Macomb Pottery Co.

National Labor Relations Board - Board Decisions

May 20, 1968

171 N.L.R.B. 565 (N.L.R.B. 1968)

MACOMB POTTERY COMPANY 565
International Brotherhood of Operative Potters,
AFL-CIO (Macomb Pottery Company ) and Jean
Rittenhouse and Saundra Bollinger. Case
38-CB-107
May 20, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On February 6, 1968, Trial Examiner Jerry B.
Stone issued his Decision in the above-entitled
proceeding finding that Respondent Union had en-
gaged in and was engaging in certain unfair labor
practices in violation of the National Labor Rela-
tions Act, as amended, and recommending that it
cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent
(herein also referred to as the Union or the Interna-
tional ), and the General Counsel filed exceptions to
the Trial Examiner's Decision and supporting
briefs. The General Counsel also filed a brief sup-
porting part of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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 the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
The Trial Examiner found, and for reasons stated
in his Decision we agree, that Respondent violated
Section 8(b)(2) of the Act by attempting to cause
the discharge of employee Moore for failure to pay
dues. Contrary to the Trial Examiner, however, we
find Respondent did not violate Section 8(b)(1)(A)
of the Act by its conduct toward employees
Bollinger and Rittenhouse.
The facts, more fully set forth in the Trial Ex-
aminer's Decision, show the Respondent Union ini-
tially began to organize the employees of the
Macomb Pottery Company in 1964, and won a
Board-conducted election in February 1965.
Thereafter, in July 1965, the Union was certified by
the Board as the employee representative for col-
lective bargaining. Meanwhile, in April 1965, the
employees held a meeting for the election of local
officers and thereafter received a local charter from
the International.
Although the International's constitution sets
forth a detailed series of steps for acquisition of
membership through an existing local, "where a
new local is being organized," it requires merely
that "application [for membership] must be made
to the International for acceptance" but does not
specify the form such acceptance shall take.' The
record establishes that in practice, where there is
no local or a new local is being formed, member-
ship is extended to all employees who sign applica-
tion for membership cards and whose names are
forwarded to the International Union for receipt of
the International's publication, "The Potters
Herald." This procedure of forwarding signed cards
to the International was followed by the organizing
employees during the time relevant herein, and the
Trial Examiner found that persons who signed
union membership applications shortly thereafter
began receiving the union publication. As the
Union's practice was to waive initiation fees and
not to require dues until a contract had been
negotiated none of the employees had paid dues or
initiation fees.
Subsequent to the Union's certification, and after
extensive litigation,' the Employer and the Union
executed a collective-bargaining agreement effec-
tive June 13, 1967, containing a maintenance-of-
membership provision.
On June 29, 1967, the Union called a "member-
ship meeting" for ratification of the contract. Inter-
national Representative Null testified that at the
meeting he explained the union-security provisions
to the assembled employees and stated that all per-
sons who signed membership application cards
prior to the execution of the contract would be
required to maintain their union membership. In
keeping with its usual practice of not requiring dues
until a contract had been negotiated, no attempt
was made to collect dues until sometime thereafter.
' The International 's constituion states in relevant part
Section 2. Any person working in an industry under the jurisdiction of
the Brotherhood may be eligible to become a member of the Brother-
hood Such person shall apply for membership to the Local Union hav-
ing jurisdiction over the pottery or plant in which such person is em-
ployed 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 applicant be ac-
cepted, 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 Internationalfor acceptance [Emphasis supplied ]
2 376 F 2d 450 (C A 7), enfg 157 NLRB 1616
171 NLRB No. 79
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rittenhouse and Bollinger were employed after
the Union was certified. Shortly after beginning
their employment, but before the contract was ex-
ecuted, Bollinger and Rittenhouse signed applica-
tions for membership. Their names were submitted
to the International, and the "The Potters Herald,"
was sent to them.
On August 16, 1967, while Local President Bur-
ton was attempting to secure checkoff authoriza-
tions pursuant to the contract dues checkoff provi-
sion , he was asked by Bollinger and Rittenhouse
what he would do if they did not sign checkoff
cards. Burton stated it would be "silly" if they did
not sign the cards because the cards permitted the
automatic deduction of dues, but otherwise they
would have to pay their dues in person and "if they
got behind in dues the Union would write a letter to
the Company and get them discharged."
The Trial Examiner found that the Local Union
had failed to process the applications for member-
ship in accordance with the International's constitu-
tion , and that accordingly Bollinger and Ritten-
house had not become members in the Respondent
prior to the execution of the contract. He con-
cluded that these two employees were therefore not
required to maintain their membership under the
union-security agreement, and hence Burton's reply
that the Union would seek their discharge if they
became delinquent in their dues was an unlawful
threat in violation of Section 8(b)(I )(A) of the
Act. We do not agree.
Contrary to the Trial Examiner, it is abundantly
clear on this record that, for purposes of the union-
security clause, both Bollinger and Rittenhouse
were members of the Respondent Union prior to
June 13, 1967, the execution date of the contract.
