Marlin Rockwell Corp.

National Labor Relations Board - Board Decisions

Oct 20, 1955

114 N.L.R.B. 553 (N.L.R.B. 1955)

MARLIN ROCKWELL CORPORATION 553
5. By causing the Company to discriminate against E. J. Harrison, S. W. Carlisle,
Thomas A. Gray, Dallas Roy, H. A. Doucet, R. D. Lisenby, D. ' B. Lisenby, and
Rubin Thomas in violation of Section 8 (a) (3) of the Act the Respondents have
engaged in unfair labor practices in violation of Section 8 (b) (2) of the Act.
6. The Respondents, by the aforementioned acts, have restrained and coerced em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, and did there-
by engage in and are engaging in unfair labor practices within the meaning of Section
8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8. The Union has not violated the Act by maintaining its bylaws in effect,
and imposing an assessment on all working members. Nor have the Respondents
coerced S. W. Carlisle to furnish them with an affidavit, in violation of the Act.
[Recommendations omitted from publication. ]
Marlin Rockwell Corporation and Adam T. Raczkowski
Marlin Rockwell Corporation and Arthur R. Wolfe
Marlin Rockwell Corporation and John H. Turner
International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, CIO and Its Local 197
and Adam T. Raczkowski
International Union , United Automobile, Aircraft and Agricul-
I'ttiral Implement Workers of America, CIO and Its Local 197
and Arthur R. Wolfe
International Union, United Automobile Aircraft and Agricul-
tural Implement Workers of America, CIO and Its Local 197
and John H. Turner. Cases Nos. 1-CA1596, 1-CA-1607, 1-CA-
1689, 1-CB-249, 1-CB-956, and 1-CB-272. October 20, 1955
DECISION AND ORDER
On July 30,1954, Trial Examiner Loren Laughlin issued his Inter-
m"ediate Report in this proceeding, a copy of which is attached hereto,
finding that the Respondent Unions had engaged in and were engag-
ing in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action. The
-Trial Examiner also found that the Respondent Company had not
engaged in unfair labor practices and recommended therefore that the
complaint against the Company be dismissed. Thereafter, the Re-
spondent. Unions filed exceptions to the Intermediate Report and a
supporting brief, and requested oral argument. The request for oral
argument is hereby denied because the record and briefs, in our
opinion, adequately present the issues and the positions of the parties.
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 Interme-
114 NLRB No. 94.
554 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
diate Report, the exceptions and brief, and the entire record in the
case, and with certain exceptions noted below hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, to the
extent that they are consistent with this Decision and Order.
As appears more fully from the Intermediate Report this case arose
as a result of differences between the Union and the Company, on the
one hand, and the employees who filed the charges herein, on the
other,' over the Union's legal right to invoke against these employees
the discharge powers afforded it by its current membership-mainte-
nance contract. The Union allegedly invoked those powers as a
means of compelling the employees to make financial dues contribu-
tions to the Union, although the employees had tendered resignations
from union membership and although.the membership-maintenance
contract in effect when they resigned had expired. The Trial Exami-
ner found (and for the reasons set forth hereafter we agree) that the
Union's interpretation and application of its current membership-
maintenance contract to the charging employees in these circumstances
was erroneous as a matter of law. He found further, that as the
Union's invocation of its discharge powers thus represented an intru-
sion upon statutory rights of employees which the current contract did
not specifically justify, the Union violated 8 (b) (2) and 8 (b) (1) (A)
of the Act.
In its exceptions, the Union claims initially that there is no "proper"
record basis for a fact finding that it actually invoked, or threatened
to invoke, the discharge powers of its union-security agreement
against the charging employees for the latter's nonpayment of dues.
The facts critical to a disposition of these factual exceptions are as
follows.
The Union's official position with respect to the charging employees'
resignations from union membership was that the resignations were
null and void. It so advised both the Company and the employees on
-a number of occasions, and so maintained throughout this proceeding.
The Union's aim, so far as the charging employees' were concerned,
was to obtain from such employees their continuing contributions of
periodic membership dues for the duration of the current union-
security agreement. This became effective October 12, 1953. Be-
cause this date followed by several weeks the date on which the
employees had tendered their union membership resignations, the
employees did not consider themselves subject to the contract's provi-
sions 'and hence failed thereafter to tender dues voluntarily. The
Union countered by informing the Company of the employees' "delin-
quency" in dues payments, by advising the Company that the Union
1 Herein called the Charging Employees when referred to, jointly when referred to
separately, the name of each employee is given The term "the Union" refers to both
the Respondent Local and the Respondent Intelnatlonal
MARLIN ROCKWELL CORPORATION 555
"insisted" that these employees must continue to maintain union
membership under the terms of the current agreement (or else the
Union "would demand their discharge"), and by requesting the Com-
pany in effect to so admonish the employees. The Company did so.
The union officials also communicated directly with the employees
with respect to the alleged dues delinquencies and the Union's posi-
tion as to its contractual rights. On November 5, 1953, the Union
sent an official written notice to the employees in which the Union
gave the employees until November 13, 1953, to cure the alleged dues
delinquencies. In this notice, the Union referred the employees to
both the "current" and the "prior" union-security contract and repre-
sented such agreements as precluding the employees from effecting
any "escape" from union membership obligations. At about this same
time, a Local Union agent expressed the Union's position to one of
the charging employees (Wolfe) to be that the employees were to
"pay up or get fired."
There is no question that the employees resisted these dues demands.
Two of them (Wolfe and Raczkowski) filed charges with the Board
in December 1953, complaining of the Union's demands and thereby
plainly denying the obligation to comply with the same. The third
(Turner) simply refused to tender any dues after November, and
finally did so in March 1954, only after the Union formally demanded
that the Company dismiss him, and the Company advised him that
it "would have no choice" but to grant this request in view of his failure
to pay dues for the prior 4-month period. He filed charges with the
Board complaining of the Union's attempt to cause his discharge on
April 8, 1954.'
As of the date of the hearing, no change in the employment rela-
tionship of the charging employees had actually occurred. Because
of this fact, the Union contends that the complaint, charging the Union
with the violation of Section 8 (b) (1) (A) and 8 (b) (2) of the Act,
represents an unwarranted attempt by the General Counsel to obtain
a kind of "declaratory judgment" of the Union's contract rights. The
short answer to this contention is that Section 8 (b) (2) of the Act pro-
scribes not only a Union's actual causation of discriminatory employer
action but also its attempted causation of such employer action.' Fur-
ther, Section 8 (b) (1) (A) of the Act more broadly interdicts any
union conduct threatening the job security of an employee or otherwise
2 As the Trial Examiner points out, the Company refused to carry out the Union's dis-
charge demand unless Turner was given a further opportunity to cure the alleged dues
delinquencies . The Company called Turner in thereafter , showed him the Union's formal
request for discharge , and urged him to pay his dues, in view of his long seniority with
the Company, so that he would not lose his job. At this point Turner (faced with the
realization that his job was in danger ) paid the requested dues and filed charges with
the Board
a Cf Addressograph-hfulttigrap/j Corpoiatson , '{Washington Branch , 110 NLRB 727.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actually endangering it because of an employees' refusal or failure to
abide by union membership conditions.'
Proof of the L nion's "attempt to cause" the discharge of employees
for nonpayment of dues is here indisputably supplied by the mutually
corroborative admissions of union and employer agents at the hearing
that the Union formally requested the Company to dismiss employee
Turner in March 1954. Further proof of the Union's restraint and
coercion of the employees is supplied not only by this discharge re-
quest threatening Turner's employment, but also by the Union's earlier
conduct as above described.5 In sum, the record shows that the Union
openly took a position that it was entitled either to obtain union dues
from the charging employees or to have these employees dismissed
that it induced the Company to threaten the employees with dismis-
sal ; and that it graphically demonstrated to the employees that its
statements of this position were not mere "expressions of opinion"
(as the Union now claims), but real warnings that the employees were
in danger of losing their jobs if they failed to satisfy the Union's dues
demands.
We do not view the mere existence of a contract affording the Union
some power over employment conditions in the interest of union se-
curity, as determinative, without more, of the coercive or noncoercive
nature of the Union's conduct, even though such contract may afford
the Union with a means for defending the use of coercion in a proceed-
ing such as this. For the question whether or not a contract does
provide the lawful means for the avoidance of unfair labor practice
liability presents a wholly separable issue. It is squarely presented
here by the Union's insistence that it was contractually entitled to
obtain union-security support from the charging employees as a con-
dition of their continued employment., We turn then to a considera-
tion of this issue, and to the facts relevant to its determination.
The union conduct which we deem violative of the Act occurred
on and after November 1953. The Union's avoidance of liability for
this conduct therefore depends upon what powers were validly of
forded it by the union-security contract in effect on such dates.' The
' See, e. g, Buie Building Materials Company , 112 NLRB 1059.
5In view of the sufficiency of the Union's demand for Turner's discharge as proof of
the 8 ( b) (2) violation , and in light of the fact that no question of the reinstatement of
any of the charging employees is here involved , we need not decide whether or not the
Union also made earlier requests for the discharge of the charging employees in January
1954. Therefore we do not adopt nor pass upon the Trial Examiner's findings that such
a discharge demand was made in January 1954. Nor do we reach the merits of the Union's
exceptions to the fact that such hndings were predicated upon the testimony of Field
Examiner Ernest Modern
9 See, e. g. , New Jersey Bell Telephone Company, 106 NLRB 1322, enfd. 215 F. 2d 835
(C. A. 2) ; and Haffenreffer & Company, 104 NLRB 206 In these cases , the Board pointed
out that the proviso to Section 8 ( a) (3) sets up a provable defense to conduct outlawed
by 8 (b ) (2) of the Act, only in the limited situation where a union can show the
existence of a permissible union-security contract in effect at the moment the attempted
or actual discharge action is taken . In each of those cases the respondent union caused
MARLIN ROCKWELL CORPORATION 557
contract in effect on and after November 1953 imposed no express
union membership obligations on any employees who were not mem-
bers of the Union on its "effective date." It required only that em-
ployees who were members on its "effective date," or those who there-
after joined the Union voluntarily, would remain "members in good
standing" for the duration of the agreement. The "effective date" of
the agreement was October 12, 1953. The charging employees sub-
mitted unequivocal resignations to the Union from union membership
in September 1953, before the contract came into being. It is patent,
therefore, that unless the Union was entitled to construe the term
"members," as used in the October 1953 agreement, as including former
members who had thus resigned, the complaint must be sustained.
Application of the usual principles of contract construction to the
1953 agreement offers no aid to the Union's position. Nothing in
the language of the agreement, or in such other conduct of the parties
from which we might otherwise properly determine what the mutual
understanding of the parties at the bargaining table in fact was,
warrants any inference that the Company granted the Union the
exclusive right to determine who were "members" of the Union
on its effective date without regard to the express will of the em-
ployees concerned.' Indeed, the language of the union-security pro-
visions of the 1953 agreement, fairly construed, tends to establish
rather, that the Employer granted the Union less than the full se-
curity which the Union could validly have obtained at the bargaining
table because he did not wish to burden employees who wished to be
"nonunion" with the compulsive condition of union-membership.
To overcome the effect of such a reading of the' contract, the Union,
however, would establish that legal "bars" to the right of the charg-
ing employees to voluntarily resign from union membership existed
at the date of resignation either because : (1) The bargaining con-
tract executed in 1950 and in effect in September 1953 (referred to
hereafter as the 1950 contract) required all employees who had volun-
tarily acquired union membership to maintain "membership in good
standing" for the duration of the contract; or (2) because the inter-
nal union member contract (expressed to the extent here relevant in the
Union's constitution), otherwise prohibited members from submitting
voluntary resignations before December 21 of any calendar year. In
sum, the Union claims that its "right" to construe the term "mem-
bers" in the 1953 agreement as including the charging employees
exists by operation of law.
the discharge of employees at a date when no current applicable security provision justified
the discharge . The reason was that the employees had failed to satisfy dues obligations
accrued ' under a prior union-security agreement . The Board held in each case that the
discharge action was unlawful.
7 we need not and do not decide whether the union -security provision , if so written,
would or would not conform to the requirements of Section 8 (a) (3).
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In dealing with the legal issues so raised, we note at the outset that
the Union's reliance on the 1950 bargaining contract's maintenance-
of -membership provisions as a bar to the employees' resignation here-
is somewhat beclouded by certain contentions concerning the con-
tract's duration. These contentions were advanced for the purposes
of obtaining a determination as to whether or not there was a hiatus
between the successive membership-maintenance contracts during
which the employees could have resigned without violating their al-
leged duty, under the union-security contract's terms, not to resign."
As appears more fully from the Intermediate Report, the Union took
a strong position, on the one hand, that the 1950 contract remained
continuously in effect until the moment the 1953 contract came into
being, and that there was thus no interim "escape" period between
the successive contracts .9 The General Counsel took the position, on
the other hand (and the Trial Examiner agreed), that the 1950 con-
tract's term was "interrupted" on September 14 or 15, the original
terminal date contained in the agreement as written,10 and that there-
was thus an "escape" period between the successive contracts.
The Union's claim as to the continuing nature of the contract is-
predicated on the memorandum agreement which emerged from the
bargaining table on September 11, 1953. The language of this mem-
orandum contract tends to show that the parties intended thereby to
effect the extension of the 1950 contract beyond its original terminal
date. The General Counsel's position as to the "interrupted" nature
of the 1950 contract on September 14 or 15, however, rests on a prem-
ise that the September 11 memorandum agreement did not-become
legally effective until sometime after September 14 or 15. In sup-
port of this premise, he relied on evidence showing that the Union
failed to obtain its membership's "ratification" of the agreement, as
purportedly required by the Union's internal constitutional require-
ments, before the September 14 or 15 terminal date of the contract
was reached. The Board would dispose of these contentions and the
Trial Examiner's findings with respect thereto as follows.
In agreement with the Trial Examiner, Acting Chairman Rodgers
would find that the September 11 extension agreement was not legally
effective until ratified by the Union's membership 11 and that, accord-
8 If the bargaining arrangements did not impose the compulsive condition of union
membership on the employees at all times here material, then in the Union's view, the
internal union rules imposed such a condition.
8 By taking the position that an "unmarred continuity" existed between the successive
membership-maintenance contracts the Union believes that it would avoid liability for its
conduct herein under the principles set forth in National Lead Company, Titanium
Division. 106 NLRB 545.
70 We agree with the Trial Examiner that it does not matter whether the language
"until September 15" as used to describe the termination of the 1950 contract, included
September 15 or excluded it
'' Acting Chairman Rodgers is of the view that internal union rules requiting member-
ship ratification of negotiated contracts must be complied with before a union may validly
a
MARLIN ROCKWELL CORPORATION 559
ingly the 1950 contract's term was actually interrupted on September
14 or 15. The remaining members of the Board find it unnecessary,
.however, to decide definitively whether or not the 1950 contract re-
mained continuously in effect without interruption until October 12,
1953. Hence they do not adopt nor pass upon the Trial Examiner's
finding that absence of membership ratification of the September 11
contract was fatal to the Union's contention that there was an un-
marred continuity in time between the successive bargaining contracts.
Their view in this respect is predicated upon the fact that, if the 1950
contract's term was actually "interrupted" on September 14 or 15,
then the Union's reliance upon its provisions as a "bar" to the em-
ployees' resignation would be squarely foreclosed by the New Jersey
Bell Telephone Company decision.12 If, however, the 1950 contract
actually remained continuously in effect until October 12, 1953, then,
in their view, the Union's valid reliance upon its provisions as a "bar"
to the right of the employees to resign from the Union, would be fore-
closed by a line of decisions beginning with the Union Starch case.13
In the Union Starch case, the Board had before it a situation in
which a union holding a valid union-security contract in the fullest
form authorized by the proviso to Section 8 (a) (3) of the Act, in-
voked the contract's discharge provisions against employees who were
willing to tender dues, and fees to the union for the duration of the
contract, but who refused, for reasons of their own, to be "members"
of the union. The union viewed the express terms of its contract which
imposed the compulsory condition of, union-membership on the em-
ployees (as authorized by 8 (a) (3)) as affording it legal rights similar
in nature to those claimed by the Respondent Union here. In brief,
the union argued that when a union-security contract comes into being,
requiring "membership" as a condition of employment, it has a legal
right to treat the arbitrary decision of nonunion employees.to remain
"nonunion" as a patent violation of union-security contract's express
provisions, and hence to force the employees' discharge. A majority
of the Board rejected,the union's position upon finding that such posi-
tion was inconsistent with the legislative scheme of the amended Act.
