employees. As a practical matter the only back dues
usually owing by Rexbilt employees were those that were not checked off because
the week of the checkoff the employee was temporarily absent because of layoff,
illness, etc. But in the spring of 1963 many employees of- Rexbilt still owed
the Union dues for August 1962 because during the checkoff week in Au-
gust 1962 they had been on strike; thereafter the employer refused to check off
the dues for that month, and until April the Union considered the time unpro-
pitious for trying to collect it .7
6 The figure on line 1, page 678 of the transcript is hereby corrected to read "$33-08 "
'The phrase "in 1963" throughout this Decision refers to the "10(b) -period," the
period of time beginning 6 months prior to the filing of the charge, the events which are
not time-barred and upon which unfair labor practice findings may legally rest.
7 Manager Frankel credibly testified that after the strike the employees were "broke,"
their employer put them on a 4-day week, about 50 employees were laid off in December
and not returned to work until February or March , and not until the- middle of March
was most of the shop put on a full -time basis.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whether the checkoff of the vacation service charge in 1963 was a violation of
the Act is considered below.
2. Alleged pressure on Rexbilt employees in 1963
The charges upon which this complaint and proceeding are based were filed by
Edward Ledesma, a Rexbilt employee and the leader of an opposition group which
developed within the Respondent Local. In the union election of Novem-
ber 1962, he was a defeated candidate for recording secretary. After his defeat
he informed Manager Frankel he no longer wished to serve as shop chairman at
Rexbilt (a union position he had filled for several years) but in 1963 until at least
the hearing herein in September, he continued, at Frankel's request, to serve as
acting chairman.
Ledesma testified in substance that in 1963 no representatives of the Respondent
put any pressure on him to pay his back dues (he owed dues for November 1962,
and possibly also for August 1962), or the vacation service charge,8 and that he
himself put no pressure on any employees to pay back dues or the vacation service
charge. Early in May be ripped up the Union's May 1 letter, quoted above, in
the presence of a union organizer and told the latter to tell Frankel that Ledesma
was not going to collect the service charge and that "we are not going to pay"
it. Ledesma testified that the "we" referred to were himself and about 60 of his
fellow workers. Ledesma testified in substance that he filed the charge herein
as a preventive measure, to prevent the Union from coercing him in 1963. As
Ledesma and the opposition group, including Eladio Reyes, were in rebellion against
the Union, it is a fair conclusion that Reyes as well as Ledesma put no pressure
on the Rexbilt employees to pay the service charge and back dues in 1963.
Eladio Reyes was assistant shop chairman at Rexbilt and in this capacity sub-
ordinate to Shop Chairman Ledesma. According to the credited testimony of
Manager Frankel, Reyes was a member of the opposition group. Reyes was a
confused and unreliable witness.
In the spring of 1963 Reyes received from the Union in an envelope (so presuma-
bly by mail) an arrears list.9 In testifying Reyes was thoroughly confused as to
what, if anything, came in- the envelope with the arrears list. At first he testified
in substance that the Union's May 1 letter, quoted in pertinent part above, was
what came in the envelope. Then he said that the May 1 letter he received sepa-
rately, and that it was a separate letter talking about paying up back dues which
he received with the arrears list. Then he testified he received the letter about back
dues in the same envelope with the May 1 letter and that the arrears list came
along with no letter enclosed. Thus on this matter his testimony went an uncon-
vincing full circle and demonstrated his great unreliability as a witness. In fact,
according to the credited testimony of Manager Frankel, the Union sent Reyes no
letter at all concerning the collection of dues.
To be noted further is that no other witness in the case referred to a letter from
the Union about the collection of back dues. Out of his imagination rather than
from fact Reyes testified that the fictional letter said "I should go and collect the
back dues to these people or notify them the amount of money they owe to the
Local and go there and pay the office." Of significance is the fact that he did not
quote the fictional letter as referring to the vacation or the vacation checks. Seven
pages later in the transcript (page 605) Reyes cited this same letter "where they
specify about vacation close and we should attend there and pay the back dues and
the money we owe before vacation come." This time he brought the vacation into
the letter. Next time, three pages later, the vacation check suddenly entered the
letter: "about the money they supposed to pay back pay [sic] dues and about the
vacation and the money everyone should have to pay to receive the check."