There is no question but that they had signed appli-
cation for membership cards in 1965, shortly after
the Respondent was certified by the Board. The
Trial Examiner also found that in agreeing to the
relevant maintenance-of-membership aspect of the
union-security clause the Respondent and the Em-
ployer intended and considered that all employees
who had signed application for membership cards
had become members. It is apparent that, in hold-
ing that membership had not resulted, the Trial Ex-
aminer relied on constitutional provisions relating
to acquisition of membership in existing locals
which were inapplicable to acquiring membership
in a new local being organized. In the latter situa-
tion, which was the case here, special provisions
apply which do not specify any form which the In-
ternational's acceptance of membership should
take. It is also clear in this record that the Respon-
dent followed its established practice in situations
of the kind that existed here. It is well settled that a
labor organization has a right to prescribe its own
rules for the acquisition and retention of member-
ship, and this is spelled out in the proviso to Section
8(b)(1)(A). It is therefore not appropriate for the:
Board to determine whether the rules established
are valid unless some violation of another section of
the Act has been alleged.
Under these circumstances, we can see no room
for doubt that, although no employee was expressly
told of acceptance by the Union, the existence of a
membership relation was contemplated by all the
parties, i.e., the employees, the Respondent, and
the Company, to the extent each had an interest or
right to question or participate in determining such
status. In this connection the facts show that by
their conduct the employees themselves contem-
plated the existence of a membership relationship,
since they availed themselves of the right to attend
union meetings and voted to ratify the contract,'
and, except for Moore, there is no evidence that
any employee expressed a desire to withdraw even
after the contract (including the union-security
clause) was explained to the employees at the
union meeting. Additionally, and very significantly,
the manner in which Bollinger and Rittenhouse
questioned Burton about the effect of their failing
to authorize dues checkoff reveals that they con-
sidered themselves to be members and under an
obligation to pay dues. For their query was not
directed to what would happen if they did not join
or pay any dues, but only about the consequences
of rejecting the suggested method of payment.
Under the circumstances, Burton was clearly enti-
tled, and perhaps required, to let these employees
know of their obligation to maintain their member-
ship in Respondent and of the Respondent's right
and intention to secure the discharge of employees
who failed to satisfy such obligation.'
In summary, we find, on the basis of the forego-
ing, that Bollinger and Rittenhouse acquired mem-
bership in Respondent prior to the execution of the
contract herein, that each was therefore obligated
to retain membership in the Respondent for the du-
ration of the contract under the union-security
clause, and Burton was merely informing them of
the legal consequences which could follow should
they become delinquent. Such a statement to em-
ployees who are required to maintain membership
'See, e g , Oil, Chenucal and Atomic Worlerr International Union (U-
nited Nuclear Corporation), 148 NLRB 629, 632, enforcement denied 340
F 2d 133, 136 (C A I )
' Cf Granite City Steel Co, 169 NLRB 1009, concerning a union's
fiduciary duty to inform employees of their obligation under a union-
security clause
MACOMB POTTERY COMPANY 567
cannot be an unlawful threat in violation of Section
8(b)(I )(A). Accordingly, we shall dismiss the com-
plaint insofar as it alleges a violation by virtue of
this statement by Burton.
and the Respondent filed briefs which have been
considered.
Upon the entire record in the case and from my
observation of the witnesses, it is hereby found as
follows:'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent
Union , International Brotherhood of Operative Pot-
ters , AFL-CIO ( Macomb Pottery Company),
Macomb , Illinois, its officers , agents , and represen-
tatives, shall take the action set forth in the Trial
Examiner 's Recommended Order , as herein
modified:
1. Delete the words "successors and assigns" in
the first paragraph of the Recommended Order and
insert the word " and" between the words " agents"
and the word "representatives " in the same para-
graph.
2. Delete paragraph 1(b) from the Recom-
mended Order.
3. Delete paragraph 2(b) from the Recom-
mended Order and redesignate paragraphs 2(c) and
2(d) as paragraphs 2(b) and 2(c), respectively.
4. Delete the second indented paragraph of the
Appendix to the Trial Examiner 's Decision.
5. Delete the last indented paragraph in the Ap-
pendix.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE , Trial Examiner: This proceeding
under Section 10(b) of the National Labor Rela-
tions Act, as amended, was tried pursuant to due
notice on November 15, 1967, at Macomb, Illinois.
The charges were filed on August 18, 1967, Sep-
tember 15, 1967, and November 9, 1967. The com-
plaint in this matter was issued on September 18,
1967, and was amended at the hearing on
November 15, 1967.
The issues involved are (1) whether the Union
threatened certain named employees with reference
to the payment of dues, (2) whether the Union at-
temped to cause the Employer to discharge Evelyn
L. Moore because of her failure to pay dues, and
(3) whether the foregoing acts of the Union were
protected by a lawful union-security-type contract
clause authorized by Section 8(a)(3) of the Act or
were violative of Section 8(b)(1)(A) and (2) of the
Act, respectively.