Specifically, the Board indicated that, while the making of a union-
security contract in the terms permitted by the proviso to Section 8
(a) (3) entitled the contracting union to force nonunion employees to
contribute to a union's treasury, such event did not otherwise operate
rely upon that contract as an effective "bar" either to a rival representation petition or
to any other employee "rights" sought to be asserted under the statute. Mr. Rodgers
would therefore dispose • of the union contentions, which' rely upon the 1950 contract,
wholly upon the theory adopted by the Trial Examiner. Accordingly, he expresses neither
agreement nor disagreement with the alternate theory adopted by the remaining members
of the Board
12106 NLRB 1322, enfd 215 F 2d 835 (C. A. 2).
13 Union Sta'>ch and Refining Company, 87 NLRB 779, enfd 196 F. 2d 1008 (C. A. 7),
cert denied 341 U S. 815
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a suspension of the protected right, guaranteed to employees by
Section 7 of the Act, to refrain from union membership and activity at
will.14 The Board held, accordingly, that the mere refusal of the em-
ployees to join a union holding a valid union-shop contract, was not the
kind of "violation" of the union-shop contract which the union could
lawfully enforce through discharge, or any other action affecting the
employees' job security.
We believe that a ruling here favoring the Respondent Union's con-
struction of the "right" afforded to it by the 1950 contract would do
violence to the principles thus first established by the Union Starch
case . For we regard the withdrawal by employees from a union to be
an act not qualitatively different from the refusal by employes to join
a union . It follows, therefore, that the Respondent Union's statutory
privilege to use a union-security contract-no matter how worded-as
a reason for denying the effectiveness of the employees' independent
decision to reject union "membership" status, can be no greater in the
former type of situation than it is in the latter. As there is no valid
contention here that the charging employees were unwilling to con-
tribute dues for the duration of the 1950 contract,15 it follows that the
position taken by the Respondent Unions here is subject to the identical
considerations underlying the Board's treatment of the position taken
by the contracting union, respondent in the Union Starch case. We
hold, accordingly, that, whether or not the 1950 contract remained
continuously in force after September 15, and up to October 12, 1953,
its provisions did not and could not validly supply any basis for de=
priving the employees of a right to sever their affiliation with the
Union at will. ' ,
The removal of the 1950 contract as a "bar" to the employees' right
of voluntary termination of their union membership either on the
theory adopted by the Trial Examiner and by Acting Chairman
Rodgers, or on the theory adopted by the other members of the Board
signatory hereto, leaves for consideration an additional question. That
is, whether in any event, the provisions of the internal union-member
contract supply a valid reason for denying the effectiveness of the
charging employees' resignations.16
14 Subsequently decided cases exemplifying the extent to which employees are free to
enjoy the "negative" right guaranteed by Section 7 of the Act while a union-security
contract is in effect, include Radio Officers' Union, etc. v. N. L; R B., 317 U. S. 17;
N. L R R v National Biscuit Co., 222 F 2d 573 (C. A 2) ; Injection Molding Co.,
104 NLRB 639.
25 We have no doubt upon this record that the charging employees were willing to con-
tinue making contributions to the Union for the period between the date they resigned
their union membership and the date the 1950 contract terminated . It appears that they
in fact did so without complaint . However, even if we assume that the 1950 contract
remained effective up to it date beyond one on which the employees remained in "paid
up" dues status voluntarily , this fact would not benefit the Union 's ultimate position here.
le The relevant provisions of the Union 's constitution are set forth in the Intermediate
Report.
-MARLIN ROCKWELL-1 CORPORATION 561
In. considering this issue, we are willing, for the purposes of this
case, to recognize the factual merit of the Union's claim that the em-
ployees committed a patent breach of their union membership con-
tract by submitting resignations in September 1953. To the extent
that the employees used their "resignations" as reasons for refusing to
contribute dues for the period between the end of the 1950 contract
and the date they were permitted to resign under the Union' s rules,
the Union was involuntarily deprived of the financial benefits insured
to it under the membership contract. In these circumstances, a part,
if not all, of the Union's demands upon the employees for dues follow-
ing their acts of disaffiliation from the Union can be viewed, factually,
as attempts to remedy the effect of an employee breach of an intra-
union membership contract. The question we must here decide, how-
ever, is whether the Union was entitled to use the sanction of actual
or threatened discharge action against the charging employees to over-
come the effect of the employees' acts of disaffiliation under the cir-
cumstances of this case.
To establish its statutory "right" to use discriminatory sanctions in
the circumstances of this case, the Union refers us to the proviso to
Section 8 (b) (1) (A). This guarantees that nothing in the proscrip-
tions of 8 (b) (1) (A) shall be deemed to "impair the right of a labor
organization to prescribe its own rules with respect to acquisition or
retention of union membership." It refers us also to cases in which
the Board has noted that the "right" to prescribe rules also includes
the "right" to enforce the same.17 In terms specifically related to the
instant case, the Union argues that a Board decision sustaining the
resignations herein, would intrude upon its "right" to enforce ,the in-
traunion rules with respect to the "retention of membership." Fairly
viewed, this argument, however, misconstrues the purport of the 8 (b)
,(1) (A) proviso, and seeks to interpret its provisions as affording to
unions a license to discriminate against employees over and beyond
that specifically allowed by the proviso to Section 8 (a) (3). We can-
not accept it.
As we read the 8 (b) (1) (A) proviso, its sole purport is to guaran-
tee to unions the privilege, as a voluntary association, to determine
both who shall be a union "member," and what substantive conditions
a "member" must comply with in order to acquire or retain union mem-
bership status. It is for this reason that the Board cannot and will
not judge the fairness or unfairness of internal union determinations
which may enable or disable particular individuals to obtain the in-
191 g., International Typographical Union, at at, 86 NLRB 951, 957, in which the
Board held that union threats to deprive members of membership status if they refused
to abide by union policies did not constitute violations of the Act. The affirmative order
in this case was enforced in 194 F. 2d 782 (C A 7), and 345 U. S 100.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cidental benefits of union membership as provided by internal union
legislation."
However, as we have already indicated, we read the provisions of
Section 7 of the Act as affording to employees an equally unqualified
and independent privilege to determine whether they will or will not
be "union members." For this reason, in a situation of the kind pre-
sented here, the Board cannot and will not judge the reasonableness
or unreasonableness of any clearly evidenced act of employees estab-
lishing their intent to be nonunion. Nor can it interpret such em-
ployee action in terms of either a bargaining agreement's language or
that in an intraunion membership contract. For to do so would dis-
regard the provisions of Section 7 of the Act.
There is no ambiguity here in the employees' declarations in the let-
ters they submitted to the Union in September 1953. The employees
declared there in clear and unequivocal terms that they no longer de-
sired to be members of the Union. Their union membership status
therefore ceased as of the date they submitted their unequivocal resig-
nations, and their nonmember status afforded them protection against
compulsive pressures affecting their job security, exerted here as a
means of compelling their continuing dues contributions to the Union
at,a time when they were not required by the then current bargaining
agreement to again join the Union.19
On the basis of the foregoing facts, we conclude, as did the Trial
Examiner, that in threatening the charging employees with discharge
action and in attempting to cause the Company to discharge em-
ployees, because of their refusal to pay union dues after September
1953, the Union has engaged in and is engaging in violations of
Section 8 (b) (1) (A) and 8 (b) (2) of the Act. We find, further,
in agreement with the Trial Examiner, that the Union should not
be allowed to enjoy the benefits of its unlawful conduct, and that,
accordingly, an affirmative order requiring it to reimburse the charg-
ing employees for dues coercively collected from them after Septem-
ber 1953, is an appropriate remedy in this case. We shall therefore
include such a provision in the Order.
is See the International Typographical Union case , supra, footnote 17. Cf. Kuner-
Empson Company, 106 NLRB 670
ie The New Jersey Bell Telephone Company case , supra, footnote 12, supports this
conclusion Addteseograph-ilfultigpaph Corporation, Washington Branch, supra, foot-
note 3, is in accord The National Lead case, supra, footnote 9, to which the Union
has referred us, calls for no contrary view. For the Board' s decision in that case as to
the rights afforded the contracting union under successive and continuous membership-
maintenance contracts to discharge employees who had failed to pay dues for a 4-month
period going 2 months back into the term of the earlier contract, was rendered in a fact
context in which no issue was raised as to the membership status of the employees in-
volved at all the dates there relevant To the extent that the decision implies that the
mere failure of employees to pay membership dues in such a contract context is not alone
sufficient to warrant finding that the employees thereby became automatically entitled
to be tieated as "nonmembers" by this Bolid, the decision is hmieby athimed 1[onnever,
it is not apposite here.
MARLIN ROCKWELL CORPORATION -553
In light of the Trial Examiner's recommended dismissal of the
complaint against the Company and the absence of any exceptions to
such recommendation, we hereby adopt such recommended dismissal
of the 8 (a) (1) and 8 (a) (3) allegations of the complaint, and shall
make appropriate provision therefor in our Order.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, CIO and its Local 197, and their respective
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Making any demand or request of the Employer, Marlin, Rock-
well Corporation at its Plainville, Connecticut, plant, that it discharge
or otherwise discriminate against or threaten to discharge or other-
wise interfere with, restrain, or coerce its employees, Adam T.
Raczkowski,•John H. Turner, and Arthur R. Wolfe, or any of them,
in their exercise of the rights guaranteed to them and to each of
them in' Section' 7 of The Act, including the right, to refrain from any
and all union concerted activities, pertaining to aad including joining
or assisting such International Union, its Local 197, or any other
local of said International Union, other than as may be lawfully
required under the provisions of any agreement between said Inter-
national Union and such local or locals, made in accordance with and
under the proviso of Section 8 (a) (3) of the Act.
(b) Making any demand for, or receiving any money for, union
dues, fines, or assessments, or otherwise from any of the said three
employees, otherwise than as voluntarily paid by him if he should
hereafter rejoin the Union.
(c) Taking any action like or related to that described in para-
graphs numbered 1 (a) and 1 (b) of this Order or any other action
against said three named employees, or any of them, which violates
Section 8 (b) (1) (A) or Section 8 (b) (2) of the Act.
2. Take the following affirmative action to effectuate the policies
of the Act :
(a) Notify Marlin Rockwell Corporation at its Plainville, Connec-
ticut, plant that any and all request for the respective discharges of
each of the three named employees are fully withdrawn by said
Respondents.
(b) Notify each of said three named employees, in writing, that
such request for his discharge by Marlin Rockwell Corporation has
been so withdrawn by said Respondents.
387644-56--vol . 114-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post on all bulletin boards assigned to said Respondent Unions
in the Plainville, Connecticut, plant of Marlin Rockwell Corporation,
,or at all places in said plant where union notices are customarily
posted, copies of the notice attached hereto marked "Appendix A." 20
Copies of such notice, to be furnished by the Regional Director for the
First Region, shall, after being duly signed by the official representa-
tives of both the International Union and its Local 197, be posted by
them immediately upon receipt thereof, and maintained by them in
all such places above referred to, and maintained by them for sixty
(60) consecutive days thereafter in such places. Reasonable steps and
proper care shall be taken by such Respondents to insure that such
notices are not altered, defaced, or covered by any other material.
(d) Forthwi'h repay to each of said three named employees any
and all sums collected from him by Respondents as and for monthly
union dues after September 1953.
(e) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Decision and Order, what
steps have been taken to comply herewith.
The Board further orders that the complaint against Marlin
Rockwell Corporation be, and the same hereby is, dismissed.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
ao In the event that this Order is enforced by a decree of a United States Court of
Appeals there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL withdraw our requests hereinbefore made of Marlin
Rockwell Corporation that it discharge each of its employees,
Adam T. Raczkowski, John H. Turner, and Arthur R. Wolfe,
from his employment at its Plainville, Connecticut, plant for his
nonpayment of union dues since September 1953; that we will
not under the union-security clause of the October 12, 1953, col-
lective-bargaining agreement between us and Marlin Rockwell
Corporation, standard division, or any automatic renewal or re-
newals thereof under article XIII, section 1, of said agreement,
require the payment of any union dues from any of said three
named employees nor require the payment of dues from them
under any new agreement with said Marlin Rockwell Corpora-
MARLIN ROCKWELL CORPORATION 565
tion, standard division, which does not lawfully so require, as,
authorized by the National Labor Relations Act, as amended,
which requires such employees to join or maintain their member-
ship in, this labor organization as a condition of employment.
WE WILL NOT again request the discharge of any of said three
employees or otherwise in any like or related manner cause or
attempt to cause its officers, agents, successors, or assigns to inter-
fere with, restrain, or coerce employees Adam T. Raczkowski,
John H. Turner, and Arthur R. Wolfe, or any of them, in viola-
tion of Section 8 (a) (1) of the Act or to discriminate against any
of such employees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of their rights guaranteed in Section
7 of the Act, including particularly the rights to refrain from
joining the Union and its Local 197 and to refrain from paying
dues to them.
WE WILL notify Marlin Rockwell Corporation, in writing, and
furnish copies to Adam T. Raczkowski, John H. Turner, and
Arthur R. Wolfe, and to each of them, that we have withdrawn
our request for the discharge of each of said employees.
WE WILL make each of said three employees whole for any dues
we have collected from him since September 1953.
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL UNION 197 OF UNITED AUTOMOBILE
AND AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
These six cases involve alleged respective violations by the Respondent Employer
and the Respondents International Union and its Local 197 of certain provisions of
the National Labor Relations Act, as amended by the Labor Management Relations
Act, 1947, 61 Stat. 136, et seq., 29 USCA 141, et seq., as amended, hereinafter
referred to as the Act.
The 3 consolidated CA cases involve alleged violations of Section 8 (a) (1) of
the Act by the Respondent Employer, Marlin Rockwell Corporation (hereinafter
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
referred to as the Employer or the Company.), in that said Employer unlawfully
threatens to discharge each of 3 of its employees, Adam T. Raczkowski, Arthur R.
Wolfe, and John H. Turner, the Charging Parties herein, respectively, unless he pays
dues and maintains his membership in the Respondents International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America, CIO (hete-
inafter referred to as the International Union ), and its Local 197 (hereinafter
referred to as the Local or Local, 197, both being also referred to conjointly as the
Union, where apposite). '
The other 3 cases are consolidated CB cases involving alleged violations of Section
8 (b) (1) (A) and 8 (b) (2) of the Act by the said International Union and its
Local 197, in that they are demanding the discharge by the Employer, respectively,
of each of its said 3 charging employees for his alleged nonpayment of union dues;
that in demanding such discharges they have caused or attempted to cause and are
causing and attempting to cause said Employer to unlawfully discriminate against
each of the said 3 employees by threatening his discharge, thereby unlawfully
encouraging membership in a labor organization.
It is the theory of General Counsel that the International Union and its Local 197
and the Employer have, at least since November 5, 1953, as to each of the said
three employees, Raczkowski, Turner, and Wolfe, forced him under threat of
discharge to pay and keep up monthly union dues since September 1953, although
each of them had resigned from' the Union in early September 1953, when he was
legally entitled to do so, and was not required to rejoin the Union under a new
collective-bargaining agreement thereafter made between the Union and the
Employer permitting nonmember employees to refrain from joining the Union.
The 3 Respondents all respectively contend, in substance, that said 3 employees
never legally resigned and could not legally resign from the Union under continuing
collective-bargaining agreements with the Employer and a preventive 'provision of
the union constitution, although in its brief the Employer submits that it could not
determine, and was not obligated by law to determine, the issues of alleged member-
ship and resignation between' the said 3 employees and the Union, and therefore
threats of discharge it concedes were made by said Employer were made in compli-
ance with its agreement with the Union at the Union's request, and hence such acts
do not constitute,a violation of Section 8 (a) (1).