Reyes' testimony concerning his alleged attempts to collect back dues and the
service charge in 1963 appeared patterned after his quotation from the fictional
letter; each version he gave added a little. At first, "I asked the people about the
money they supposed to pay for the backpay dues and I show the letter about the
vacation" (evidently the Union's May 1 letter). The following morning, still on
direct examination, he testified he showed the employees the two letters he had
received and the arrears list. This was erroneous because he received only one
letter and the arrears list. Asked what he told the ,people' he replied he told them
"the meaning of the backpay dues and that we are supposed to pay for the service."
8 Ledesma testified that Vi Alston, the office girl at the union office, told him he 'eould
pay if he wanted to, but he did not,liave to pay. ' . '
9 Line 19, page 636 of the transcript is hereby corrected' to rend, "I will receive
G.C. 19."
LUGGAGE WORKERS UNION LOCAL 60, ETC. 401
Next time he went all out: "I told them this is the letter (only one letter, and nothing
about the arrears list) I have received. To be prepared for the vacation, you have
to go and pay the back dues and service charge before you receive the vacation
check." None of the employees paid him any back dues or service charge. Hav-
ing allegedly spoken to Ledesma he then allegedly told the employees that "if they
don't pay the back dues and the service charge, they must appear in person in the
union office and straighten out everything with them."
Because of his imaginative shifting of facts from time to time while appearing
on the witness stand as very sure of his facts, and because at no time during his
testimony did he appear aware that he was shifting the facts, Reyes impressed me
as a very untrustworthy witness. In addition it is doubtful if Ledesma suggested
that Reyes send the employees to the union office. Ledesma himself, the leader of
the opposition, took no steps in 1963 to assist the Union to collect back dues or the
service charge; he wished to put a stop to the collection of the service charge.
He himself did not in 1963 send employees to the Union to settle up. It is im-
probable, therefore, that he would suggest that Reyes, a member of the opposition,
send the employees to the Union to pay up; or that Reyes would thusly act contrary
to Ledesma's program. In addition I credit the testimony of John Goyco, who
by his demeanor impressed me as a forthright and credible witness, in his denial of
certain testimony of Reyes relating to this matter.
Manager Frankel testified that in 1963 he instructed his office staff, organizers,
and shop chairmen (he referred to Reyes as a chairman and also as an assistant
shop chairman), to give out all checks, to hold none back for nonpay-
ment of back dues or the vacation service charge. This testimony was corroborated
by Jacqueline O'Neill. Frankel testified that union policy and practice was to
deliver all checks to the workers. To be noted in this connection is that the vaca-
tion checks were distributed in 1963 a few weeks after the charge herein had been
filed and served upon Respondent, which would have served as a warning to Re-
spondent not to engage in the complained-of conduct. Further, Frankel credibly
testified that his local was advised by the executive board of the International
Union in June 1963 that some other local had engaged in conduct somewhat similar
to the alleged conduct complained of herein and that all locals should avoid any
such conduct. This also would have tended to caution Respondent Local.'° To
be noted further is that Reyes received his vacation check in 1963 at a time when
he owed 2 months' back dues and Ledesma received his when he owed 1 or 2 months'
back dues. To be noted further is that in 1963 some 38 other Rexbilt employees
received their vacation checks at a time when they owed back dues; 22 owed back
dues for August 1962 only, and 16 owed from 1 to 4 months' back dues. Frankel
credibly testified that Respondent Union has not suspended anybody for nonpay-
ment of dues, that it is not and never has been union policy or practice to condi-
tion delivery of the checks upon receipt of the service charge, and that no check
has ever been returned to the Union by a shop chairman because an employee refused
to pay the service charge.
As Reyes was not a credible witness, and upon the above facts and conclusions,
and the entire record in the case considered as a whole, I do not credit Reyes' testi-
mony concerning alleged coercion in 1963. Thus, I hold that the Union did not in
1963 violate the Act through any activities of Ledesma and Reyes toward Rexbilt
employees.