All parties were afforded full opportunity to par-
ticipate in the proceeding, and the General Counsel
1. THE BUSINESS OF THE EMPLOYER2
Macomb Pottery Company, herein called the
Employer, is and has been at all times material
herein an Illinois corporation engaged in the manu-
facturing of pottery and ceramics at its plant in
Macomb, Illinois. The aforesaid Employer annually
manufactures and ships in excess of $50,000 worth
of goods from its Macomb, Illinois, plant directly to
points outside the State of Illinois. As conceded by
the Respondent, and based upon the foregoing, it is
concluded and found that Macomb Pottery Com-
pany is, and has been at all times material herein,
an Employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED3
International Brotherhood of Operative Potters,
AFL-CIO, the Union and the Respondent herein, is
now, and has been at all times material herein, a
labor organization within the meaning of Section
2(5) of the Act . It is so concluded and found.
III. THE UNFAIR LABOR PRACTICES
Background
The Respondent International Union engaged in
a union organizing campaign at Macomb Pottery
Company during the period of time- 1964 to ap-
parently mid-1967. During this period of time the
Union solicited and secured from a number of em-
ployees signatures to "application for membership"
cards. The said cards also set forth in effect that the
employee also authorized the Union to represent
the employee and to negotiate agreements as to
hours of labor , wages , and conditions of employ-
ment.
Evelyn L. Moore
Evelyn L. Moore signed one of the aforesaid
cards (application for union membership and
authorization for representation) on or around
February 1, 1964. Thereafter and until around
April 1965 Moore had no further contact with the
Respondent Union.
On February 11, 1965, the Respondent Union
won an NLRB-conducted representation election at
the Macomb Pottery Company.
' The General Counsel's motion to correct the official transcript of
testimony, attached to his brief to the Trial Examiner and marked "Appen-
dix A" to said brief, is granted Copies of aforesaid "Appendix A" have
been marked as Trial Examiner's Exhibit I and received into the record as
an explanatory exhibit relating to this footnote ruling
2 The facts are based upon the pleadings and admissions therein
The facts are based upon the pleadings and admissions therein
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Around April 1965 the Respondent Union un-
dertook the formalization of a local union for the
employees at the Macomb Pottery Company. Vari-
ous employees of the Macomb Pottery Company
were notified by "word" of a union meeting, and a
union meeting was held in April 1965. Attending
this meeting were various Macomb Pottery Com-
pany employees. Some of these employees had
signed "application for membership" cards4 for the
International Union, and some had not. Interna-
tional Representative Hackett attended this meet-
ing.
At this meeting all employees present were al-
lowed to and did participate in the voting for of-
ficers for the "local" union being formed. Thus em-
ployees who had signed "application for union
membership" cards and those who had not signed
such cards participated in said voting. Only those
employees who had signed "application for union
membership" cards were allowed, however, to be
nominated for officers for the "local" union being
formed. Evelyn L. Moore was one of the employees
nominated and elected as an officer of the "local"
union. Moore was elected as "trustee" for the "lo-
cal" union. At this meeting International Represent-
ative Hackett administered the "oath of office" to
Moore and the other elected officers of the "local"
union . Sometime thereafter in April 1965 the Inter-
national Union issued a charter to the "local"
union and International Representative Hackett
brought the charter to the "local" union.
The day after the meeting in which she was
elected an officer Moore went to Local Union Vice
President Jones and asked how she could get out of
the Union and the committee on which she be-
longed. Jones referred Moore to President Burton
(of the local union). Moore went to Burton and
asked Burton how she could get out of the Union
and off the committee. Moore told Burton she
wanted the International Representative's
(Hackett's) address so that she could write to him.
Burton told Moore that this would not be necessary
because as far as he was concerned that they did
not have a thing in the Union.'
Moore went back to Vice President Jones (of the
local union) and told him what Burton had said.
Jones told Moore that it did not sound right, but
that if Burton said it, this was all right.
Moore thereafter did not attend any union
meetings and had no contact with the Union until
September 1967.
Sometime after the April 1965 election of "lo-
cal" union officers and the issuance of the local
union charter, the local union sent to the Interna-
tional Union a list of those considered to be mem-
bers of the "local" union and requested that the In-
ternational Union's publication, "The Potters
Herald," be sent to such "members."' Commencing
sometime thereafter, "The Potters Herald" was
sent by the International Union to such persons.'
Excluding the question of whether the taking of
"the oath of office" by Moore constituted ac-
ceptance as a member and notification of the same,
there is no evidence that either the International
Union or the "local" union engaged in any formal
act of acceptance of the applicants for union mem-
bership as members or notified such applicants of
their acceptance as union members prior to the
time that a request was made that the International
Union send such persons copies of "The Potters
Herald."
The evidence preponderates for a finding and I
so find that Evelyn L. Moore's name was not on the
list of persons sent by the "local" union to the In-
ternational Union for receipt of "The Potters
Herald." There is no evidence that such publication
was actually sent to Moore. There is evidence that
at a time when Moore's son was an employee at
Macomb Pottery Company and after he had signed
an "application for membership" card, a copy of
such publication came to Moore's and her son's
home. After Moore's son ceased his employment,
however, the publication did not come to her
home. Had the publication been once mailed to
Evelyn Moore, it is reasonable to believe that it
would have continued being mailed to her. Since it
did not continue to be mailed to Moore's house
after her son had ceased employment, I am con-
vinced that the publication was sent only to
Moore's son and not to her.