The precise question at issue here is whether or not the said 3 employees, each
of whom definitely tendered his resignation from the Union in early September
1953, during the existence of a prior collective- bargaining agreement containing a
maintenance-of-membership clause, which agreement expired September 14, 1953,
at midnight, such resignation taking effect prior to the execution of a subsequent
new. and different 2-year agreement containing a modified union-shop clause with
the Employer effective on October 12, 1953, are required to remain union members
during the term of the said new agreement, there being a provision in the Union's
constitution-which permits-them to resign only during the last 10 days of the
Union's fiscal year, which period in 1953, was the last 10 days of December. This
involves the determination' of whether or not the October 23, 1950, collective-
bargaining agreement , which expired by its own terms at midnight September 14,
1953, was continued in force by reason of an alleged retroactive ratification by the
Union's membership on September 16, 1953, of a day-to-day extension of the former
1950 agreement, which extension was made with the Employer by the Union's
bargaining committee on September 11, 1953. The paramount question, stated
broadly as to its ultimate general legal effect, is: Do the provisions of Section 7 of
the Act guaranteeing to employees "the right to refrain from any or all" union
"activities except to the extent that such right 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 Act prevail over the said provision of the
International Union's constitution, conflicting with the said statutory right of
employees to refrain from any or all union activities, including the right to resign
at any time from the Union?
I find herein that the said provision of the Act guaranteeing employees the right
to refrain from union activities includes the right of resignation at any time and
that such right is distinguishable from the consequences it may entail; that such
right is paramount to and prevails at all times over such provision of the Interna-
tional Union's constitution; that under the circumstances of this case the Union
violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act, as each of the said three
employees was authorized by law to resign from the Union when he did; that each
-such resignation continued in force and such employee therefore could not be law-
fully discharged or threatened with discharge by the Employer for his failure to pay
the Union's dues and the Union could not legally demand such discharge under the
MARLIN ROCKWELL CORPORATION 567',
entirely new and different collective-bargaining agreement subsequently entered into
after a lapse of time following the expiration of the former agreement, such new
agreement having an "escape clause" which permits the Company's employees who
were not members of the Union at the time such new agreement became effective, to
refrain from union membership. But I find that the Employer, being without fault
or a complete knowledge of all the facts and attempting to comply with its agreement
with the Union and dealing reasonably and fairly with the situation, did not violate
Section 8 (a) (1) of the Act. Reasons for such finding and the recommendations
made to accord to such findings appear in due course herein.
The matters involved in this case all arose in the State of Connecticut where "no
right to work" statute or constitutional provision exists, and there is therefore no
question as to validity of the agreements involved here, both of which are concededly
lawful under the Act.
History of the Litigation
Adam T. Raczkowski filed his original charges against all Respondenents on
December 8, 1953, and his amended charge against Respondents International Union
and its Local 197 on April 16, 1954. Arthur R. Wolfe filed his original charge
against all the Respondents on December 21, 1953, and his amended charge against
Respondents International Union and its Local 197 on April 14, 1954. John H.
Turner filed his charges against all the Respondents on Apiil 8, 1954. Based upon all
such charges and amended charges, on April 22, 1954, the Board's Regional Director
for the First Region, upon special advice of the General Counsel, filed a complaint
against the Employer and also a complaint against the International Union and its
Local 197, each appropriately alleging in 3 separate but jointly alleged and consol-
idated cases the matters so charged against such respective Respondents by each of
said 3 charging employees. An answer was duly filed by both the International
Union and its Local 197 on May 3, 1954, and the Employer filed its answer on
May 4, 1954, each denying the commission of any alleged unfair labor practices by it.
An order consolidating all six of the cases for hearing and noticing the con
solidated hearing for May 10, 1954, was issued and served with the said complaints
on April 22, 1954. The hearing was thereafter postponed and rescheduled by a
proper order and duly noticed for May 17, 1954.
Pursuant to said order of continuance and in accordance with notice and due proc-
ess of law, hearing upon the six consolidated cases was held by the duly designated
Trial Examiner at Room 326, Post Office Building, Hartford, Connecticut, on May
17 and 18, 1954. General Counsel and the Employer appeared by their respective
counsel and the International Union and its Local 197 appeared both by counsel
and also by official representatives. All Respondent parties were duly served with
all jurisdictional orders and other documents. And all acts and procedures at the
hearing afforded all parties due process in all particulars. Respondents conceded
the Board's jurisdiction at the time of hearing by a stipulation of facts as to the
Employer's business. Final arguments were waived at the close of the hearing when
all parties had rested but all parties then requested and obtained leave to submit
briefs in due time, the time for filing which was subsequently extended twice by
proper orders of the Acting Chief Trial- Examiner. Briefs have been submitted re-
spectively by the Respondent Employer on June 24, 1954, and by the Respondents
International Union and Local and by General Counsel on June 28, 1954. All of
the briefs have been carefully examined and all contentions of the parties and
authorities cited have been fully considered and resolved in the findings and recom-
mendations made by the Trial Examiner herein.
The pleadings were not subjected to attack and require no separate discussion,
the various admitted and contested issues thereof being adequately covered under
appropriate subsequent captions hereof. A motion to conform the complaints to the
proof made at the close of the case was unopposed and is hereby granted, since
the granting thereof at the hearing is, for some unkown reason, not shown in the
record.
FINDINGS OF FACT
All the findings of fact hereinafter made are respectively binding on each party
to each of the 2 consolidated cases and specifically binding as each-respective Re-,
spondent in the 6 individual cases involved herein, insofar as such findings of fact
are relevant to such individual cases. Upon the entire record in this case, and from
his observation of the conduct and demeanor of the witnesses, the Trial Examiner.
makes the following findings of fact (including discussions of the evidence, argu-
ments, and legal authorities pertinent to the facts as found) :
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. NATURE AND EXTENT OF RESPONDENT EMPLOYER 'S BUSINESS-JURISDICTION OF
THE BOARD
The Employer admitted the allegations of the CA complaint relating to the nature
and extent of the Employer's business but the International Union and its Local
197 alleged they were without knowledge of the corresponding allegations of the
CB complaint , which effectuated a denial thereof under Section 102.20, Rules and
Regulations of the Board, Series 6, as amended, effective June 6, 1952. At the hear-
ing, however, with the approval of the Trial Examiner , all parties stipulated in ac-
cordance with Section 102 .40, Rules and Regulations of the Board, Series 6, effec-
tive June 3, 1952, as amended , the following facts which I find to be true:
The Respondent Marlin Rockwell Corporation is a Delaware Corporation en-
gaged in Plainville , Connecticut, in the manufacture of ball bearings . During
the past 12 months, a representative period , the Company purchased raw ma-
terials in excess of $500,000 of which in excess of $500,000 was shipped to its
Plainville, Connecticut , plant from points outside the State of Connecticut; that
during the same period the Company 's sales exceeded $500,000, of which in
excess of $500,000 were made to and shipped to points outside the State of
Connecticut . The Company concedes it is engaged in commerce within the
meaning of the Act and has plants in Jamestown and Falconer , New York,
which three plants including the one at Plainville, Connecticut , are an inte-
grated unit of Marlin Rockwell Corporation.
The foregoing stipulation clearly brings the Employer's business at its Plainville,
Connecticut , plant within at least three of the standards established in 1950 by the
Board for exercising its jurisdiction : ( 1) As an establishment operating as an inte-
gral part of a multistate enterprise ( The Borden Company, Southern Division, 91
NLRB 628); (2 ) one producing or handling goods destined for out-of -State ship-
ment valued at $25 ,000 a year (Stanislaus Implement and Hardware Company, Lim-
ited, 91 NLRB 618 ); and (3 ) as an enterprise with a direct inflow of goods or mate-
rials from out of State valued at $500,000 a year (Federal Dairy Co., Inc., 91 NLRB
638). These Board standards , among others also established in 1950 ( Sixteenth
Annual Report of the Board , 1951 , pp. 15, 16), were recently declared to be the then
current policies followed by the Board and still in effect; See Government memo-
randum submitted to the Supreme Court of the United States ( 33 Labor Rela-
tions Reporter 424, April 5, 1954) in the case of United Construction Workers v.
Laburnum Construction Corporation (decided June 7, 1954), 347 U. S. 656. (See the
Court's footnote 2). See also the Board's press release R-445, July 1 , 1954, new
standards 3, 4, and 6 , declared to apply to all pending cases, and to be set forth in
shortly-to -be-issued decisions of the Board. At the time of this report such decisions
have not yet issued and therefore cannot be cited. ' These very recent changes made
by the Board , however, do not affect the Board 's policy in this case since Respond-
ent Employer's business meets all three of such new standards as now above num-
bered.
Furthermore the Board has heretofore on several occasions exercised its jurisdic-
tion over this identical Respondent Employer . See 19 NLRB 648-650, modified and
affirmed, Marlin Rockwell Corporation v. N. L. R. B., 116 F . 2d 586 (C. A. 2), cert.
denied 313 U . S. 594; 7 NLRB 836; and 5 NLRB 206-208. In these early decisions
the same International Union as is involved here was engaged in collective -bargaining
efforts and activities with this same Employer.
I therefore find that the Respondent Employer is and has been at all material
times engaged in commerce within the meaning of Section 2 (6) and ( 7) of the Act and
the Board has, and should exercise , jurisdiction herein.
IT. THE LABOR ORGANIZATIONS INVOLVED
The CB complaint , in its paragraph numbered 6, and the CA complaint, in its
paragraph numbered 4, allege with reference to the Respondents International Union
and its Local 197 that they "are each labor organizations within the meaning of
Section 2 (5) of the Act," and the CB complaint further alleges they "have their
place of buisness at 241 South Main Street , in the City of New Britain , and State of
Connecticut ." These allegations are respectively admitted by the responsive plead-
"On July 15 , 1953 , in another press release the Board 's jurisdictional standards are
further amplified . The foregoing facts bring the business of Respondent Employer
within standard 3 (a) thereof as an integral part of a multistate enterprise with direct
outflow of $ 50,000 from the pla tit involved , as well as standards 4 and 7. ( Press Release
R-449.)
MARLIN ROCKWELL CORPORATION 569
ings of the several Respondents. Such allegations are deemed to be admitted to
be true by Section 102.20, Rules and Regulations of the Board, Series 6, as amended,
effective June 3, 1952. Furthermore there is abundant evidence in the record,
both verbal and documentary, to like purport and effect as to such status of such
Respondents. Insofar as material hereto, membership in the International Union
is solely through membership in the subordinate Local 197. (See Union's Exhibit No.
U-1, p. 7, section 13 of article 6 of the International Union's constitution and
references therein to local union membership being in both the Local and the Inter-
national Union.)
I therefore find such Respondents International Union and its Local 197 each
to be and at all material times to have been a labor organization within the meaning
of Section 2 (5) of the Act as alleged.
III. CHRONOLOGY OF EVENTS
Most of the facts presented in this record are not disputed or factually compli-
cated. Those facts as to which there is a material dispute in the evidence and those
which otherwise require further detailed consideration will be discussed at length
later herein under appropriate captions. Where material factual contradictions
in the testimony are involved, the following chronology states the ultimate facts
as the Trial Examiner finds them from his resolutions of credibility. General Counsel,
of course, had the burden of proof on all factual issues. The events in substantial
sequence are as follows:
(1) October 23, 1950: The Employer and the Union entered into a collective-
bargaining agreement (General Counsel's Exhibit No. 2) for a period until Sep-
tember 15, 1954. It contained inter alia the following "Recognition-Article I,"
(p. 4), the material sections of which are the following maintenance-of-membership
clause and related sections:
Sec. 2. It is mutually agreed that any employee who is presently a member
of the Union and any employee who after the signing of the agreement joins
the Union must remain a member in good standing of the Union as a condition
of employment throughout the life of this agreement.
Sec. 4. It is mutually recognized that every employee in the bargaining unit
has the right to join or not to join the Union and that no employee will be
discriminated against by the Company or the Union because of membership
or non-membership in the Union.
Sec. 5. The Union agrees that neither it nor any of its officers or members will
intimidate or coerce employees into membership in the Union.
Article II of said agreement (pp. 5, 6) provided for checkoff, which article recited
in substance that payroll deductions would be made by the Employer upon written
authorization of the employee "irrevocable for the period of one (1) year" or until
the expiration of the agreement in question, "whichever occurs sooner," with similar
irrevocable successive periods for subsequent checkoff agreements, unless "written
notice is given . . to the contrary not more than twenty (20) and not less than
(10) days prior to the expiration" of each such 1-year periods, or of each applicable
subsequent collective agreements, "whichever occurs sooner." Article XIII of said
agreement (p. 39) provided the agreement became effective on October 23, 1950 and
It shall remain in effect until September 15, 1953 and shall automatically
be renewed from year to year thereafter, unless at least 30 days and no more
than 90 days notice in writing by either party to the other party is given before
the termination date.
(2) July 1953 to September 11, 1953: The International Union and its Local 197
gave such due notice as article XIII of the agreement provided to the Employer
and thereafter carried on negotiations with it for a new and different collective
agreement to supersede that of October 20, 1950, to which a new and different
local union, No. 338 of Falconer, New York, was a party, the Union thereby elect-
ing to abandon and in fact definitely waiving and abandoning the automatic 1-year
renewal clause of the old agreement.
(3) August 27 and September 4, 1953: The two employees, Raczkowski and
Wolfe, each paid his union dues for September 1953 on the above dates, respectively.
Said dues were not paid under protest for this month. Turner's dues had been
deducted from his pay for September under the checkoff system, which under the
1950 collective-bargaining agreement was taken out of the employee's first pay
each month. (All prior dues from all three had been duly paid and are not in
question.) Turner was then taken off checkoff, which the Union later recognized
in a letter sent to him on November 5.
570, DECISIONS OF NATIONAL LABOR,.RELATIONS BOARD
• (4) September 1, 1953: Employees Turner and Wolfe each gave definite written
notice by letter both to the Union and to the Employer of his resignation from the
Union effective as of that date, which letters were received September 2, 1953.
(5) September 4, 1953: Said employees Turner and Wolfe , together with two
other employees similarly situated , conferred once with the Employer 's representa-
tive, Maikowski , its personnel director , alone and once with both representatives
of the Union and the Employer's said personnel director concerning their respective
resignations from the Union . The Union did not question that they were sufficient
in form and service but did not accept said resignations as legal resignations.
These matters are in dispute and are fully covered under the subsequent caption,
"The three resignations from the Union ." Raczkowski was not present at these.
conferences or any others with the Union , wherein acceptance of his resignation
was discussed.
(6) September 11, 1953: A handwritten memorandum of agreement (General
Counsel 's Exhibit No. 3) was signed by the respective negotiating representatives
of the Employer and the International Union and its Local 197, who realized they
had reached an impasse in negotiations and could not agree on a new contract by .
the time of expiration of the old one ( as they thought on September 15, but
actually at midnight , September 14, 1953 ), by which memorandum they agreed
that "the Labor Agreement between the parties is hereby extended on a day to
day basis until further notice." This "Labor Agreement" definitely meant the '
said bargaining- agreement of October 23, 1950, due to expire at midnight on
September 14, 1953. (For some undisclosed reason another local , No. 338, also'
agreed to the extension of said agreement to which it never was a party.) See
subsequent caption "The hiatus between the two agreements-The Union's abortive
effort 'to bridge the gap.' "
(7) September 14, 1953 : Raczkowski gave unequivocal written notice both to,
the Union and to the Employer of his withdrawal from the Union, effective as of
that date . This was received by the Union the next day , September 15, but it was
never challenged as to form and not challenged as to its legal sufficiency until
November 5, 1953 . See subsequent caption , "The three resignations from the
Union."