The Anastasio incident.11 In June 1963, Rexbilt employee Salvatore Anastasio
went to the union office to pick up his own and his wife's vacation checks. He
testified with considerable uncertainty as to the incident. Unconvincingly he
testified that on this occasion an office girl and Manager Frankel each told him
that he could not have his wife's check unless he paid her $2 vacation service charge.
(His had already been checked off. Hers had not been because she was off the
payroll.) On cross-examination he was not certain whether anything was said
iu Because of these two warnings , in 1963 Frankel discontinued past practice of hold-
ing in the union office the vacation checks of those delinquent in dues more than 2 months.
Frankel admitted that prior to 1963 these were used as bait to lure these delinquent em-
ployees to the union office so as to give the Union an opportunity to try to collect the
back dues while the employees were in funds , but he denied withholding any checks of
those who did not pay up.
"When General Counsel's Exhibits Nos. 3 ( a) and 3 ( b) were first offered in evidence,
Respondent objected to their receipt . At page 735 of the transcript Respondent withdrew
his objection and the transcript shows them received . At page 1084 I stated I would pass
upon their admissibility in my decision . To avoid any question I hereby receive them.
760-577-65-vol. 148-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except that he would have to pay; that is, he was not certain about the "unless"
clause just above. Acknowledging some doubt on the witness stand, he finally
expressed some certainty that the office girl involved was Vi Alston. Vi Alston was
not called to testify. Jacqueline O'Neill, the other office girl at the union office, and
a very forthright, positive, strong, and credible witness, testified that it was she who
talked to Anastasio on this occasion, that Vi Alston was not then present, and that
she did not condition the handing over of Mrs. Anastasio's vacation check upon
Anastasio's paying over the $2 service charge. Frankel also credibly denied
Anastasio's testimony on this ,point.
Anastasio testified that on this occasion the office girl handed him the two checks
His pretrial affidavit stated that Frankel handed him his wife's check. O'Neill credibly
testified, corroborated in part by Frankel, that at that time the checks had not vet
arrived, and that when they did she mailed the two checks to Anastasio.
On direct examination at first Anastasio testified that because of illness his wife
ceased work in June 1962. Then, immediately, having been shown a payroll, he testi-
fied this happened in January 1963.
Because of the above and other self-contradictions, inconsistencies, and uncer-
tainties in his testimony, and as he was refuted by strong and credible witnesses,
Anastasio did not impress me as a credible witness. In consequence I find that on
the occasion in the union office in late June 1963, no union representative, including
O'Neill and Frankel, threatened Anastasio that he had to pay the $2 for his wife
before he could get her 1963 vacation check. I find that he paid the $2 without
protest. Thus on this occasion the Union did not violate the Act.
The Ortiz incident in 1963. The record contains much testimony concerning Rex-
bilt employee Ortiz-Velasquez in 1962. Of probative significance during the "10(b)
period" is Ortiz' undenied uncontradicted testimony that when he went to the union
office in 1963 to pick up his 1963 vacation check, someone there asked him if he
was going to pay his back dues (he owed for August 1962) Ortiz said, "Not now "
Nothing was said about a portion of a reinstatement fee he owed the Union. He
was given his check and no pressure of any kind was put on him.
Upon the above findings and conclusions and the entire record considered as a
whole, I find that Respondent did not, with respect to Rexbilt employees or former
employees, as alleged by the General Counsel, in 1963 condition delivery of the
vacation checks upon payment of the vacation service charge, and did not violate
the Act.
3. The checkoff of the vacation service charge by Rexbilt in 1963 at the request
of the Union
Shortly after May 1, 1963, on the same day he received the Union's May I letter
quoted above, Acting Shop Chairman Ledesma tore up the letter in the presence
of Union Organizer Juan Goyco and told him, as has been seen above, that Ledesma
was not going to collect the service charge and that "we are not going to pay it."