Excepting for the implications involved in being
sworn in as an officer as revealed above, there is no
evidence to indicate that Moore became a union
member. Moore was never told to report for initia-
' All of the cards involved were dual-purpose cards-application for
membership and authon7ation for representation
' Burton testified in effect that what Moore told him was as revealed in the
facts as set out above excepting that Moore did not ask for Hackett's ad-
dress and that he did not tell her that as tar as he was concerned they did
not have a thing in the Union . Burton testified that he merely told her
"okay " It is thus clear that Burton knew that Moore wanted out of the
Union and off the committee and that he told her in effect that this was
"okay " Considering the totality of the evidence and the status of the
Union 's attempt to secure recognition at the time , 1 am convinced that Bur-
ton considered that he was in the midst of a long drawn-out attempt to
secure recognition by the Company and that he made the remarks in-
dicated by Moore because of such reah7ation I am convinced that under
such circumstances Moore's more complete testimony is more reliable
than Burton 's and I so credit it wherein there is a conflict with Burton's
testimony I discredit Burton's testimony inconsistent with the facts found
' Null's and Burton 's testimony as to many details was imprecise and
jumbled Since, as indicated hereinafter, the evidence preponderates for a
finding that Moore, who had signed an "application for membership" card
on February I, 1964, never received "The Potters Herald," I am con-
vinced, conclude, and find that the initial list of those who were to receive
"The Potters Herald" was compiled by the "local" union after the events of
April 1965 concerning Moore I am also convinced from Burton's total
testimony that he and those involved in making such a list considered that
they were sending in a list of members, and, excepting for Moore, that
those who had signed "application" cards were members I am convinced
that the fact that Moore was not included on said list was because Moore
was considered to have withdrawn from the Union
' According to Null, the Union's practice was to commence sending "The
Potters Herald" after the election was won Accordingly it is clear that this
occasion was the first occasion that "The Potters Herald" was sent to
Macomb Pottery Company employees
MACOMB POTTERY COMPANY 569
tion as a member , was not initiated , and paid no
dues nor initiation fees , and did not have further
contact with the Union.
It is officially noted that subsequent to the elec-
tion held on February 11, 1965, the Employer filed
objections to the said election , and thereafter on
July 21, 1965, the Board certified the Union as the
representative of the employees involved, and
thereafter the Employer continued to refuse to
recognize and bargain with the Union , and on April
11, 1967, the Board issued a bargaining order
against the Employer ," and thereafter on April 18,
1967, a decree of the Seventh Circuit Court of Ap-
peals was entered enforcing said Board Order.'
Subsequent to the above -referred-to Circuit
Court of Appeals decree the Respondent and the
Employer commenced negotiation for a contract.
Saundra Bollinger
On or about August 8, 1965, Burton, for the
Respondent Union, approached Bollinger about
signing a union application for membership (and
authorization for representation ) card. Burton told
Bollinger that he was going to try to get a closed
shop , that anyone who signed a card before the
Company and the Union signed an agreement
would not have to pay initiation fees and that those
who had not signed the card before that time would
have to pay the initiation fee. Bollinger shortly
thereafter signed a union application for member-
ship card ( and authorization for representation)
and returned it to Burton.
Apparently, a short time thereafter , Burton sub-
mitted Bollinger 's name to the International Union
for receipt of "The Potters Herald," and Bollinger
commenced receiving copies of "The Potters
Herald ." Thereafter Bollinger attended one union
meeting in November 1966.
Except for such implications as might be deter-
mined from the sending of "The Potters Herald" to
Saundra Bollinger , the following may be sum-
marized : Bollinger was never notified of her ac-
ceptance as a member by the Union, was not told
to report for initiation , was not initiated as a union
member , paid no dues or initiation fee , and did not
receive union mail (other than "The Potters
Herald"). There is no evidence to reveal that the
Union, in accordance with its constitution, acted
upon and accepted Bollinger 's application for mem-
bership , notified her of such acceptance , notified
her of a pending initiation , or initiated Bollinger.'"
Jean Rittenhouse
Burton , for the Union on September 30, 1965,
approached Mana Jean Foxall (later Jean Ritten-
house ) about signing a union application for mem-
bership and authorization for representation. Bur-
ton told Mana Jean Foxall that he wanted the card
signed in order to find out how many would be for
the Union when the Union got in, that when and if
the employees signed the card that the employees
who signed the card would not have to pay the $5
union initiation fee, and that if she didn't really
want to join the Union when it got in that the card
would just be forgotten." Foxall and Burton
discussed the fact that there was "strike" talk and
that Foxall needed to work. Burton told Foxall that
she could continue to work if there were a strike
Foxall conferred with her father who was present
and signed the card as requested.
Around December 1965 Foxall's parents moved
away from Macomb, Illinois. Foxall also moved
from the address she lived at but continued to work
for the Employer. Later Foxall married and became
Jean Foxall Rittenhouse.