(8) September 14, 1953, midnight: Since it extended only "until" September 15,
1953 , the bargaining agreement of October 23, 1950, expired by its own terms at
midnight , September 14, unless it was effectively legally extended from day to day
by the said memorandum of September 11, since the parties had elected not to renew
it for another year under the automatic clause. See subsequent caption , "The hiatus
between the two agreements-The Union 's abortive effort to `bridge the gap.' "
(9) -September 16, 1953, morning: A meeting of the Union 's membership was
called by a printed circular distributed by the Local 's officials at the gate of the
Employer's plant . No such notice was personally given to or received by any of,the
said three employees , Raczkowski , Turner , and Wolfe , nor, in view of joint union
and employer policy not to post information during negotiations, was such notice
ever posted on bulletin boards in the plant . The evidence does not disclose specifi-
cally what the circular contained nor that it stated it was to be an "especially called
meeting" for ratification of the negotiating committee 's day-to-day agreement with
the Employer. See subsequent caption , "The hiatus between the two agreements-
The Union's abortive effort to `bridge the cap.' "
(10) September 16, 1953, 3:30 p. m. to 5 p. m.: At the Union's membership meet-
ing verbal report was made by two of the Union 's negotiators and officers of the said
September 11 extension memorandum and other matters relating to the current bar-
gaining. General blanket approval at the meeting's end was given by those present
to the several reported actions of the negotiating representatives of the Union in
connection with the negotiation of the new contract , including the day-to -day exten-,
sion of the old contract . - The execution of the day -to-day extension of the old
contract was stated generally to those present and the document read to them but
there was no specific motion for or approval thereof by the membership . Raczkowski,
Turner, and Wolfe did not attend this meeting although they were released from
work with all other employees at 3.30 p. in. No minutes of the membership meeting
or any other notice of the action taken at this membership meeting of September 16
is shown by the evidence to have been posted or otherwise given to persons who
were absent from the meeting, including the said three resigned employees. See
subsequent caption , "The hiatus between the two agreements-The Union 's abortive,
effort to `bridge the gap.' "
(11) October 12,-1953.- A new collective -bargaining agreement became effective,
between the Employer and the Union from that day until October 12, 1955. It
provided for a modified form of the union shop, with a specific "escape clause",
MARLIN ROCKWELL CORPORATION 571
providing that employees of the Company who were not union members on that
effective date of October 12, 1953, were not required to become union members at
all. Insofar as material hereto, such provisions are as follows:
Article I, Section 2. (a) Any present employee who is a member of the
Union in good standing on the effective date of this agreement shall, as a
condition of employment, be a member of the Union on and after the thirtieth
(30th) day following that effective date and shall maintain his membership for
the duration of this agreement.
Any present employee who, on the effective date of this agreement, is not
a member of the Union shall not be required to become a member as a condi-
tion of continued employment. Any such employee, however, who, on the
thirtieth (30th) day following the effective date of this agreement is a member
of the Union, or who thereafter joins the Union, must maintain his membership
thereafter for the duration of this agreement.
These terms make a change from the "maintenance of membership" provision in
the former agreement to what the parties have termed a "modified union shop" or
"modified union security clause."
(12) November 11 and 13, 1953, and thereafter on up to time of hearing: Each
of the said 3 employees, Raczkowski, Turner, and Wolfe, at various times on or
or after November 11, 1953, paid his respective union dues for certain months after
September 1953, beginning with the October 1953 dues, all such being paid by each
.of the 3, respectively, under duress and protest after receiving a letter from the
Union dated November 5, 1953, definitely indicating that nonpayment of his delin-
quent dues under the union-shop provision of the new contract could result in his
'discharge and each' being also verbally advised by the Employer that it would be
obliged to comply with the Union's demand. See subsequent caption, "The Union's
'letters of November 5-payment of dues under duress."
- (13) January 5, 1954: President De Parolis of Local 197 demanded of the
Employer's personnel director, Maikowski, that Raczkowski and Wolfe each be
discharged for nonpayment of his union dues. This is in dispute. See subsequent
caption, "The Union's demands for the discharges."
(14) January 6, 1954: President De Parolis admitted his said demand to discharge
employees Raczkowski and Wolfe on January 5 in the presence of the Board's repre-
sentative, Field Examiner Modern, and the Employer's personnel director, Maikowski,
and again demanded that Maikowski discharge the said three employees in Modern's
presence. These events are also in testimonial dispute. See the subsequent caption,
"The Union's demands for the discharges."
(15) March 22, 1954: The Union, by President De Parolis' letter, demanded
employee Turner's discharge for nonpayment of dues and on the following day,
March 23, Turner paid 4 months' back dues from December 1953 to March 1954,
inclusive, under duress. See subsequent caption, "The Union's demands for the
discharges."
A. The three resignations from the Union
Raczkowski joined the Union about January 1950 and Turner was a member when
the October 23, 1950, agreement was executed, while Wolfe had been a member
since December 1949. Therefore each had been a member of the Union for a
considerable period of time before his respective letter of resignation from member-
ship was.written and delivered and was therefore bound to pay union dues under
the 1950 agreement while it was in force, unless he desired to risk his job. Turner
and Wolfe had each sent a letter definitely resigning from the Union to Local 197
on September 1, 1953, effective on that date, with a copy to the Respondent
Employer, all of which letters and copies were duly received September 2, 1953, by
the respective addressees, according to stipulations at the hearing. Likewise,
Raczkowski on September 14, 1953, sent a letter to Lloyd R. Linton, the Local's
financial, secretary-treasurer, unequivocally withdrawing from membership in the
Union as of that date. He also on the same date sent a letter to Henry Maikowski,
.the personnel manager of Respondent Employer, advising of his said withdrawal
from membership in the Union. It was stipulated that each of Raczkowski's two
letters was duly received by the respective addressees on September 15, 1953.
As I view the law, it is wholly immaterial to determine whether the Union actually
accepted any of the three resignations or not. The authorities hereinafter discussed
under the caption, "Statutory right of resignation prevails over restricted right to
resign under union constitution," permit a union member to withdraw from member-
ship at any time. Whether or not a provision in the Union's constitution limiting
such right prevents such resignation by a member, as claimed here by the Union,
will also be fully discussed under the said caption. But "[N]o acceptance of his
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resignation or withdrawal is necessary to terminate his membership when he is under
no pecuniary obligations to his associates." 5 C. J. 1953, Associations, Sec. 67.
Also see 7 C. J. S. 57, 58, Associations, Sec. 24. But since there is a conflict of
evidence as to whether the two resignations of Turner and Wolfe were actually
accepted as legally binding by the Union, and higher authority may possibly not
agree with the Board's ruling in New Jersey Bell Telephone Company, supra, and
the Trial Examiner's opinion here following that case, that the law does not require
the Union's acceptance of the resignation, I have considered and resolved these
testimonial disagreements as follows:
Turner, who worked in the Employer's tool and die department, and Wolfe, who
was employed in its toolroom, together with another employee, one Robert
Stephenson (who was deceased at the time of the hearing), had a conference with
Henry J. Maikowski and R. E. Gamble, respectively the personnel manager and
general manager of the Employer, on September 4, 1953, shortly after each of the
three employees had sent letters of resignation from the Union on September 1,
1953. Management apparently called this meeting because it was quite naturally
worried and disturbed that company stationery had been used in the letters and it
feared others might also show up. It was advised of just one more such letter to
come. An hour or so later on that moring Maikowski again called in the three
employees, together with another one, Joseph Stachowiak, "Big Joe," whom I infer
to be the fourth employee who also had written a letter of resignation. Maikowski at
this meeting also called in representatives of the Local, Micael De Parolis, its presi-
dent, Lloyd Linton, its financial secretary-treasurer, Bertle L. "Swede" Anderson,
the shop chairman, and Frank Camp, the vice president. There is passing mention
in the record of Raczkowski having been at this meeting but I do not find that he
was there as he did not so testify and other evidence indicates his name was only
accidentally misstated by examining counsel. Raczkowski worked in a different
department, the boring inspection department, while those 4 employees who were
interested in resigning as early as prior to September 1, and who were the ones at
these 2 meetings on September 4, 1953, were all employed in the tool and die de-
partment or the tool machine room. Also Raczkowski did not write his letter of resig-
nation until September 14, although he had considered it for a short time prior
thereto and tried vainly to get information from Maikowski which would help him
decide his course of action.
At this second conference of September 4 it was testified by Turner, in substance,
that after a union "pep talk" by De Parolis, those four employees who had written
the letters of resignation agreed to pay the September dues, but all stated definitely
they wanted to get out of the Union; and that Linton, in response to a question from
Stephenson, "And we're out?" said, "Yes . no hard feelings." Wolfe testified
in substance, that the union representatives said there was no objection to the word-
ing or dates of the letter, "we'll accept the letters; and Mr. Linton told us we were
out of the union." Maikowski, the, Employer's personnel director, was also present
and he testified that it was De Parolis, the Local's president, and not Linton, who
"stated that letters would be accepted as such" proper resignations. I have dis-
regarded Maikowski's testimony in toto for reasons more fully set forth under the
later caption, "The Union's demands for the discharges."
Linton was present during the hearing but did not testify. But De Parolis in his
testimony positively denied that he or anyone else on behalf of the Union had ac-
cepted the resignations of Turner, Wolfe, Stephenson, and Stachowiak at the meeting
or at any other time . He discussed the meeting in considerable detail, testifying that
various "gripes" were presented and aired and the Union's position was then stated.
De Parolis testified that he told them' he
"couldn't see any place under the Taft Hartley law that they could get out of
the Union" [and when the escape period provided in the 1950 contract was
brought up I] pointed out to them that that was only for the checkoff. . . . I had
made my position clear, the union position clear; that in our opinion at that time
they could not get out. They asked me if the dates were all right, if they could
take the letters back and change the dates. I said as far as I was concerned, the
dates in the letters were, the way they were mailed, 0. K., with me, but it was only
in regards to the checkoff. I stated that I would hold the letters, and if in the
future I found out under the law they could get out, they would be so notified;
but never did the union at any time ever tell them that they could get out.
De Parolis further testified that neither Linton nor anyone else for the Union told
the four employees they could get out of the Union. As to the question of dues he
said , ". . . I believe they were all paid up. There was no question about the dues."
Since Turner was on checkoff and Wolfe had paid his dues on September 4 for
MARLIN ROCKWELL CORPORATION 573
September, according to the Local 's records , and Wolfe appeared confused between
getting off the checkoff list and resigning otherwise , the circumstances are confirmatory
of De Parolis' testimony in that regard.
In resolving what really took place at this meeting, among the other circumstances
and indicia of credibility , I take into consideration that the officers of the Local
would most probably have insisted on holding the membership in the Union and have
required resignations to be restricted under the strict provision of the constitution
of their International Union . It would be most unusual for a union official to claim
otherwise , unless they were desirous of expelling troublemakers and that does not
appear to be the case here.
Section 17 of such constitution (Union's Exhibit No. 1, p. 10), provides:
A member may resign or terminate his membership only if he is in good stand-
ing, is not in arrears or delinquent in the payment of any dues or other financial
obligations to the International Union or to his Local Union and there are no
charges filed and pending against him. Such resignation or termination shall be
effective only if by written communication, signed by the member, and sent by
registered Mail, return receipt requested, to the Financial Secretary of the Local
Union within the ten (10) day period prior to the end of the fiscal year of the
Local Union as fixed by this Constitution, whereupon it shall become effective
sixty (60) days after the end of such fiscal year; provided, that if the employer
of such member has been authorized either by such member individually or by
the Collective Bargaining Agreement between the employer and the Union to
check off the membership dues of such member, then such resignation shall be-
come effective upon the effective termination of such authorization , or upon the
expiration of such sixty (60) day period, whichever is later.
And article 15 of the International 's constitution (Union 's Exhibit No. 1, p. 38)
provides that the fiscal year begins January 1 and ends on December 31 of the same
year.
It is not conceivable to me that on September 4, 1953 , either De Parolis or Linton
would so voluntarily and readily agree to let the members resign as of September 1,
1953 , when the Union's constitution specifically provides that the only time any
member could resign that year was from December 22 to 31 , inclusive , except under
De Parolis ' interpretation of the checkoff clause of the agreement (General Counsel's
Exhibit No. 2), which in any event could apply only to Turner. Although Maikowski
might appear to be a disinterested witness as to this matter, after due consideration
I have rejected his testimony as already stated , because it was unreliable for reasons
more fully set out under the succeeding caption, "Union's requests for the three dis-
charges." De Parolis gave clear and credible testimony at considerable length
concerning this conversation while the testimony of Turner and Wolfe is more
fragmentary and not fully corroborative of each other . Under the circumstances
of the hearing, which was running late, I infer nothing adverse to the Union 's position
by reason of its failure to call Linton as a witness . While I believe all these witnesses
as to this event were endeavoring to recall it to the best of their knowledge, where
the testimony conflicts , that of De Parolis on this issue conforms more nearly to the
pattern of succeeding events wherein the Union has denied the right of the several
employees concerned here, as well as others , to "escape" from their union member-
ship at any time except during the last 10 days of December in any year . I therefore
find that the Local did not accept the legality of the resignations of Turner and
Wolfe on September 4, 1953 , but waived any objection as to their form and receipt.
No question has ever been raised since by the Union as to such latter matters, either
as regards Turner and Wolfe or as to Raczkowski , except as argued in its brief as
discussed later herein.
It was stipulated that Raczkowski's letter of resignation to the Union and his
letter to the Employer advising thereof were both dated and sent by registered mail
on September 14, 1953 , and received by the respective addressees on September 15,
1953 . Raczkowski never received any letter or other advice from the Union ob-
jecting to the resignation letter's form, nor did he hear from the Union at all on
the matter of his resignation until he received a letter dated November 5 from Lloyd
R. Linton , the Local 's financial secretary -treasurer, informing him that there was
no escape period in either the maintenance -of-membership provisions of the 1950
agreement or the union -shop provisions of the new agreement . The letter and the
similar ones received by Turner and Wolfe are discussed further under the later
caption, "The Union 's letters of November 5-payment of dues under duress." I
therefore also find that there was no objection by the Union as to the form of
Raczkowski 's resignation or its receipt, but only as to its legal effect.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raczkowski admitted on cross-examination that he ran for vice president of the
Local in 1953, and I infer therefrom that his defeat by Vice-President Camp may
have been at least one reason why he desired to resign. Similarly the evidence of
De Parolis indicated Turner was unhappy at being a craft union man in an indus-
trial union where he and his fellow craftsman were badly outnumbered, which Turner
in effect had admitted. De Parolis also testified that Wolfe expressed no reason,
"he just wanted to get out" of the Union. Turner testified that at the September 4
meeting with the Union and management, he "told them I believed in freedom, I
wanted to get out." All of this is immaterial. Any union member who is not in
default of dues can resign without giving, or even having any reason, good, bad,
or indifferent. This right is subject, of course, to the resulting effect upon him of
any then existing union-security clause in the agreement between the union of
which he has been a member and his employer, which result is quite a different thing
from the exercise of the right to resign itself.
But the Union contends, in substance, without waiving its claim that there could
be no resignation until the last 10 days of December under its constitution, that
these members could in no event have resigned except during the period of escape,
which lapse between contracts it denied ever did legally occur. It is argued (brief):
For example, Wolfe and Turner purported to resign from the Union as of
September 1st....' Obviously, the provisions of the 1950 agreement forbade
any resignations at least until September 15. Accordingly, a resignation pur-
porting to be effective as of September 1st could not be given validity without
distorting and violating terms of the contract as well as provisions of the
Act....
It is then urged that Board policy "requires a meticulous and technical observance
of the contract in the current situation."
The Act is subject to liberal interpretation. If any technically strict construction
of the Act is at all permissible it is only with respect to the application of the
exception in the first proviso of Section 8 (a) (3) of the Act which limits, under
one condition only, the individual employee's freedom to refrain from union
activities. There can be no strict interpretation of that fundamental right itself.
Any contract which purports to restrict that right must be carefully considered
and construed in the light of the policies of the entire Act. The Union overlooks the
clear distinction hereinbefore referred to between the employee's right to resign and
the resulting consequences to him if he unlawfully breaches his union-membership
contract. For the unlawful breach he can be discharged at the Union's request, that
is, at any time he is delinquent in his dues under a valid subsisting maintenance-
of-membership agreement. By its inaction, when an employee is in default of dues,
the Union can waive its rights to request discharge, as the provision for the payment
of union dues in a union-shop agreement or request for discharge for default
thereof under an agreement are neither self-operative. But if an employee is not
required to join a union under a modified union-shop agreement such as that here,
because he was not a member on the date it became effective and owed no dues,
he therefore could not legally be discharged or threatened with discharge by an
employer at the union's behest for a nonexistent delinquency.
The Union's contention in substance that any of these said three employees could
not deliver their resignations to the Union at any time but for them to be legally
effective they must have been made during the hiatus between the agreements, is,
in effect, to argue that they must have sat patiently poised with letters of resignation
in hand, waiting to serve them like a watchful feline at a rodent's hole awaiting
,the uncertain time of appearance of the anticipated victim. That is a farfetched
technical doctrine, which expounds its own futility and folly. The Board has ex-
pressly held in New Jersey Bell Telephone Company, supra, that a resignation
from a union made on March 26, 1952, was effective on and after April 5, 1952, the
expiration date of the then current contract between the union and the employer,
which required the employee to maintain union membership during the term of the
contract. I wholly reject said contention of the Union and find that each of said
three employees had effectively resigned from the Union when their respective
letters of resignation were received by the Union, Turner's and Wolfe's on Sep-
tember 2, 1953, and Raczkowski's on September 15, 1953, and that such resignation
continued in' effect into, during, and after the hiatus between the termination of
the 1950 agreement and the effective date of the new October 12, 1953 agreement,
and•were thereafter in effect at all times material to this case.