There was a discussion as to who the "we" were. Shortly thereafter Goyco reported
this conversation to Manager Frankel. The record does, not reveal any conversation
between Goyco and Frankel as to whom Ledesma was referring, other than to him-
self, but knowing that Ledesma and Assistant Shop Chairman Reyes were active op-
positionists, Frankel must have known that Ledesma was referring to a number of
Rexbilt employees. As neither Ledesma nor Reyes brought any vacation service
charge collections into the Union's office thereafter, this fact must have come to
Frankel's attention. Sometime in May, according to Frankel's undenied and credited
testimony, Philip Trachtenberg, the other assistant shop chairman at Rexbilt and an
"old man," came to the union office,'told Frankel he was not well enough to go
around the shop and collect the vacation service charge, and asked Frankel to have
Rexbilt check it off as it had in some prior years. Rexbilt had checked off this charge
in 1957, 1958. 1959, and 1960, but not in 1961 and 1962. •
In May, prior to the filing of the original charge, Frankel asked Rexbilt's president
to arrange for the checkoff of the service charge and the latter agreed to do so
Rexbilt regularly checked off dues. Rexbilt made the checkoff on June 12 (from
the payroll week ending June 8) and sent it to the Union by check dated June 12
The original charge, filed. June 10 and served June 12, was not actually received
by the.Union until June 13. A few days later Ledesma protested the checkoff of his
service charge to Manager Frankel, who said that the Union's executive board had ap-
proved of requesting the checkoff. Although during 1963 Ledesma had made a
formal complaint, about something,to the executive board, he did not do so about
this, checkoff;, and he,did not file a grievance under the grievance procedure;
LUGGAGE WORKERS UNION LOCAL 60, ETC. 403
Then in effect and honored by Rexbilt were checkoff cards authorizing the Com-
pany to deduct from the employees' wages and turn over to the union membership
dues and initiation fees of employees. These cards provided further:
This authorization shall become effective as of the date hereof and shall be
irrevocable for 1 year, or until the termination of the applicable collective
agreement, whichever occurs sooner.
The cards contained an automatic renewal clause, and provided that the authorization
was irrevocable except upon written notice given by the employee to his employer
and to the Union.
Insofar as the record reveals, no Rexbilt employee, in writing, revoked his checkoff
authorization in 1963, either before or after the checkoff of the service charge.
The General Counsel alleged and contended that the service charge was an
assessment and that the Union's causing Rexbilt to check off this assessment was un-
lawful because all assessment was exacted from employee as a condition of their
receiving the vacation checks. As has been found above, the record contained
no credible evidence that the assessment was in fact exacted from employees as a
condition of their receiving the vacation checks. Here payment of the assessment was
not under the compulsion of discharge or under any other compulsion; not even
the compulsion of nonreceipt of the vacation checks or the lesser compulsion of hav-
ing to go to the Union's office to pay the assessment. Thus this case is not governed by
Food Fair Store, Inc., 131 NLRB 756, where strong coercion, the threat of discharge
for nonpayment of the assessment, was very much present.
As no coercion has been found to be present or imputed, the fact that the Union
caused the checkoff of an assessment under the authorizations which provided only for
checkoff of dues and initiation fees does not alter the finding herein of no violation.
As the Board has pointed out (Wm. Wolf Bakery, Inc., 122 NLRB 630), under the
interpretation of the Department of Justice, which is charged with responsibility for
enforcing Section 302 of the Act, a checkoff authorization may lawfully cover assess-
ments as well as initiation fees and dues. To be noted further is that the authoriza-
tions conformed to the provisions of Section 302 in that they were not irrevocable for
a period of more than 1 year, or beyond the termination date of the applicable collec-
tive agreement, whichever occurred sooner. Further, as the service charge was not a
condition of membership, and was collected from all who were eligible to receive va-
cation checks, members and nonmembers, the checkoffs did not reasonably encourage
or discourage union membership or activity: In any case the complaint alleged a
violation because of coercion, because the assessment was exacted as a condition
of receiving the vacation checks. and that case, which was the litigated case, fell for
want of proof of coercion; the complaint did not allege the checkoff was a violation
in the absence of coercion, and that question is not before me or the Board. Under
these circumstances, in the absence, as here,•of coercion, there was no violation of
Section 8(b) (2) or 8(b) (1) (A) of the Act, although the employees may have rights
at law against the Company and the Union for the authorized taking of employee
money.