Apparently Burton submitted Foxall's name to
the International Union for receipt of "The Potters
Herald." Apparently "The Potters Herald" was sent
at a later date to Foxall at the address indicated on
her "application for union membership" card but
was returned to the Union because Foxall had
moved away
After signing the "application for union member-
ship and authorization for representation" card in
December 1965, Foxall (Rittenhouse) had no
further contact with the Union until August 1967.
Except for such implications as might be deter-
mined from the sending of "The Potters Herald" to
the address on Foxall's (Rittenhouse's) "applica-
tion for union membership and authorization for
representation" card, the following may be sum-
marized: Foxall (Rittenhouse) was not notified that
the Union had accepted her application for union
membership, was not told to report for initiation,
was not initiated, paid no dues, did not attend any
union meetings, received no mail from the Union,
and did not receive copies of "The Potters Herald"
until October 1967.
" 157 NLRB 1616.
" 376 F 2d 450
"' Although the evidence reveals that the Union , under certain circum-
stances, waived dues and initiation fees, there is no evidence that the act of
initiation was knowingly waived.
'' The facts are based upon a composite of the credited testimony of Rit-
tenhouse and Burton Burton testified to the effect that he told Foxall that
the initiation fee would he waived for those who signed before a contract
was executed, that he told Foxall that there would he no dues until after a
contract was signed , and that he did not tell her that the card would mean
nothing Of the two witnesses I am convinced that Rittenhouse 's (Foxall)
version is more reliable where in conflict The evidence reveals that the
Union did not follow up, did not act upon the application, and did not noti-
fy Foxall (Rittenhouse ) of acceptance of her application for membership
Considering the fact that the Union was already certified but that the Em-
ployer was not recognizing the Union as bargaining representative, I am
convinced that the card solicitation was merely a continuation of an or-
ganizational attempt for possible future election efforts or other purposes
Considering the logical consistency of all of the facts, I find Rittenhouse's
version of facts more reliable than Burton 's Furthermore , Rittenhouse, as
compared to Burton , appeared to me to be more frank , forthright, and
truthful than Burton as a witness I thus credit Rittenhouse's version over
the verion of facts testified to by Burton
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In mid-1967 Macomb Pottery Company, after
enforcement in the Circuit Court of Appeals of a
Board's Order, commenced honoring the Board's
certification of the Union as bargaining representa-
tive of the employees in a stated appropriate bar-
gaining unit.
Null credibly testified to the effect that on June
29, 1967, the Employer's attorney presented him a
written proposed contract which contained union-
security language to the effect that employees who
were members of the Union on June 13, 1967,
would have to remain members, that he signed said
contract without raising any question about the
union -security language. 2
On June 29, 1967, the Union signed the
discussed collective-bargaining agreement, and the
Employer signed the agreement on July 7, 1967.
The said collective-bargaining agreement contained
the following provisions:
The International Brotherhood of Operative
Potters, AFL-CIO, herein called the Unio
and Macomb Pottery Company, herein called
the Company, lawfully entered a collective
bargaining agreement which was effective June
13, 1967 and is and will be in effect until June
13, 1970.
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 mem-
bers in good standing in the Union. In-
dividuals 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 mem-
bership in the Union available to all em-
ployees on the same terms and conditions
as are generally applicable to other mem-
bers 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.
*
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 stand-
ing on the effective date of this Agreement
shall remain members in good standing.
Furthermore, all employees covered by
'- The Respondent 's counsel at the hearing contended that one or part of
his defenses was to the effect that the word " members" had special mean-
ing in law and that the parties in discussion prior to the execution of the
collective-bargaining agreement had discussed the question of union
security within the purview of such special meaning. The Respondent con-
tends that it was the parties' understanding that the words " members" in
the contract referring to employees employed as of June 13, 1967, meant
those employees who had signed " application cards ." The Respondent of-
fered evidence relating to statements made by the parties during negotia-
tions and after the execution of the contract . Over the General Counsel's
objection this evidence was received into the record . Upon further con-
sideration I find merit in the General Counsel 's objections. Apparently the
Respondent 's contention of unique meaning to the word " members" stems
from a belief that the language of the Supreme Court of the United States
in N.L.R.B. v. General Motors , 373 U.S. 734, 53 LRRM 2313, indicates
such . In my opinion the language in the above -referred -to case does not
reveal that the word "members" has a unique meaning but rather that
"compulsary membership " within the purview of Section 8(a)(3) of the Act
is of a limited nature . As I see the evidence , the Respondent has not
established a basis to reveal an exception to the normal rule of contract in-
terpretation or application . Accordingly, I limit my consideration of
evidence as to the parties ' intent to the words in the contract . However,
were Ito consider the evidence adduced relative to statements made before
and after the execution of the contract and bearing upon the Respondent's
contention as to the parties ' meaning of the word " members " in the con-
tract , I would find the intent of the parties to be the same as expressed in
the executed contract . The evidence reveals that the Respondent during
negotiations considered that those who had signed " application for mem-
Checkoff. The Company will honor in-
dividual 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
bership" cards had become members. The negotiations covered a series of
discussions and it is reasonable to believe that the Respondent 's considera-
tion of who had become members was made clear to the employer. It has
always been a fundamental consideration that a contract " speaks for itself"
because it embodies the final refinement of the parties' views and inten-
tions. That Null read and signed the contract without comment, under the
circumstances involved, and with his consideration that those who had
signed application cards had become members, clearly reveals that the
contract set forth correctly an intention that employees who were "mem-
bers" on Junc 13, 1967, would have to remain members. Thus I : in con-
vinced that the Respondent and the Employer considered that all who had
signed "application for membership" cards had become members. This
does not mean, however, that the parties considered that those who had
signed "application for membership" cards became members by the mere
act ot'signing. Null testified to the effect that he knew this not to be so. It is
clear that he must have been operating on an erroneous assumption that
some other act had occurred to make such persons members . Furthermore,
although not necessary under the facts herein, I would find it proper that
the conditions of union security as imposed upon employees should be
strictly construed. Unlike other conditions of employment, union-security
conditions are of a type which, when applied to those employees who do
not voluntarily want to belong to or to support a union, reveals a conflict in
interest between said employees and the parties to such contract as sets
forth such provisions. Such rights of the employee as are affected may be
described as basic personal-type rights. Since the contract terms are
negotiated by persons other than the employee affected (who may have an
interest against such term) it appears proper that the instrument affecting
such rights should he strictly construed against the makers thereof.