MARLIN ROCKWELL CORPORATION. 575
B. The hiatus between the two agreements-the Union 's abortive
effort to "bridge the gap"
The prior collective-bargaining agreement effective October 23, 1950 (General
Counsel's Exhibit No. 2), by its own specific terms was to "remain in effect until
September 15, 1953," subject to annual automatic renewal thereafter , unless notice
in writing by either party to the other should be given between 30 and 60 days
"before the termination date."
This October 23, 1950, agreement expired by its own terms at midnight, Sep-
tember 14 , 1953, since the word "until" has a definite lexical meaning in the com-
mon understanding of men, as well as in legal interpretations of the word . Webster's
International Dictionary, Second Edition, Unabridged, 1947, defines the word "until"
as meaning:
During the whole time before ; up to the time of, implying cessation or reversal
at that time ; as, to remain until evening or the end of the month .
In ordinary use, as well as in contracts and other legal documents the question
as to whether until is inclusive or exclusive of the date mentioned generally de-
pends upon the connection or circumstances in which the word is, used. The
weight of judicial decisions is that until is prima facie exclusive ( 111 N . Y. 621;
120 Mass 94; 66 Kan. 512; 10 Neb. 524; 64 Vt. 566; 44 Fed. 369; 119 Ind. 72; 82
Ind. 408).
A similar definition appears in Black's Law Dictionary, Fourth Edition (1951), at
page 1708. The multitude of relevant judicial decisions hold the word to be one of
exclusion or inclusion, dependent on the specific circumstances. See Volume 43
Words and Phrases (Permanent Edition) 406-408, for cases "excluding last day"
and id., 408-410, for cases "including last day." The true rule, as 1 find it from read-
ing a number of cases involving contracts where the fixing of terminal dates is ma-
terial and meaning of the word "until" is in dispute, is that the word "until" is always
interpreted according to the meaning the evidence discloses the parties to the contract
intended to give it, but in the absence of any such evidence, the word is used in
its true meaning as one of limitation and restriction, and prima facie exclusive of the
date expressly stated after the word " until."
In construing an unsigned collective-bargaining agreement, and deciding that it ran
for a year and was therefore void under the Ohio Statute of Frauds, it was held in
Hamilton Foundry & Machine Co. v. International Molders & Foundry Workers'
Union of North America, et at., 193 F. 2d 209, 216 (C. A. 6), cert. denied 343 U. S.
966, that,
The general rule appears to be that the word "until" is usually a term of exclusion,
but will be treatea as a word of inclusion if such was the intention of the parties.
. In the present case, both the past history of annual agreement between the
parties and the current negotiations show the clear intent of the parties to make
collective bargaining agreements of a year 's duration , not for a day less than a
year.
Very extensive evidence had been adduced in that case to show the intention of the
parties in using this word. It had been the custom to continue the yearly contract in
accordance with succeeding annual agreements , and the court so found . In the in-
stant situation, however, no such annual renewal practice had been in effect. The
evidence shows quite to the contrary. The 1950 agreement was effective on October
23, 1950, and ran "until" September 15, 1953. The new 1953 agreement became ef-
fective on October 12, 1953, and runs "until October 12, 1955." Each agreement
contains a clause of automatic renewal for 1 year unless either party gives written
notice some time in advance , without any provision in either for automatic extension
from day to day or for any shorter period than 1 year. I therefore find the 1950
agreement by its own express terms did expire at midnight, September 14, 1953.
General Counsel, however, has assumed the former agreement as having expired on
September 15 rather than on September 14 at midnight , as I have now found. He'
says that "a new agreement could not be reached prior to September 15, the expiration
day of the current contract," and that "the Union received `Raczkowski 's letter of
resignation ' on September 15, the expiration date of the old contract." The Union
has tacitly agreed with General Counsel and has similarly assumed "the termination
date of September 15." The Employer carefully makes no attempt to specify the
date of expiration except by stating the 1950 agreement was to be "in effect until-
September 15, 1953 ." This is the verbatim language of the agreement itself.
I do not believe it is material here, however, to split hairs upon this point. There-
was a definite time interval between the two agreements of.either more than a day and
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15 or 16 hours plus, or of some 15 or 16 hours plus, and no legal fiction can cure this
intervening lapse of time, nor it is contended that it should, it being substantially the
Union's contention that the day-to-day agreement "bridged the gap," or in the least
favorable view, that the approval thereof by the membership sometime after 3:30
p. in. on September 16 retroactively did so. The rule of law as to the nonapplicability
of the legal fiction that the law disregards the fraction of a day is the following:
Where the precise hour when an act is done becomes material in ascertaining and
determining the relative rights of persons, the legal fiction that the law will not
take cognizance of fractions of a day will not prevail as against the truth. When
rights attach from the doing of acts or the failure to do acts, the event must be
regarded and the time of the event is the controlling fact. First National Bank
v. Burkhardt (1879), 100 U. S. 686, 689.
Connecticut follows this rule. See Brainard v. Bucknell (1835), 11 Conn. 16.
There was no continuous sequence in time by the second agreement after the ex-
piration of the first. That the Union itself had fully recognized that the old contract
had ended is evidenced by the testimony of the Local's president, De' Parolis, in
referring to the date of the membership meeting:
It was a couple of days after the expiration of the old contract, one day or the
same day, I don't know which.
The negotiations for a new agreement were also an absolute and practical resolution
by the Union that its old agreement would expire by its own terms. The 1950 agree-
ment's automatic renewal clause for an additional year was not effectual to "bridge
the gap" since the Union had given the notice in writing of a desire to modify it and it
had begun bargaining with the Company upon a new and different agreement some-
time in July 1953. International Representative Merlin D. Bishop testified for the
Union that the Company was notified 60 days prior to September 15 of the Union's
desire to modify the existing agreement. He had utilized a union form letter used
in such cases . There seems to be no substantial disagreement among the parties
therefore that the 1950 agreement actually in fact did terminate. The practical effect
of the day-to-day extension memorandum executed by representatives of the Union
and of the Employer on September 11, 1953, is certainly a strong and practical ad-
mission thereof. The situation is comparable to that in Paterson Parchment Paper Co.
v. International Brotherhood, etc., 191 F. 2d 252 (C. A. 3), cert. denied 342 U. S. 933,
where negotiating on a new contract was held to terminate the old one and was an
abandonment of its automatic renewal clause.
Bishop, who was specially -assigned by the International Union to Local 197 for its
service, had drafted the original copy of the day-to-day extension agreement and was
one of the Union's representatives who signed the final draft. While he testified
without objection by the other parties to the proceeding that it was the common law
and practice in the Union that the union negotiating committee, including the Inter-
national representative, had power to execute an extension of an agreement (with
which incompetent legal conclusion I do not agree, as discussed later herein), it is
important to note that Bishop took the precaution of reading the day-to-day extension
of September 11 to the union membership meeting on September 16 at 3:30 in the
afternoon to obtain their general purported ratification and approval of said extension
in connection with other matters presented to them at the meeting.
Bishop further testified that the said day-to-day extension agreement was signed
by all the negotiators for the Union and also by those of the Employer at the Hotel
Burritt in New Britain, Connecticut, on Friday, September 11, 1953, at 3 p. in. But
there is no evidence that the membership at large were ever advised of such purported
extension that day, or over the following weekend, or even during the next week
until the membership meeting of Wednesday afternoon, September 16. That Wednes-
day morning leaflets were distributed at the plant gate to the effect that there
would be a meeting, but there is no evidence of its having stated as to what objects
the meeting was to be held for or any other information. No copy of the leaflet
was produced by the Union which prepared it, hence I infer it did not so state
in accord with the long-recognized legal presumption that the withholding of better
evidence than that produced is that it might not operate in favor of the party with-
holding it. Taylor v. Riggs (1821), 26 U.S. 591.
Although Raczkowski, Turner, and Wolfe each testified in substance that he had
no knowledge of the membership meeting or its purposes, I infer since each went-
to his home from the plant at the hour of 3:30 p. in. when other employees went to,
the meeting, that each knew some sort of a union meeting was being held. I,
cannot and do not infer, however, in the entire absence of evidence on the subject,
that they'knew of any particular items of business which were to be transacted'
MARLIN ROCKWELL CORPORATION 577
at the meeting. The leaflet did not so advise, so far as the evidence discloses, and
even had he read it, not 1 of the 3 would have been any the wiser. Since each
of the three then considered himself out of the Union due to his prior resignation, he
would in any event have had no reason to go to the meeting. And there is no evidence
that any of the three made any inquiry or received any information as to the
specific purposes for which the meeting was to be held. It would therefore be based
on pure conjecture to find that any 1 of the 3 knew of the September 11 day-to-day
extension agreement, which had not been communicated to the membership at
large by the negotiating committee. It rather is to be inferred and found to
the contrary, since the plant's bulletin boards were never used during negotiations
by common agreement between the Union and the Employer and it is undisputed
that no copy of this day-to-day agreement was ever posted and a copy of the leaflet
was never produced-or offered in evidence by the Union which prepared it. I
therefore find that none of the three knew anything about the September 11 day-to-
day extension or had any reason to be put on notice about it.
If the committee negotiating the new agreement had the so-called "common law"
authority to extend the existing agreement from day to day there seems to have
been but little point in presenting it to the membership for a merely formal ratifica-
tion. The Union, I infer, knew that it could have included in the 1950 agreement a
clause legally extending its terminal date indefinitely. Boeing Airplane Co. v. Aero-
nautical etc . Lodge (D. C. Wash., 1950), 91 F. Supp. 596, 602-603. But it made
no such agreement and if it found itself in a "jam" for lack of time, it had apparently
made no prior attempt to avoid it by such a clause in its agreement. But I find
Bishop, although long holding an important union position, endeavoring to cure
such oversight now poses an unfounded and incompetent proposition of union law
in his opinion testimony about the so-called "common law and practice" in the
Union, that the union negotiating committee could do anything but commit the
Union to a new contract or a strike "without coming back to the membership,"
and "had authority and has acted on an extension of the agreement without going
back to the membership for approval." His testimony was a clever effort to "bridge
the gap" by his conclusions where no contract bridge existed, and I infer there-
from and from his long experience in union negotiations he felt it necessary to do
so. The Board, however, is not bound by the Union's interpretation of its own
rules but looks to the Union's constitution and laws itself in interpreting the same.
Radio Officers' Union, et al., 93 NLRB 1523, 1526, affd. 196 F. 2d 960 (C. A. 2), affd.
347 U. S. 17. In view of certain provisions of the Union's constitution, I find this
pure conclusion, although purportedly stated as a fact is not binding on the General
Counsel.
As already stated the local has no constitution of its own and was wholly gov-
erned by the constitution of the International, both as to the latter's authority and
its own. This union constitution was received in evidence over the General Coun-
sel's objection as Union's Exhibit No. 1. Attorney Lundborg for the Employer, at
that time pertinently remarked, in part, on the record, "It may be interesting read-
ing.... . And I find it so. The pertinent provisions of the document are:
Article 3. Constitution. This Constitution . . . shall be the supreme law
of the International Union.
Article 6. Membership. Section 2 . All applicants for membership in any
Local Union of the International Union shall fill out an official application
provided by the International Union . . . and sign a promise to abide by all
laws, rules and regulations and the Constitution of the International Union . . .
Article 19. Contracts and Negotiations. Section 3. No Local Union Officer,
International Officer or International Representative shall have authority to
negotiate the terms of a contract or any supplement thereof with any employer
without first obtaining the approval of the Local Union. After negotiations
have been concluded with the employer, the proposed contract or supplement
shall be submitted to the vote of the Local Union Membership . . . at a meeting
called especially for that purpose; should the proposed contract or supplement be
approved by a majority vote of the Local Union or unit members present at the
meeting, it shall be referred to the Regional Director for his recommendation
to the International Executive Board for its approval or rejection. In case
the regional Board recommends approval, the contract becomes operative
until the final action is taken by the International Executive Board.
Article 36. Local Union Officers. Section 7. The Executive Board shall
be empowered to represent the Local Union between meetings of the Local
Union when urgent business requires prompt and decisive action. In no case,
however, shall the Executive Board transact any business that may affect the vital
interests of the Local Union until the approval of the membership is secured . . .
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under fundamental legal principles there can be no "common law and practice"
which contravenes the constitution of a sovereign government. And similarly in a
democratically organized unincorporated association, its specific and supreme consti-
tutional provisions override any contravening custom, here an improper and illegal
so-called "common law' and practice." The officers of a local union and the de
jure or specially appointed committees thereof cannot legally perform acts which
are specifically forbidden by the constitution of their supreme body. Nor can an
International officer or representative do so.
The foregoing provisions of the International Union's constitution bind all of its
Local's members and are the supreme law of the Union. Reasonably and fairly
construed they provide clearly that in order to negotiate any contract there must be
prior authority from the membership of the Local Union affected. This is true of
any supplement to an existing contract. While the day-to-day informal written
agreement was not labelled as a "supplement," it could not have any other character.
It contained no terms of its own, was meaningless by itself and only extended on a
day-to-day basis the existing "Labor Agreement" of October 23, 1950, between Local
197 and the Employer. That it was drafted in haste and with considerable doubt
and confusion is attested by the fact that it was signed for Local 197, along with
the Local's president and other negotiators for the Local, by at least one stranger to
its organization, one "Vaughn Rudy, Pres.," whom I infer to be president of ' the
other Local 338 at Falconer, New York, since Local 197 could legally have only one
president, De Parolis. While interested in the new agreement under negotiation,
this other president surely had no authority to act in this matter for Local 197 and
why he had to negotiate fof this extension of time for Local 197 is not explained
by any witness.
Webster's International Dictionary, Second Edition, Unabridged, 1947, defines the
word "supplement" as "specif., a part added to, or issued as a continuation of a book
or paper, to make good its deficiencies, correct its errors, or provide special features
not ordinarily included." I find nothing in special dictionaries of labor terms that
distinguishes between an extension or renewal and a supplement, or gives a different
and special meaning to the temporary expedients of day-to-day extensions from that
resulting in ordinary contracts. An extension or renewal of a contract is by its very
nature but a special or limited form of a supplement.
There was also definitely no prior approval of the day-to-day extension agreement
of September 11 by Local 197 as required by said article 19, section 3. Nor was
there any meeting of the membership of Local 197 "especially called" for that purpose
to ratify and approve the proposed supplement or extension as required by that
section. The evidence does not show the leaflet so advised. The Union has singu-
larly most loosely violated the plain provisions of its own constitution, while now
insisting that the resigned members had not complied with technical niceties as to
the timing of their resignations. The Union utterly failed to "bridge the gap."
But we are concerned here only with the effect of such unauthorized and illegal
acts as they apply to the Charging Parties. If Raczkowski, Turner, and Wolfe each
had resigned effectively, as I have already found prior to September 16, he could not
be bound by any unconstitutional local membership approval on September 16, to
which Local he no longer belonged. Nor even had he continued as a member,
would he have been bound by an unconstitutional ratification of something he
knew nothing of, unless he had ratified the illegal act by voting for it or had otherwise
become es opped to object to it.
The law as to calling special meetings is stated by 4 Am. Jur., Cum. Supp. 1953,
p. 31, as follows:
Members of a voluntary association must always be given notice of a special
meeting even though the constitution and bylaws are silent on the matter. In
the absence of a formal rule prescribing the requirements of a notice of special
meetings, such notice must be reasonable and must be given in a reasonable
manner. . . . Notice of a meeting of a voluntary association must include the
time, place, and object of the meeting. In designating the object of a voluntary
association meeting, the notice must specifically set forth the business to be
transacted at such meeting.
I find that the day-to-day extension of September 11, was illegal and void as to
each of the 3 resigned employees, and likewise that the purported membership rati-
fication was illegal and void as to each of the 3 and had no effect upon his already
terminated membership. I find there was certainly a gap between the 2 agreements,
an unfilled void, at least from midnight September 14 until sometime after 3.30
p. m , September 16, 1953, a period of over 11/z days, although the failure of its
membership to ratify the day-to-day extension of September 11 appropriately under
MARLIN ROCKWELL CORPORATION 579
the Union 's constitution as to these 3 Charging Parties most evidently left as to them
a much longer interval , that is until October 12, some 27 days after the old agreement
had expired before the new one became effective.