4. The events at Monarch Luggage in 1963
The record contains the testimony of -six employees of Monarch Luggage Co
Inc , four called by the General Counsel, two by Respondent. These witnesses
testified, even the General Counsel's, in substance that no pressure was applied
by Shop Chairman Julio-Grau in 1963 in an effort to collect back dues from Monarch
employees. Grau himself testified that he did not in 1963 tell any employees
they would have to pay back dues before they would receive their vacation checks.
As the reason for this, he stated that the Union had not instructed him to collect
back dues.
Concerning the collection of the vacation service charge; in 1963 by Shop Chair-
man Grau, the record establishes that at the time some 18 named Monarch employees
-cashed their vacation checks in 1963, they had not paid their vacation service
charge.12 In addition, at•the time he testified herein in September, Grau himself
had long since received his vacation check but had not yet 'paid his service charge.
Grau testified further that in 1963 he handed out some 10 to 15 vacation checks
to Monarch employees who had not paid their service charge, knowing. that they
.12Of"these, 10 paid their service charge shortly before September 9, 1963, nearly 2
months after they received their checks.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not paid... Asked if he thereby violated the union "rules" he replied, "Well,
they promised me they are going to pay it afterwards and at the moment if they don't
have the money, I can't refuse to give them the checks." 13
Grau credibly testified that when he was attempting to collect the vacation serv-
ice charge in 1963 none of the employees refused to pay him or objected to paying
him.
The above testimony tends to confirm the testimony of Manager Frankel that
no checks were withheld from employees because they failed to pay the service
charge.
Employees Mirrero, Frank Rosenberg, and Greisman testified in substance that
in trying to collect the service charge from them Grau alluded to no consequence
if they did not pay up.
According to the credited testimony of Manager Frankel, in 1963 there was an
increase from 100 members to 250 members at the Monarch shop, and Grau re-
quested the Union to furnish him, from the Unions' ledger cards, with a list of the
employees to help him in collecting the vacation service charge. Grau testified in
substance that he had the list with him when he was trying to collect from the
employees. It appears that Grau had no assistance in his task. Grau credibly
testified in substance that many of the employees knew about the service charge
and paid him (presumably seeing the list with "$2" after most of their names)
without comment by him or them. To those who, seeing him with the list, came up
and asked him what it meant, he "would explain to them that this is the list to collect
$2 for the Union, for vacation money."
When Grau asked employee Jose Tirado to pay his $2 vacation service charge,
Tirado refused to pay then and said he would pay later when he got the check.
Several weeks later (Frankel credibly testified it was July 11), when Grau received
the vacation checks from the Union he handed Tirado's check to Tirado. Accord-
ing to the credited testimony of Grau, when he first approached Tirado to collect
the vacation service charge he simply told him, "I am here to collect the money,"
and nothing more.14 Grau was a General Counsel's witness. The General Counsel
later called Tirado as a witness, and he contradicted Grau in the above matter,
saying that Grau told him that if Tirado did not give them the $2, Tirado would have
to go to the union office and pay it. Tirado was a confused, self-contradictory, al-
most illiterate (as the General Counsel suggested) witness, and by his demeanor
did not impress me as a credible one. He was a very weak witness upon which
to rest an unfair labor practice finding. Unable to relate in one coherent state-
ment the simple events of his receiving the vacation check and paying Grau the
service charge, he was given many piecemeal questions. He testified that Grau had
the checks when Grau first approached him for the vacation service charge, which
is contrary to all other evidence: Grau made the collection in May and passed out
the checks in July. Tirado testified that Grau gave him his vacation check a week
before he paid Grau the $2; and, contrariwise, that he had to pay the $2 because
if he had not paid it he would have had to go to the Union to get the check. As
Tirado was a completely incredible witness, I do not credit any of his version con-
cerning his payment of the charge and receipt of the check in 1963.
The wife of employee William Inigo, a Monarch employee, worked at an-
other company, Daisy Products . In 1963 Inigo picked up at the union office his
wife's vacation check at a time when her vacation service charge had not been paid.
Frank Rosenberg, a Monarch employee and a credible witness, credibly testified
that this is his third year of service as a member of Respondent Union's executive
board, that he attended an executive board meeting in 1963 at which the vacation
service charge was discussed, that he has never heard any discussion to the effect
that it is union policy that those who do not pay their service charge are not to
receive their vacation checks.