MACOMB POTTERY COMPANY 571
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
deduction 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 deduc-
tions.
In connection with the foregoing it is noted that
the International Union 's constitution which
governed both the International and local union
sets forth with respect to union membership the fol-
lowing:
Section 1. The Brotherhood shall be composed
of workers eligible for membership in the In-
ternational 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 ju-
risdiction over the pottery or plant in which
such person is em ployed . 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 member-
ship by the Local Union and should such appli-
cant 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 ap-
pear 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.
EVENTS OF AUGUST 16, 1967(3
Around August 16, 1967, the Respondent was at-
tempting to secure employee signatures to checkoff
of dues cards . On August 16, 1967, employees Rit-
tenhouse and Bollinger spoke to Burton about the
checkoff card . Rittenhouse and Bollinger asked
Union Agent Burton what he would do if they did
not sign the checkoff card . Burton told Bollinger
and Rittenhouse that they would be silly if they did
not sign the card, that the card let the dues be
deducted automatically, that otherwise they would
have to pay their dues in person, and that if they
got behind in dues that the Union would write a
letter to the Company and get them discharged.
Events of September and November 1967
On or about September 15, 1967, the Respon-
dent Union transmitted by mail to Evelyn Moore
(Mrs. Cecil Moore) a notice to the following effect:
Delinquent Notice
Our Ledger shows that you are one months
in ARREARS in the Local for DUES. of one
percent of your earnings
To avoid being SUSPENDED you are
hereby requested to report to the FINANCIAL
SECRETARY of L.U. No. 340 on or before
Sept18, 1967.
Please give this matter prompt attention and
oblige
(Signed:) /s/ Carolyn J.
Everly
Financial Secretary
On or about October 20, 1967, the Respondent
Union transmitted by mail to Evelyn Moore (Mrs.
Cecil Moore) a notice to the following effect:
DELINQUENT NOTICE
Our Ledger shows that you are 2 months in
ARREARS in the Local for DUES.
To avoid being SUSPENDED you are
hereby requested to report to the FINANCIAL
SECRETARY of L.U. No. 340 on or before
Fri-Oct. 21st.
Please give this matter prompt attention and
oblige
(Signed :) /s/ Carolyn J.
Gadbury
Financial Secretary
On or about November 7, 1967 , the Respondent
Union transmitted to the Employer a letter as fol-
lows:
Larry;
I am Requesting that you relieve Evelyn
Moore from her Job as of Friday November
10, 1967 . At 4:00 O'clock if she has not at that
time payed her dues , According to Article (1)
Section ( 3) of the contract between Macomb
Pottery and the International Brotherhood of
Operative Potters , AFL-CIO, CLC.
Franternally Yours
/s/ Lloyd R. Burton
Loyd R. Burton
" The facts are based upon a composite of the credited testimony of Rit-
tenhouse and Bollinger and an exhibit ( statement of Burton , Respondent's
agent)
572 DECISIONS OF
Conclusions
NATIONAL LABOR RELATIONS BOARD
It is clear that the Respondent Union's conduct,
by Burton, directed toward Bollinger and Ritten-
house, around August 16, 1967, constituted an act
of restraint or coercion within the meaning of Sec-
tion 8 (b)( I )(A) of the Act unless permitted by vir-
tue of a legal union-security agreement. It is also
clear that the Respondent Union's conduct, by Bur-
ton, directed toward the discharge of Moore in Sep-
tember, October, and November, 1967, constituted
acts of restraint and coercion and an attempt to
cause her discharge within the meaning of Section
8(b)(2) of the Act unless permitted by virtue of a
legal union -security agreement."
The union -security clause in the collective-bar-
gaining contract sets forth : " 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 the
agreement shall remain members in good stand-
ing." The effective date of the said contract was
June 13, 1967.