C. The Union's letters of November 5-payment of dues under duress
Following the events relating to the resignations of Raczkowski , Turner, and Wolfe
in early September 1953 and the respective payments of their dues for that month,
none of them heard anything from the Union until November 5, 1953, when each
received from Lloyd R. Linton, the Local 's financial secretary -treasurer , letters of'
,substantially identical tenor ( except that in Turner's letter his attention was, in
substance , invited to - the fact that his letter of resignation had not mentioned his
having removed his name from the checkoff , but that Linton had officially instructed
the Employer to remove his name from the checkoff list and that Turner could renew
his checkoff by signing a new checkoff card rather than to pay dues in person).
Each letter addressed the resigned member as "Dear Brother ." and the material
substantially identical paragraphs in each letter stated , as in the letter to Wolfe,
General Counsel's Exhibit No. 6:
This is to inform you that under the Maintenance of Membership provisions
of,the old contract , and the Union Shop provisions of the new contract, there
is no escape period in which to drop out of the Union.
Therefor [ sic], the Inteinational Union and the Local Union have instructed
'me, as Secretary -Treasurer of the Local Union, to ask you to pay your dues up
to date not later than November 13, 1953.
These letters, while guised by brotherly salutation, were definite notices to each
of the three employees that the International Union had been informed by and had
taken the view of the Local, and gave the employee no alternative but to pay dues
or lose his job because there was "no escape period in which to drop out of the
Union." They were in fact ultimatums to pay dues or be discharged. From other
evidence in the record as to correspondence between the Local and the Interna-
tional, and its general counsel, as well as that Raczkowski had personally written
Walter Reuther, the International's president about his own case, it is clear that the
matter had become one of grave doubt and serious concern to the Union. The
Local's president, De Parolis, quite frankly admitted on the stand that during the
subsequent discussions he had with management about the said resignations on
one or two occasions I did remark, in my opinion, I thought it would
have been better if "we negotiated a complete union shop contract, to Mr.
Maikowski.
The said letters of November 5, 1953, were certainly so phrased that they could
not be misunderstood by anyone familiar with the background.
The next following paragraph of the letters after those above quoted plainly told
each of the three employees he should pay his dues up to date (that is for October
and November), by November 13, 1953. It stated in substance. that there was no
alternative to this, except to "sign a checkoff card" (which was merely a payment
of such dues by another method). That the meaning of this language is that such
employee must pay up or lose his job is too patent for argument, and I do not
understand the Union contradicts such effect of the letters it so wrote.
And neither the said employees nor the Employer read any other meaning into
them. Raczkowski on November 11, and Wolfe and Turner on November 13, upon
inquiring of Maikowski as to the employer's position, in the light of the letter he
had received from the Union, was told in substance that if the Union requested it,
such employee would be discharged if he did not pay his union dues. Further-
more,, Turner testified that he was called into a meeting on November 16 by
Maikowski. De Parolis, and Linton, where he was told by De Parolis that both
the head office of the International Union and the Board's Boston Office had told
Bishop there was "no escape " This was not denied by De Paroles. Turner was
also asked to join the checkoff again, but refused to.
- Each of the said three employees was only in default for October and November
at the time the Union's letter of November 5 was sent and received. Each, how-
ever, then paid his respective delinquent dues shortly thereafter under protest in
one form or another and so continued paying them to about the time of the hear-
ing because' of said letter of the Union and Maikowski's said statement. I there-
fore'find that all of such dues after those for September 1953, were paid involun-
tarily by such employees respectively at the rate of $2.50 per month under the
duress of threatened loss of employment.
387644-56-vol. 114 -38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record of the Union's financial secretary shows that Raczkowski paid his dues
as follows:
November 11, 1953, for October and November 1953
January 16, 1954, for December 1953
February 19, 1954, for January 1954
March'25, 1954, for February 1954
April 27, 1954, for March 1954
The increasing reluctance and delay shown by the pattern of his payments strongly
verify Raczkowski's strong position of protest. At the time he testified at the
hearing, May 17, 1954, he had not yet paid for April or May.
Between November 9 and 13 Wolfe testified that Marenna, the union steward,
Cierski, a member of the union bargaining committtee, and Falconari, a trustee, had
each told him, "Pay up or get fired," the last two having done so on several occasions,
and that Cierski also told him to "get out."
Turner's record is also quite indicative of his nondesire to pay, and shows his
dues payments were made as follows:
November 16, 1953, for October and November 1953
March 22, 1953, for December 1953 and January, February and March 1954
He later paid April dues but the date thereof does not appear in the record. At
the time of the hearing he had made no further payments. Since he paid only
$10 rather than $22.50 demanded of him on March 22 by the Union and the $10
covered the $7.50 back dues for December, January, and February plus March
dues not included in the demand, and this $10 was accepted, I infer and find that
the $15 balance was for a fine which the Union forgave when he paid up his dues,
although on the Union's motion, I struck out Turner's own conclusion to that
effect.
D. The Union's demands for the discharges
Despite some specious argument in the Union's brief indicating to the contrary,
there can be no factual doubt as to the Union's having requested the discharge of
employee Turner in March 1954. The Local's president, De Parolis, frankly con-
curred in the evidence presented by General Counsel to the effect that Turner's
discharge was definitely requested by the Union on March 24. De Parolis wrote
a note definitely so requesting, which was delivered to the Employer and then for-
mally typed up but never signed by De Parolis. He testified:
I never requested the Company to discharge Raczkowski or Wolfe. In a
statement, I did ask them in March to discharge Mr. Turner. . . . I wrote
out a statement on a note which he (Maikowski, personnel director for the
Company) in turn gave back to me, and I asked the girl to type it up.
Q. And that was the request that Turner be discharged for failure to pay
his dues?
A. That's right.
It is immaterial to this finding that the Union gave careful consideration to Turner's
long record of employment and that after he had paid up the back dues under pro-
test, he was recommended by the Union for continued employment by the Employer.
The request to discharge was a fait accompli.
As to the alleged demands of January 5 and 6 for the respective discharges of
Raczkowski and Wolfe, there is a definite conflict in the evidence. General Counsel's
attorney, endeavoring vainly for a long time to solve the riddle of these disputed
issues by "plowing with another's heifer," as it were, over and over again, was
liberally permitted by the Trial Examiner over vigorous union objections to refresh
the memory of the witness Maikowski, the Respondent Employer's personnel director,
concerning the events of January 5, 1954, in Maikowski's office, when and where
General Counsel contends that De Parolis definitely demanded the discharge of the
two said employees for failure to pay their dues. Maikowski, after first stating that
De Parolis had requested Wolfe's discharge in early November, later repeatedly in-
sisted, in substance, however, that he could not recall any such positive request on
January 5 by De Parolis to discharge either Wolfe or Raczkowski, but that De Parolis
did state he "would ask the Company to terminate these people if they did not pay
their dues." All of this testimony was in the same vein, both on direct examination by
General Counsel and on cross-examination by the Union's attorney. He even re-
pudiated his direct testimony that Wolfe's discharge had been requested in early
MARLIN ROCKWELL CORPORATION 581
November. On recross-examination by the attorney for his Employer, however, he
yielded a somewhat different answer to extremely leading, but proper, questions:
Q. And Mr. De Parolis had advised you they were delinquent in dues, had
he not?
A. Yes.
Q. And he told you, did he not, that he was demanding their discharge if they
did not pay their dues?
And after objection by the Union was overruled,
The WITNESS: Yes.
Right afterward on recross-examination by the Union's counsel the following testi-
mony appears:
Q. Did Mr. De Parolis at any time ever request to you that by a certain date
in the calendar year the Company discharge Wolfe or Raczkowski?
A. Not that I can recall.
The Trial Examiner rejects Maikowski's testimony in toto. The witness' motives
are not clear, but the Trial Examiner infers from the evasive answers given on his
direct examination , that since Maikowski dealt almost.daily with the Local's presi-
dent, De Parolis, on grievance matters, he did not desire to antagonize him, Maikowski
having been present on January 6 when the evidence shows the sudden anger of
De Parolis against the Board's field examiner, Modern, occurred. And Maikowski's
shifting vacillation as I saw and heard him squirming in embarrassment on the stand,
with a little occasional show of bravado when pressed, leaves his testimony too vague
and uncertain to warrant my attaching any credibility to it. It merely evidenced
his general inability to make positive decisions by himself, otherwise evidenced by
Raczkowski's uncontracted testimony that after repeated requests by him of Maikow-
ski for information as to the dates of the escape period, he could never get an answer
and was always put off. The witness was a very pleasant and friendly young man, but
evidently overburdened with a new position of great responsibility which worried him
and he was laboring under some general confusion between facts and conclusions.
But after claiming he had no definite recollection as General Counsel's witness, he
was willing to answer agreeably to any friendly leading question asked by his Em-
ployer's attorney or by the Union's counsel. The demeanor of the witness conveyed
the definite impression to the Trial Examiner that he was caught in the middle of
an important and difficult problem far too deep for his experience, which troubled
him greatly and that he was seeking the easiest way out, the earlier, the better. He
was such an embarrassed witness that he deserved sympathy, but he impressed me
that he was a person so lacking in firmness and certainty in this situation that I would
not desire important affairs of my own to be determined upon such testimony, and
therefore I will not decide the affairs of others thereon. His testimony in this case is
to my mind of such doubtful character that I consequently disregard and reject it
on all disputed matters in this proceeding, irrespective of which side it favors, and
certain parts of it do favor the General Counsel and other parts favor the Union.
In view of his evident surprise and his obvious apprehension either that this specific
testimony of Maikowski's as to the alleged demand for discharge by De Paroles on
January 5 was without benefit to General Counsel, or that if credited favorably to
the Union by the Trial Examiner, it would be destructive of the General Counsel's
case upon this issue, the attorney for General Counsel, in strict accordance with the
Board's rules, promptly by long-distance communications obtained the permission of
the General Counsel in Washington to present the testimony of Ernest Modern, a field
examiner in the Regional Office of the First Region in Boston , Massachusetts.
Modern had theretofore investigated the case. As aptly pointed out in the Union's
brief, by General Counsel's Administrative Ruling in Case 868, December 15, 1953,
33 LRRM 1137-1138, if no request by the Union for a discharge had ever been made,
no complaint should have issued. Certainly under the language of the Act itself it
was vital to the successful prosecution of such. alleged violations in the cases at bar
that definite evidence sustaining the claim that the Union requested the discharges
had to be adduced. It was the very gist of the alleged violation.
Field Examiner Modern duly appeared the following day as a witness and testified.
I infer and find that during his investigation of the case on December 30, 1953, in
conference with Maikowski and Lundborg, the company attorney, Modern did not
learn anything of competent value as evidence herein. And I therefore do not consider
any of his preliminary background testimony concerning hearsay statements as to
what Maikowski told him to be competent evidence, and make no findings whatso-
ever based thereon.
582 DECISIONS OF. NATIONAL "LABOR RELATIONS BOARD
But Modern testified that on his later visit on January 6, 1954, to Maikowski's
office to obtain a copy. of the interim agreement of September 11, 1953 , as well as
to see the Local 's officials about certain other phases of the case, he learned that a
demand for discharge had been made on the previous-day, January 5, 1954. After
first obtaining a copy of the interim agreement from Maikowski he then requested
the presence of the Local's committee. De Parolis, and three other members of the
Local, Cierski, Falconari, and Marenna, were then called in, by Maikowski. Other
evidence shows Marenna was the Local's steward, Cierski, a member of the Local's
negotiating committee and Falconari , a trustee of the Local . All the persons named
met in a nearby conference room, De Parolis coming later than the others. He later
sent for Linton to bring some records. After outlining the preliminary discussions
had with the union representatives, Modern then further credibly testified:
I asked Mr. De Parolis, "I understand that you have yesterday made a formal
request for the discharge of the two"-meaning Mr. Raczkowski and Wolfe at that
time-and he said, "Yes, that is so." And then he turned to Mr. Maikowski,
who was sitting next to me at the table-Mr. De Parolis was sitting across the
table-and in somewhat formal language he said, "And I'm instructed to request
that they be fired."
This last sentence concerns events of January 6. I find this to be a then present
iequest for the discharge of said three employees.
Modern then related other matters, irrelevant to this particular issue, which trans-
pired at the meeting. He was extremely fair and reserved in his testimony, never
volunteering and carefully correcting any misstatement he had made, and frankly
stating that he did not recall certain dates, names, and conversations. It was Modern's
training and his sworn duty and business to fairly and impartially make and report
investigations. He had no duty to prosecute cases. He had been employed by the
Board for 10 years. The propriety of the instant complaints was appropriately sub-
mitted by the Regional Director through channels to the General Counsel's office in
Washington early in January and evidently not decided there until shortly before
April 22, when the present complaints were filed. Modern was not the prosecution's
proponent , as far as the evidence indicates , nor was he a volunteer witness at the
hearing. He came to the hearing only under special orders from the General Counsel
in Washington and then testified with admirable restraint only as to matters inquired
about , meticulously separating the things he could remember from those he could
not. While his testimony must be judged like that of any other witness, and I have
not credited him just because of his official position with this Board, I have carefully
considered and weighed his testimony, both by itself and in comparison to the directly
contradictory evidence of De Parolis, and find that Modern had a better recollection
of the events and conversations of the meeting than did De Parolis.
While De Parolis agreed substantially with Modern as to several events of the
meeting of January 6, he sharply disagreed, however, as to the alleged statements
attributed to him by Modern:
Q. Now, there was some testimony from Mr. Modern earlier in the day that
you were supposed to have requested the discharge of these two people. Did you
ever make such a request?
A. No, sir, I never made that request.
Q. In front of Modern or in front of anyone else?
A. I never made that request in front of anyone. I always phrased it that if
they got behind sixty days, then I would ask the Company to fife them.
Asked as to recalling his alleged conversation on January 5 with Personnel Director
Maikowski , on cross-examination he said:
No, I don't recall. I go in and out of that office probably ten or fifteen times
a week, and I can't tell you what days I go in and what I talk about on those
certain days..
He further on cross-examination positively denied telling Modern that he had
instructions to discharge Wolfe and Raczkowski. He also denied having told Modern
he had asked Maikowski for their discharge, then stated what he did actually say:
I told Mr. Modern that if the time came they were beyond sixty days, [de-
linquency in dues] I would request the Company to lay them off, and Mr. Modem
asked me what I would do if the Company didn't do it, on the way home. I told
Mr. Modern I'd take *charges against the Company....
De Parolis testified that the Local does not have any bylaws of its own but is
governed by the International Union 's constitution. That document provides with
MARLIN ROCKWELL CORPORATION 583
reference to nonpayment of the monthly dues by members of a local that they shall
be automatically suspended when in arrears "which in no case shall be more than
two (2) calendar months." (Union's Exhibit No. 1, p. 5, article 16, section 5.)
There is no prohibition against a Local 's suspension of members for dues arrearage
at any time within the 2 months ' period, nor is there any provision either of the con-
stitution or of the collective -bargaining agreement prescribing any stay period for a
member in default of dues, during which time the Union cannot request a defaulting
member's discharge. It is true that De Parolis insisted the Local had a rule that it
would let dues run for 60 days, but this rule was not a fixed written rule. It was only
one "of thumb" at the best, because in the official letters of the Local's financial.
secretary-treasurer dated November 5, the three employees charging herein, Turner
having gone off checkoff, were requested to pay up by November 13, when they were
paid up through September , so they were only 36 days in arrears on November 5 and
would only be 44 days in arrears by November 13. And his testimony that several
other employees did not have to pay until they were 75 days in arrears impresses me
to believe that the Local had no fixed rule at all, since it paid no, attention to the
limitation of the International constitution in such regards. Even Turner was given
far more leeway and consideration than Raczkowski and Wolfe. When a member paid
his dues apparently depended on who he was and where he stood in the graces of the
Local's officers. Of course the Local Union itself could exonerate, that is, wholly
forgive and relieve a member's dues under the constitution , article X1II, section 5',
but that has no application to the foregoing 'situations . ( In reaching this finding I have
completely disregarded any testimony by Maikowski that De Parolis told him that
each of these 3 men's employment should be terminated if they were 30 days in
arrears, which was inconsistent with other testimony of Maikowski: )
' De Parolis, 'like all the three other employees of the Respondent Company who
testified in this case , Raczkowski , Turner, and Wolfe , the' Charging Parties seeking
relief from union membership , impressed me with strength of character , intelligence,
sincerity , frankness , and honesty . His basic reason , in substance , for his denial as to
the alleged request for discharges , was that there was a waiting period of 2 months
before a member in default became liable to suspension . This had some measure
of logic in it until tested by the foregoing irregularities of the Local 's dues col-
lectors without any written Local constitution or bylaws to govern them and their
disregard of the International's constitution . But De Parolis' recollection of the
meeting of January .6, 1954, unlike that of Modern , who had no reason to be
angry (and it not being disclosed by the evidence that he had been impassioned or
excited at that time ), was in my opinion , somewhat beclouded because of his anger
at that time because of being affronted by what he believed to be the improper
intrusion of Modern upon the Union 's members at the plant without his, De Parolis',
permission , as president of the Local . He testified on redirect examination that the
other union men were already in the room with Modern when he came in.