Monarch employee Israel Greisman, a member of the Union for 17 years, credibly
testified that he has been paying the $1, $2 vacation service charge every year dur-
ing that time, and that during that entire time no one has ever told him that if he
does not pay the service charge he will not get his vacation check.
1$ Manager Frankel credibly testified it is not union policy that vacation checks be
withheld unless employees at least promise to pay the service charge.
14Assisted by leading questions Grau undertook to state his understanding of the
Union's "rules." On this subject I credit Frankel, who was much more informed, more
credible, and much more articulate.
' LUGGAGE WORKERS UNION LOCAL 60, ETC. 405
Upon the above facts and considerations, and upon the entire record consid-
ered as a whole, I find and hold with respect to the events at Monarch in 1963 that
Respondent Union did not, as alleged by the General Counsel, condition delivery
of the vacation checks upon payment of the vacation service charge and back dues,
and did not violate the Act.
C. The "background" evidence
A great deal of time in this long hearing was consumed with "background" evi-
dence, which the General Counsel introduced allegedly to cast light upon, clarify
the reason for, impart meaning to, and assist in the evaluation of, events which
allegedly occurred within the "10(b) period." As has been seen above, the credi-
ble testimony established that no events occurred in the collection of the 1963 vaca-
tion service charge in May and June and later in 1963 (the postlimitation period
began December 13, 1962) which needed light, clarification, or explanation from
earlier events. The credible testimony proved that the Union did not violate the
Act in 1963, the "10(b) period," and no amount of "background" testimony can
convert the nonviolation into a violation. Any such conversion would involve giv-
ing independent and controlling weight to the "background" evidence, which the
Board does not permit under its News Printing Co doctrine (116 NLRB 210).
The General Counsel contended that the background evidence established a policy,
"system," or practice of coercive collection of the vacation service charge which
carried on from year to year and explained why the employees paid the charge in
1963-because they had been coerced in previous years. Acceptance of this theory
in the absence of proof of coercion in 1963 would mean giving independent and
controlling weight to the anterior events. The 1963 events would be:
conduct occurring within the limitations period [which] can be charged
to be an unfair labor practice only through reliance on an earlier unfair labor
practice. There the use of the earlier unfair labor practice is not merely
"evidentiary," since it does not simply lay bare a putative current unfair
labor practice. Rather, it serves to cloak with illegality that which was other-
wise lawful. And where a complaint based upon that earlier event is time-
barred, to permit the event itself to be so used in effect results in reviving a
legally defunct unfair labor practice.15
Under this state of the law it is not necessary to set forth herein the background
evidence or an analysis of it. Even if it were given independent and control-
ling weight, however, it would not necessarily follow that the General Coun-
sel proved that in 1963 some 2,400 employees working for some 59 employers paid
their vacation service charge because of the operation of a "system" of coercion by
the shop chairmen. The "background" evidence related to only a handful of shops
and shop chairmen and the alleged practice or "system" was not shown to have
been imposed upon some 50 or more of the contracting shops. Equally tenable
with the thought that the employees paid the service charge out of coercion would
be the thought that they paid it because they understood it was a union charge
which had been voted by the membership and which the members therefore
owed. The latter thought is the more acceptable where, as here (as substantively
testified by Manager Frankel), no employee ever failed to receive his vacation check
because of failure to pay the vacation service charge.
D. Final conclusions
Upon all of the above findings and conclusions, and the entire record consid-
ered as a whole, I conclude that Respondent has not during the "10(b) period"
violated the Act, and I recommend that the complaint be dismissed in its entirety.
As the record reveals that the vacation service charge is an exorbitant charge
for the service rendered, in the Union's best interest and in order to protect the
Union against possible future harassments and prosecutions , I recommend to the
Union that it either eliminate the vacation service charge altogether or greatly
reduce it.
15 Local Lodge No. 1424, International Association of Machinists v. NL.R.B. (Bryan
Manufacturing Co.), 362 U S. 411. Cf . Hershey Chocolate Corporation, 129 NLRB 1052,
where the Board rejected the "continuing coercion" theory.