The evidence is clear that Bollinger , Rittenhouse,
and Moore were employees as of June 13, 1967.
The issue is whether Bollinger , Rittenhouse, and
Moore were union members as of June 13, 1967.
The International Union's constitution which
governs both the International and the local union
clearly reveals that applications for union member-
ships have to be acted upon and that there must be
an act of acceptance before an applicant becomes a
member. The said constitution clearly reveals an in-
tent that the applicant for membership be duly
notified of the Union's acceptance of the applicant
as a member.
In the cases of Bollinger and Rittenhouse , except
for the question of sending of "The Potters
Herald," it is clear that there is no evidence that
either the International Union or the local union
ever acted upon the "application for membership"
and decided to accept such applicants as members,
nor is there any evidence that such applicants for
membership were notified of their acceptance.
The Respondent contends that the sending of
"The Potters Herald" to the individuals involved
constituted an act of acceptance and of notification
of acceptance as members.
I have examined the copy of "Th' Potters
Herald" in the exhibit file. I find nothing in said
copy to indicate that "applicants for membership"
are advised that they have been accepted into
union membership.
Considering Burton's testimony in context with
the totality of the evidence, I am convinced that
Mottgome,v Ward & Co Incorporated , 121 NLRB 1552, 1557
I find no evidence to reveal that the International Union or the local
union intentionally waived any requirement that there be a formal act of
acceptance or rejection of application for union membership or notifica-
tion of acceptance to such applicants as accepted
"' Although not necessary under the facts herein , and for the same
Burton mistakenly believed that the mere signing of
an application for union membership card made
such an applicant a member.` I am convinced that
as a result that there was no followup or act to ac-
cept or reject applicants for membership, that Bur-
ton merely notified the International Union to send
"The Potters Herald" to such "applicants." The In-
ternational Union, on the other hand, apparently
did not know when it received the lists of names for
persons to receive "The Potters Herald" that the
applications for membership had not been acted
upon. Consequently the "applications for member-
ship" were not acted upon, and notifications of ac-
ceptance were not made.
Considering all of the foregoing, I conclude and
find that Bollinger and Rittenhouse were not mem-
bers of the Union on June 13, 1967," and that the
Union's conduct around August 16, 1967, by Bur-
con, directed toward Bollinger and Rittenhouse,
was not permitted by the union-security contract
clause Accordingly, I conclude and find, as il-
leged, that the Respondent Union, by Burton, by
the conduct described occurring on August 16,
1967, violated Section 8(b)(1)(A) of the Act.
In the case of Moore, I am convinced that the act
of Moore's being sworn in as an officer of the local
union in April 1965 was sufficient to constitute her
a member of the Union at that time . However, I am
convinced that Moore's telling Burton in effect
within the next day or two that she "wanted out" of
the Union and didn 't want to have anything to do
with it and his telling her in effect that this was
"O.K." constituted in effect an effective withdrawal
from the Union . I am convinced that the failure of
Burton to request "The Potters Herald " to be sent
to Moore at that time clearly reveals that Burton
approved and agreed to her withdrawal from the
Union.
Considering all of Vie foregoing, I conclude and
find that Moore was not a union member as of June
13, 1967, and that the Union's conduct in Sep-
tember , October, and November, 1967, as
described and directed toward the discharge of
Moore, was not permitted by the union -security
contract clause. Accordingly, I conclude and find,
as alleged , that the Respondent Union, by Burton,
by the conduct described in September, October,
and November, 1967, violated Section 8(b)(2) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the opera-
reasons as indicated with respect to the strict construction of a union-
security contract , I would find it proper that a strict construction of the
Union's requirements for the acquisition and the granting of union mem-
bership should be in order wherein such status affects the employee 's right
to engage in or to refrain from engaging in union activities
MACOMB POTTERY COMPANY 573
tions of the Employer described in section I, above,
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 commerce and the free flow of
commerce.
V. THE REMEDY
tices within the meaning of Section 8(b)(1)(A) of
the Act.
4. By attempting to cause the Employer to
discharge Evelyn Moore, Respondent Union vio-
lated Section 8(b)(2) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section
8(b)(2) and 8(b)(1)(A) of the Act.
Having found that the Respondent has engaged
in and is engaging in certain unfair labor practices,
it shall be recommended that they cease and desist
therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent has violated Sec-
tion 8 (b)(2) of the Act by attempting to cause the
discharge of Evelyn Moore, it shall be recom
mended that Respondent cease objection to the
employment by the Employer of Moore and notify
the Employer and Moore to such effect.
Having found that Respondent has violated Sec-
tion 8 (b)(I)(A) by threats to Rittenhouse and
Bollinger relating to the payment of dues, it shall be
recommended that the Respondent notify Ritten-
house and Bollinger that it will cease such threats.