De Parolis later on sent for Linton . De Parolis freely and voluntarily testified then,
that:
Mr. Modern didn't ask me for any meeting . I came in there , and noticed
three people from the machine room , and I asked him-well, if you want to
know what I asked him, I said, "What the hell are you doing here with three
of my people from the machine room without my authorization "; and he told
me that he was impartial , individual , fishing for information ; that 'he'd be
doing the same thing for the Union if the Union had wrote to the NLRB,
and I stated I couldn 't understand how he could be fishing for information when
he could deliberately pick out three individuals from one department and have
them there -without my knowledge, and I was told to cool off a little bit... .
Q. (Cross-examination.) You cooled off, did you?
A. No, I dont think I did.
In comparing the testimony of.Modern and De Parolis, I am forcefully reminded
of their startlingly different characteristics , and in order that this otherwise "lost
evidence" or "the evidence words 'do not preserve," as Judge Learned Hand has
recently so succinctly labeled it (N: L. R B. v. James Thompson & Co., 208 F 2d
743, 746 (C. A. 2)), may not be overlooked in the review of these credibility
findings, I noted that Modern was a rather small man of middle age , careful,
cautious, and entirely unperturbed, for 10 years a trained investigator and field
examiner with the Board. On the other hand De Parolis was a large, strong,
and somewhat younger than, and one of very positive and vigorously emphatic
personal views. He, himself, frankly brought 'out' the circumstances of his' own
anger and vexation at the meeting with Modern-on January 6, and it's quick rise.
And on cross -examination he admitted its slow ' decline. Modern was gentlemanly,
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fair, and reasonable in his conduct at that meeting . I am reminded of Lowell'&
words in The Biglow Papers, "The one that first gits mad's most oilers wrong."
And after nearly 40 years of substantial activity in the legal profession , dealing
with thousands of witnesses , in court and out , I have observed that in various types
of controversies , the person who has been able to maintain his solid equilibrium almost
always has a far better and more accurate recollection of the matter in controversy
than the one who raises the tempest . A fit of anger is' like strong liquor-it unbridles
the tongue and then obliterates the memory of what has been spoken.
I therefore conclude that Modern 's version of the disputed conversation of
January 6, 1954 , is the credible and correct one and find that De Parolis, as president
of the Local and on its behalf and that of the International Union , on both January
5 and 6 , 1953, demanded of the Company that Raczkowski and Wolfe be each
discharged for failure to pay his dues.
E. Modern's testimony competent
The Union duly objected and preserved its objections to Modern 's testimony
as to the statement of De Parolis on January 6 having admitted requesting the
two discharges on January 5 as hearsay . Its brief still so contends but cites no
authority . But De Parolis was president of Local 197 at all times material to this
case . Article 38, section 1, of the International Union's constitution (Union Exhibit
No. 1, p. 80), insofar as material , provides:
Duties of Local Union Officers
President
It shall be the duty of the President to . . . enforce the provisions of
the Constitution .. .
Since his executive duties were so broad and sweeping it could scarcely be contended
(and apparently is not so contended) that De Parolis had no authority to enforce
the provisions of the constitution relating to the payment of dues from the Local's
members and all matters relevant thereto. And certainly he was the proper official
to deal with the Employer with relation to obtaining discharges of delinquent mem-
bers. His admission to Modern on January 6 was not that of an agent with limited
and terminated authority but that of an officer of the Union still fully clothed with
continuing authority. Such statement was made by him while still its president the
very next day after the occurrence , at an investigation conducted by the Board,
an Agency of the Government, fully empowered by law to make such investigation
and inquiry . It was a vicarious admission binding the Union concerning a matter
De Parolis had authority over, both when he made the alleged statement of January
5 and when he admitted it to Modern on January 6. It was not a mere hearsay
narrative transaction of past events by an unauthorized person . He gave a specific
answer to competent and early inquiry in a proper investigation . It was therefore
admissible in evidence under the long-established principle enunciated in First
National Bank v. Stewart, et al., Administrators , (1885), 114 U. S. 224, 228-229,
where it was contended in a suit against the bank to recover the value of certain
certificates of stock owned by the administrators' decedent McMillan in his lifetime:
That a conversation which took place two months after the payment of
the note, between McClure [ the Bank 's cashier] and Hyde [the holder of
the collateral security for the note ], in reference to the purchase by the latter
of the twenty shares of stock was wrongly received in evidence.
. It was offered to show by the declarations of its cashier that the bank
did not when the declarations were made claim any general or special property
in the stock , but in effect admitted it to be the property of the estate of McMillan.
The declarations made by an officer or agent of a corporation , in response to
timely inquiries , properly addressed to him , and relating to matters under his
charge , in respect to which he is authorized in the usual course of business to
give information , may be given in evidence against the corporation.
See also Pan-American Petroleum Co. v. United States, 9 F. 2d 761, 769 (C. A. 9),
affd. 273 U. S. 456, one of the celebrated cases involving Doheny, Secretary of the
Interior Fall , and Secretary of the Navy Denby. There the declarations of Doheny,
as president of the company, were held to bind the Company:
There can be no question but that the declarations of an officer or agent of a
corporation , even though they consist of a narrative of past facts, may, under
appropriate circumstances , be admitted in evidence against the corporation, nor
does the admissibility of such declarations necessarily depend upon the length
MARLIN ROCKWELL CORPORATION 585
of time that has elapsed between the occurrences and the declarations, 10
R. C. L. 98. . . . The declarations were also against the interest of the declarant,
and no other means of obtaining the evidence were available to the plaintiff.
The circuit court then quoted approvingly from Rosenburger v. H. E. Wilcox & Co.,
(1920), 145 Minn. 408, 177 N W 625, 626, as follows:
The fact that this transaction occurred some time after the contract of sale of
the stock, and that the statement was an admission as to facts existing when the
contract was made, is not decisive. An agent of a corporation, if acting
within the scope of his authority, may make an admission in behalf of the cor-
poration as to a past transaction just as a natural person or his authorized
agent may do so.
The Act, Section 10 (b), requires unfair labor practices proceedings "so far as
practicable," to be conducted "in accordance with the rules of evidence applicable
to the United States District Courts," thereby recognizing that liberality of application
of the rules of evidence is sometimes necessarily required in these particular ad-
ministrative hearings. And Senator Taft specifically stated that the above-quoted
phrase, "so far as practicable," "gives to the Trial Examiner considerable discretion
as to how closely he will apply the rules of evidence." (93 Cong. Rec. 7002 June 12,
1947, Legislative History of the Labor-Management Relations Act, 1947, Vol. 2, p.
1625.)
The modern rule of vicarious admissions is that:
As against a party, a statement [is admissible] which would be admissable if made
by the declarant at a hearing if . . . the statement concerned a matter within
the scope of an agency or employment of the declarant for the party and was
made before the termination of such relationship. Rule 63 (9), p. 202, Uniform
Rules of Evidence, drafted by the National Conference of Commissioners on
Uniform State Laws, approved in August 1943 at Boston by the Conference and
also by the American Bar Association.
See also Rule 508, p. 249, et seq., American Law Institute's Model Code of Evidence,
1942.
And statements of a party are themselves independent and substantive evidence
against a party. U. C. T. v. Green, 43 F. 2d 499, 501 (C. A. 9), quoting Jones on
Evidence, Secs. 2412, 2414. And see Richardson on Evidence (7th Ed.), p. 299,
which says:
The weight of authority now holds that admissions are received as probative
evidence of facts in issue sufficient to establish a cause of action or defense.
The Union here at bar in 1953 had 1,184,507 members, a number far greater than
the population of any one of 14 of the 48 sovereign States of our National Government
or of the District of Columbia. It had 1,150 locals. (Figures as to membership and
locals from Directory of Labor Unions in the United States, 1953, Bulletin 1127,
U. S. Department of Labor, Bureau of Labor Statistics, which are hereby officially
noticed.) This Union is not a small loosely bound local club but a large and
highly organized legal entity dwarfing most private corporations in size. Unions for
more than 30 years have been compared to corporations by the judiciary. See
United Mine Workers v. Coronado Coal Co. (1922), 259 U. S. 344, 385-389; and
U. S. v. White (1943), 322 U. S. 694, 701-703. The Act itself (Sections 2, 10,
11, 12, 208, and 301) has made unions legal entities alnenable to the Act. And Sec-
tion 2 (13) thereof specifically makes the common law of agency applicable to them.
For other Federal legislation making unions legal entities see footnote 5, 322 U. S.
703. To hold here that this huge Union is not bound by the admission of one of its
officers during the course of or with reference to his legal authority and acts would
give this large organization a wholly unwarranted exemption from the general law
pertaining to the admissibility and effect of vicarious admissions.
Therefore, De Parolis, as an authorized and continuing executive officer of Local
197, has bound it and its parent organization, the International Union, by his subse-
quent admission with- relation to the matters in his official charge, just as the
officers of a corporation would bind their corporate entity. Such admissions prove
the fact. I consider that the foregoing Federal judicial precedents are fully control-
ling and therefore reaffirm my rulings at the hearing overruling the Union's objections
to Modern's testimony on the ground of hearsay. It was competent and De Parolis'
statement was binding on the Union and establishes the January 5, 1954 threat of
discharges, as well as that of January 6, 1954 established by direct proof.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Statutory right of resignation prevails over restricted right to
resign under union constitution
The issue is squarely presented here as to whether the provision of the Union's
constitution limiting the right of resignation of a member to the last 10 days of the
Union's fiscal year prevents his valid resignation at any other time by a member of the
Union in the exercise of the statutory right "to refrain" therefrom as guaranteed by
Section 7 of the Act. The question has apparently not been determined in any prior
unfair labor case under the Act. General Counsel contends,
that the right of an employee to resign from a Union and thus exercise his right
to refrain from Union activity under Section 7 is fixed by statute and is not con-
trolled by proviso in a Union's constitution which purports to circumscribe or
destroy that right.
It is further contended by General Counsel that the proviso of Section 8 (b) (1)
(A), "That this paragraph shall not impair the right of a labor organization to pre-
scribe its own rules with respect to the acquisition or retention of membership there-
in" does not in effect, as contended by the Union, "proscribe an employee's right to
resign by giving paramount effect to a Union's constitutional provisions." It is also
further argued by General Counsel that to give effect to the Union' s constitutional
-limitation of membership resignation to the last 10 days of the fiscal year would "bind
the employees to union membership forever and a day" because of the noncoincidence
of the escape period and the short permissive time for legal resignations under said
clause of the Union's constitution, thereby in effect contending that such provision
,creates a sort of perpetual carrousel of involuntary membership.
The Union's position briefly stated is that Congress has legalized the unlimited
union shop, with a safeguard against abuses by granting the right of secret employee
elections under Board supervision to rescind any union-shop agreement under
Board supervision if 30 percent or more of the employees petition therefor; that
there is no statutory limitation as to the time union-security agreements may con-
tinue in force; and that the present agreement of October 12, 1953, is a valid and en-
forceable agreement, with no escape period permitted, such escape period being in-
serted into the Act as a mere creature of Board policy or of General Counsel's in-
vention; and that the proviso of Section 8 (b) (1) (A) "establishes a clear-cut Con-
gressional policy" to permit the retention of members by a union's own constitu-
tional provision, which in the instant case legally requires that a member who de-
sires to resign (1) must be in good standing, (2) be clear of pending charges, and
-(3) send his resignation in within 10 days of the end of the fiscal year. "
The Union nowhere contends, however, that either the agreement of October 12,
1953, or the earlier agreement of October 23, 1950, made, or legally could make, the
"Union's constitution or any provision thereof a part of such agreement by specific
reference or otherwise. Upon careful examination such agreements certainly do not
"so provide either expressly or by fair intendment. The agreement between the
,Union and the Employer is therefore tacitly conceded to be an entirely different
contract than that which existed between the Union and its members under the
Union's constitution.
- It is also particularly contended by the Union, however, in substance that the
Union's fiscal plan contemplates that all members are bound to membership for the
entire fiscal year and therefore a member can only resign during the last 10 days of
-that year (identical- with the last 10 days of the calendar year). It is urged that other-
wise the Union would have no fiscal solidity and that Section 8 (b) (1) of the Act
.clearly allows "a labor organization to prescribe its own rules with respect to the
retention of membership in the union"; and that therefore any resignation at a dif-
ferent time would violate both the Union's constitutional provision as to the reten-
tion of membership and the above-quoted provision of the Act legitimating the
;Union's said constitutional provision.
Of course the Union by its constitution has provided for monthly, rather than
annual , payments of dues. Article 16, section 6, thereof provides that "All dues are
-payable on or before the first day of the Month to the Financial Secretary of the
Local Union.. . The evidence shows, moreover, that as a matter of general
-practice the local steward collects the dues monthly and pays them over to the
-financial secretary who then issues the receipt at convenience. The thesis that the
;dues are set upon an annual basis is not sustainable insofar at least as affecting the
*right of resignation from membership is concerned.
The Union concedes in the course of this thesis, however, that such constitutional
provision could only require "a continuation of dues payments from the individuals
. MARLIN ROCKWELL CORPORATION 587
in question so far as their continued employment was concerned." It is then further
conceded:
In accordance with the Congressional limitations of Section 8 (a) (3) and 8 (b)
(2) of the Act, however, in this case, it is apparent from all the evidence on the
record that the Union has never taken a position which would require these
individuals to do more than pay up their dues.
These concessions make plain that the Union is not claiming that the said three
members could not resign from the Union insofar as any rights or obligations other
than the financial obligation of paying dues were involved. It is therefore clear that
the Union is not now concerned with the continued fraternal fellowship or other
union activities of these three men. It desires nothing but the payment of their,
monthly dues. Certainly the Union most understandingly did and does not want.
former fully privileged members to be "free riders" enjoying the benefits of collec-
tive bargaining which the Union had procured for them. And certainly the Union,
despite the implications of its letters and other evidence to the contrary, now clearly
recognizes the member's legal right to resign is quite a distinguishable thing from the
loss of -his job as a consequence thereof by reason of the enforcement of a main-
tenance-of-membership clause. It is certainly one thing for an employee to resign
from a union-another thing entirely different for an employee to be obliged by law:
on union insistence either to support the Union or to lose one's livelihood at union
request. The legal issues here therefore are now sharp and clear as follows: (1) As
to whether or not there was a valid "escape period" between the 2 agreements;.(2)
whether the said 3 employees took appropriate action during such "escape period" to
escape the obligation of paying further union dues; and (3) whether any union mem-
ber can-withdraw from membership at any time not specifically permitted by the
Union's constitution, that is, not at any time except within 10 days of the end of the
Union's fiscal year, and not be effective for 60 days thereafter. These questions con-
sidered as an entity, and particularly the last one mentioned, are of sufficient novelty
and importance to deserve complete analysis and discussion. The union constitu-
tional provision would hold, for example, one joining January 1 in any year to
membership and dues payment for 14 months thereafter.
There seem to be.no Board precedents' exactly determinative of this case although
there are 3 somewhat analogous recent cases, 1 involving a resignation before
and 'during a time lapse or hiatus between agrements, another involving discharges
for failure to pay dues where it was found there was no such alleged hiatus, and the
third case involving employees expelled from the Union for nonpayment of dues.
National Lead Company, Titanium Division, 106 NLRB 545, which is cited and re
lied upon by the Union, is quite distinguishable as pointed out by General Counsel
because it was held therein that there was in fact no hiatus between the old agree-
ment and the new one, which was held to be "a continuation of the previous contract,"
and therefore the legality of discharges of employees for the nonpayment of dues
under union-shop clauses in each contract was held to be in accordance with an
"unmarred continuity of successive union security clauses." No resignation was in-
volved, merely the failure to pay union dues accrued under a prior agreement, which
had expired. The Board held that there was proper cause for the discharges under
the facts.