In view of the nature of the unfair labor practices
committed , the commission by the Respondent of
similar unfair labor practices against other em-
ployees may be anticipated. It shall therefore be
recommended that the Respondent cease and desist
from restraining or coercing any employees in any
manner in the rights guaranteed by Section 7 of the
Act except as may be permitted by Section 8(a)(3)
of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
In view of the nature of the unfair labor practices
committed , it shall also be recommended that the
Respondent notify all employees of Macomb Pot-
tery Company, employed as of June 13, 1967, and
who had signed "application for membership"
union cards but who in fact had not become mem-
bers of the Respondent Union as of June 13, 1967,
that they are not required to become union mem-
bers or to pay union dues as a condition of employ-
ment as a result of the collective-bargaining agree-
ment entered into by the Respondent Union and
Macomb Pottery Company, effective June 13,
1967, and until June 13, 1970.
CONCLUSIONS OF LAW
1. Macomb Pottery Company is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. International Brotherhood of Operative Pot-
ters , AFL-CIO, is a labor organization within the
meaning of Section 2(6) and (7) [sic] of the Act.
3. By restraining and coercing employees in the
exercise of rights guaranteed by Section 7 of the
Act, Respondent has engaged in unfair labor prac-
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in the case, it is recommended that Respondent, its
officers, agents, representatives, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Attempting to cause Macomb Pottery Com-
pany to discriminate against Evelyn Moore, or any
other employee because of their exercise of rights
guaranteed to them in Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized in Section 8(a)(3) of the National
Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
(b) Threatening with demand of discharge or
discharge, or in any other manner restraining or
coercing Evelyn Moore, Jean Rittenhouse, Saundra
Bollinger, or any other employee of Macomb Pot-
tery Company, in the exercise of rights guaranteed
in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in Section
8(a)(3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which is
found will effectuate the policies of the Act:
(a) Advise Macomb Pottery Company and Eve-
lyn Moore that the International Brotherhood of
Operative Potters, AFL-CIO, has no objection to
the employment of Evelyn Moore because of her
failure to pay union dues.
(b) Notify all employees of Macomb Pottery
Company, employed as of June 13, 1967, and who
had signed "application for membership union
cards" and who in fact had not become members of
International Brotherhood of Operative Potters,
AFL-CIO, as of June 13, 1967, that they are not
required to become union members or to pay union
dues as a result of the collective-bargaining agree-
ment entered into by said Union and Macomb Pot-
tery Company, effective June 13, 1967, and until
June 13, 1970.
(c) Post at its respective office and meeting hall,
copies of the notice attached hereto and marked
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Appendix. "t' Copies of said notice, on forms pro-
vided by the Officer-in-Charge for Subregion 38,
shall, after being duly signed by a representative of
Respondent International Brotherhood of Opera-
tive Potters, AFL-CIO, be posted immediately
upon receipt thereof, and be maintained for a
period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to their respective members are customarily posted.
Reasonable steps shall be taken by Respondent In-
ternational Brotherhood of Operative Potters,
AFL-CIO, to insure that said notice is not altered,
defaced, or covered by any other material.
(d) Sign, as aforesaid, and return sufficient co-
pies of the said notice, attached hereto marked
"Appendix" to the Officer-in-Charge for Subregion
38, for posting, the Employer, Macomb Pottery
Company, being willing, at such places where
notices, bulletins, or communications to the em-
ployees of said plant are customarily posted. Such
copies of the notice shall be on forms furnished the
International Brotherhood of Operative Potters,
AFL-CIO, by the said Officer-in-Charge.
(e) Notify the Officer-in-Charge for Subregion
38, in writing, within 20 days from the date of this
Recommended Order, what steps the Respondent,
International Brotherhood of Operative Potters,
AFL-CIO, has taken to comply herewith.["
17 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 Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
IN In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Officer-in-Charge for
Subregion 38, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
such rights may be affected by an agreement
requiring membership in a labor organization
as a condition of employment, as authorized in
Section 8(a)(3) of the National Labor Rela-
tions Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL NOT threaten with demand of
discharge or discharge, or in any other manner
restrain or coerce Evelyn Moore, Jean Ritten-
house, Saundra Bollinger, or any other em-
ployee of Macomb Pottery Company, in the
exercise of 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 condi-
tion of employment, as authorized in Section
8(a)(3) of the National Labor Relations Act,
as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
We have no objection to the employment of
Evelyn Moore because of her failure to pay
union dues. We have given Macomb Pottery
Company notice to this effect.
WE WILL notify all employees of Macomb
Pottery Company, employed as of June 13,
1967, and who had signed "application for
membership union cards" and who in fact had
not become members of our Union as of June
13, 1967, that they are not required to become
union members or to pay union dues as a result
of the collective-bargaining agreement entered
into by said Union and Macomb Pottery Com-
pany, effective June 13, 1967, and until June
13, 1970.
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify you that:
WE WILL NOT attempt to cause Macomb Pot-
tery Company to discriminate against Evelyn
Moore, or any other employee, because of
their exercise or rights guaranteed to them in
Section 7 of the Act, except to the extent that
Dated By
INTERNATIONAL
BROTHERHOOD OF
OPERATIVE POTTERS,
AFL-CIO
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Subregional
Office, 4th Floor, Citizens Building, 255 Main St.,
Peoria, Illinois 61602, Telephone 309-673-9061.