' The Employer cites the three cases above referred to, including National Lead,
supra, which it says are at least somewhat analogous to the instant proceeding, but
correctly states that they are each distinguishable in material aspects from it. New
Jersey Bell Telephone Company, 106 NLRB 1322, now pending on review in the
Court of Appeals for the Second Circuit, involves a resignation on March 26, 1952,
which the Board held to be effective because the then current union contract with
the Employer expired on April 5, 1952, at which time a definite hiatus occurred
before the new contract became effective on April 14, 1952. Thus far the facts
are similar to those in the instant cases. But in New Jersey Telephone Company
the. union's constitution made no mention whatsoever of voluntary resignations,
such as the Union here contends it had in effect when the resignations of Raczkowski,
Turner, and Wolfe took place.
In the third case so cited by the Employer, Haffenreffer cf Co., Inc., 104 NLRB
206,' there was a similar situation to that in the instant case, in that there existed
a lapse- of time from March 1, 1952, to August 20, 1952, during which time there
was no union-security clause in effect. It was therefore held that the union in
demanding the discharge of employees, whom it had expelled for the nonpayment
of union dues, and the employer in complying therewith, respectively violated Sec-
tion 8 (b) (1) (a) and (2) and Section 8 (a) (1) and (3) of the Act. While
otherwise substantially analogous to these cases at bar, neither the Haffenreffer or
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the New Jersey Bell Company cases involved any union constitutional provision
specifically setting forth a special period in each year as the only time in which
a member can resign, and in the latter case such question was expressly reserved
for future decision in a case where the facts should present it.
That a member of a union has a right to resign at will, and even if such resigna-
tion is made during a time it cannot legally take full effect, it is operative and a
hiatus between agreements makes such a resignation fully effective, whereby the
resigned former union member thereby escapes from the further obligation' of
paying dues are principles established by the Board in the New Jersey Bell Telephone
Company case.
The right to resign from membership in any unincorporated association is well-
settled. As to resignations from unions this recent Board decision has established
that right. In New Jersey Bell Telephone Company, it is held:
It is a fundamental principle that an employee joining a voluntary labor union
for an indefinite period may resign at will.
In support of this principle the Board cited C. J. S., Associations, pp. 57-58, Sec.
24, and Louisville Ry. Co. v. LouisvilleArea Transport Workers Union, et al. (1950),
312 Ky. 657, 228 SW 2d 652. In the cited Kentucky case it is so held (228 SW
2d at 654) in almost the identical language used by the Board, as above quoted.
And in the other citation, 7 C. J. S., at page 57, the right of withdrawal from mem-
bership is stated as follows:
The laws of association as to the withdrawal of members are, ordinarily, con-
trolling. In the absence of a statute or law of the association to the con-
trary, a member may usually withdraw at will, subject to any existing
pecuniary obligations.
In Wrightington, Unincorporated Associations, page 302, it is said:
A member of an unincorporated association may' withdraw at any time unless
there is some provision in the by-laws to the contrary.
The same authority, at page 375, further says:
The contract involved in membership in these associations is to be interpreted
like other contracts and when the meaning is ascertained, is to be enforced,
so long as not illegal or immoral, whether the Court thinks it reasonable or not.
In Dyer v. Occidental Life Insurance Co. of California, 182 F. 2d 127, 130 (C. A.
9), it is held:
When a man joins a labor union (or almost any other democratically con-
trolled group), necessarily a portion of his individual freedom is surrendered
for the benefit of all members. He accepts the will of the majority of the
members in order that he may derive the advantage to be gained from the
concerted action of all. Just as the enactments of the legislature bind all
of us, so the constitution and bylaws of the union (unless contrary to good
morals or public policy, or otherwise illegal), which are duly enacted through
democratic processes, bind all of the members. If a member of a union dis-
likes the provisions of the by-laws he may seek to have them amended or may
withdraw from the union; otherwise he must abide by them. It is not the
function of courts to decide the wisdom or propriety of legitimate by-laws
of a trade union.
7 C. J. S. 33, Associations, Section 11, says:
The association, being solely a creature of convention between the members,
has the power to adopt such articles of association or constitution and to en-
act such by-laws as the association may agree upon, so long as they are not
contrary to public policy or the law of the land. See footnotes 29 and 30.
See also 5 C. J. 1341.
31 Am. Jur. 861, Labor, Section 58 states the following:
Like other associations, trade unions may prescribe qualifications for member-
ship. They may impose such requirements for admission and such formal-
ities of election as may be deemed fit and proper. Moreover, they may
restrict membership to the original promoters, or limit the member to be
thereafter admitted. No person has an abstract or absolute right to mem-
bership.
MARLIN ROCKWELL CORPORATION 589
On the other hand, membership in a trade union may not be conditioned
upon the surrender of the individual's constitutional rights when that would
not subserve the public interest.
The three resigned members here at^ bar had each paid up all monthly dues
owing by him to the Union to and including September 1953. Only monthly dues
are provided for by the Union's constitution.
The term dues refers to obligations into which members of a club enter to
pay a sum, to be fixed usually by by-laws, at recurring intervals for the main-
tenance of the organization. Thompson v. Wyandanch Club, (1911), 127
N. Y. S. 192, 200.
See also In re Monroe Chapter No. 59, O. E. S., (1928), 228 N. Y. S. 248, 255,
and Greenwald v. Chiarella, (1945), 57 N. Y. S. 2d 765, 769.
In Anderson v. Amidon, (1911), 114 Minn. 202, 130 N. W. 1002, 1004, a defini-
tion of "dues" is given similar to that in the New York cases. The Minnesota
Supreme Court there held a defendant liable for certain dues because he
became a member of the club and subscribed to the articles of association, and
continued such until the accrual of the dues in question. He could have with-
drawn at any time by proper notice to the club; .. .
In Westchester Golf Club v. Pinckney (1904), 87 N. Y. S. 153, it is held "a member
is not liable for dues after the termination of his membership."
Where, as here, the dues are payable monthly there would seem to be no obliga-
tion to pay dues after resignation, except as required to retain one's job under an
effective union-shop clause voluntarily executed by the Union and the Employer, as
permitted by the proviso to Section 8 (a) (3) of the Act. The argument that the
membership was annual in this case because this huge International Union budgets
its finances on an annual basis is not appealing. Almost every other business organiza-
tion necessarily does that. The Union might have attempted to set up annual, rather
than monthly, dues by provisions in its 'constitution, but it has not done so here. If
it could do so on an annual basis, however, it might then do so on a biennial or longer
term basis. Whether or not this would discourage or diminish membership, or create
financial and other difficulties for the Union is not before me for decision. Neither is
the question of whether such long term,dues would be contrary to public policy,
since a union, wholly unlike a social club, is vital to fundamental constitutional
rights of persons to earn a living where the Union and the Employer have agreed to
a maintenance-of-membership or union-shop arrangement under the proviso of Sec-
tion 8 (a) (3).
I therefore find that since each of the said three resigned employees with payment
of his September 1953 dues, was paid up currently, he owed the Union nothing; that
he therefore had a perfect legal right to resign from the Union when he did, and as
he did; and that such resignation then became effective. It follows, and I have found,
that each of the said three employees was therefore a resigned member, entirely out
of the Union when the hiatus or "gap" occurred between the termination of the 1950
agreement at midnight September 14, 1953, and the effective date of the new agree-
ment, October 12, 1953, and during and beyond such hiatus. I have also found
that the Union did not legally and effectually "bridge the gap" between the two agree-
ments. I have found that the hiatus extended from midnight of September 14 to
October 12, when the new agreement became effective, but even if it had been only
an interval of a day and some 15 or more hours between the termination of the 1950
agreement at midnight, September 14, 1953, and the alleged union membership 'rati-
fication sometime after 3:30 p. in. on September 15, 1953, of the invalid September
11, 1953, day-to-day attempted extension thereof by the union committee bargaining
for a new agreement, then each of the three prior resigned employees, from midnight
September 14 to late afternoon of September 16 was no longer bound by any agree-
ment between the Employer and the Union. A definite "escape period" existed, how-
ever long its duration, and these three employees "escaped." And barring other legal
obstacle, no obligation ever existed thereafter to pay any union dues on the part of
any of the said three employees.
This final question then involves the validity of the Union's constitutional provision
permitting resignation of members only during the last 10 days of the fiscal (identical
with the calendar) year, December 22 to 31, 1953, inclusive, in the precise instant
situation.
The rights of the individual employees rather than those of unions were given the
place of primary importance in the Act. The language of Section 7 refers expressly
to the rights of employees either to "join, or assist labor organizations" or "to refrain
590' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from any or all of such activities," except as required by a lawful agreement under the
proviso of Section 8 (a) (3). There is no such broad general definition or reserva-
tion of any rights to unions as such in the Act. It was held under the Wagner Act
in N.L. R. B. v. Hymie Schwartz, 146 F. 2d 773, 774 (C. A. 5) :
Contrary:to a rather general misconception, the National Labor Relations Act
was passed for the primary benefit of the employees as distinguished from the
primary benefit to labor unions, and the prohibition of unfair labor practices ...
was intended by Congress as a grant of rights to the employees rather than as a
grant of power to the union.
A similar holding appears in Brown v. National Union of, Marine Cooks and
Stewards (Dist, Ct., N. Dist. Cal., 1951), 104 F. Supp. 685, 690, which case is
cited approvingly 'on another point in 346 U. S. at page 490. And it has likewise
recently been so held,under the Taft-Hartley Act in N. L. R. B. v. Red Arrow Freight
Lines, 193 F. 2d 979,'981 (C. A. 5). While these cases involved concerted and
collective bargaining rights of employees, the principle is entirely applicable to the
employees' rights to refrain from union activities. And in N. L. R. B. v. Augusta
Chemical Co.,187-F. 2d 63, 64 (C. A. 5), it was held:
Whatever may have been, or may be, the real purpose of the statutes . . . under
which these proceedings 'ar'e' maintained, its avowed purpose was not to favor
or promote unions as such. It was to promote and protect the rights 'of in-
dividual employees to join or not to join a union and to be free from coercion
and interference either way.
That the long recognized common law right of employees to refrain from union
and other concerted activities had existed and was acknowledged under the Wagner
Act prior to the Taft-Hartley amendments of 1947 was fully recognized in the con-
gressional debates and discussions had in connection with the said 1947 amendments.
Senator Taft clearly stated in his final analysis and argument for the bill as agreed
upon by the Conference Committee (93 Congressional Record 7001, June 12, 1947,
Volume 2, Legislative History of the Labor Management Relations Act, 1947): '
Section 7. In this section guaranteeing the right of employees to self-organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in concerted activities, there has been inserted the language "and shall
also have the right to refrain from any and all of such activities.. ... It is con-
tended that the inclusion of the new language destroys collective bargaining and:
legalizes the device of the yellow-dog contract. Nothing could be further from
the truth. There is similar language in the Norris-La Guardia Act, a statute
outlawing the yellow-dog contract. Moreover, the Board itself has held that a
right to refrain from the exercise of the rights guaranteed in section 7 was al-
ways implicit in the Wagner Act. (See Pittsburgh Plate Glass Co., 66 NLRB
1683). The new language therefore, merely makes mandatory an interpretation
which the Board itself had already arrived at administratively: The reason for
its inclusion was that similar language had appeared in the House bill and since
section 8 (b) (1) of the Senate bill, which was retained by the conferees, made
it an unfair labor practice for labor organizations to restrain or coerce em-
ployees in the rights guaranteed them in section 7, the House conferees insisted
that there be express language in section 7 which would make the prohibition
contained in section 8 (b) (1) apply to coercive acts of unions against employees
who did not wish to join or did not care to participate in a strike or a picket line.
In'the Board case cited by Senator Taft, Pittsburgh Plate Glass Company, (1946),
66 NLRB 1083, at 1092, it is held:
The respondent [employer] argues that in the absence of a contest respecting
representation it may insist that employees join a labor organization. The Act
forbids discrimination to "encourage or discourage" membership in a union.
The meaning of the words is plain . There is nothing in the Act to indicate
that the prohibition applies only in the event that a union contest is in existence.
The Board has held that discharges to favor a union where there is no contest,
are illegal:
The Norris-La Guardia Act, also referred to by Senator Taft, was enacted in 1932
and is also commonly known as the Anti-Injunction Act (29 U. S. Code, Secs.
101-115). In its statement of policy, in reciting the right of unorganized workers
to be free to organize collectively without interference by employers or by judicial
-`1
MARLIN ROCKWELL CORPORATION 591
injunctional processes, the -correlative right of the worker to refrain therefrom is
also fully recognized inter alia by these definite qualifying words, "though he should
be free to decline to associate with his fellows." (29 U. S. Code, Sec. 102.)
Various congressional opponents of the proposed amendments, prior to Senator
Taft's said summation, although for different reasons, had similarly recognized the
"'existence of the employee's right to refrain from such activities. Representative
Owens, in moving to strike the language, argued (93 Cong. Rec. 3612, April 16,
1947, Volume 1, Legislative History of the Labor Management Relations Act, 1947,
- p. 732) :
I submit that when you are giving the employees the right to bargain collec-
tively by virtue of section 7, and encouraging them to do so, to place the words
at the end thereof "and shall also have the right to refrain from any or all
such activities," is redundant, because the words are unnecessary, inasmuch as
they have the right to so refrain... .
Senator Murray, in expressing his opposition to the conference report which
included the foregoing quoted language, said in part (93 Cong. Rec. 6655, June 6,
1947, Legislative History of the Labor Management Relations Act. 1947, page 1567):
Section 7'of the act is amended to give employees "the right to refrain from
any or all of such activities"-meaning joining a union and bargaining collec-
tively. Since they have that right now, nothing is accomplished by the
change... .
And in his comment in his written analysis of the measure which Senator Murray
inserted in the record, he again points out the same reasons for his opposition to
inclusion of the said language inter alia as follows (93 Cong. Rec. 6661, June 6,
1947, Volume 2, Legislative History of the Labor Management Relations Act, 1947,
page 1577):
The right of employees to refrain from concerted activity is, of course,
implicit in the present act. The addition of this provision is thus entirely
unnecessary and can lead only to a serious increase in litigation and ' con-
troversy.... -
While the Act itself did not create the right of self-organization or of collective
bargaining through representatives of the employees' own choosing (Amalgamated
Utility Workers v. Consolidated Edison Co. of N. Y., Inc., (1940), 309 U. S. 261,
263), it,is nevertheless true, as held in New Bedford Loomfixers' Union v. Alpert,
(U. S. Dist. Ct., Mass., 1953), 110 F. Supp. 723, 727, that:. -
... the right to be exclusive bargaining representative stems solely from the
provisions of the Act, and not from the Constitution or the common law. As
Judge Learned Hand stated in Fay v. Douds .• . . 172 F. 2d at page 724: -"The
privilege . is a creature of Congress to whose grant Congress was therefore
free to attach such conditions as it saw fit." - -
See also National Maritime Union etc. v. Herzog (Dist. Ct. D. C. 1948), 78 F.
Supp. 146, 155, affd. 334 U. S. 854.
It is therefore definite that the common law right of employees to refrain from
union membership and activities and other concerted activities existed under the
Wagner Act and was so recognized legislatively, judicially and administratively prior
to, the present Act, while the Union's right to represent all employees in collective
bargaining is a mere statutory privilege to be exercised only withiri the limitations
fixed by the Act itself. The Respondent International Union and its Local 197, as
well as the Respondent Employer, are obliged by law to recognize this right of
abstention of each of the three charging employees herein. It is only when such
right is abrogated by facts which bring the situation unqualifiedly with the
sole exception set out in the said proviso in Section 8 (a) (3) of the Act, that it
can be disregarded and such facts do not exist here.
The exception is stated in Section 7 of the Act. After first stating the rights of
collective bargaining and union and concerted activity, the correlative right of the
'individual employee to refrain therefrom is clearly set forth as follows:
Employees . . . shall also have the right to refrain from any or all of
such activities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
as authorized in Section 8•(a) (3).
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The precise nature of this exceptional agreement so referred to in Section 7 is set
forth in the first proviso of said Section 8 (a) (3). Insofar as material to the situa-
tion here presented, Section 8 (a) (3) provides:
. It shall be an unfair labor practice for an employer-
by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any
labor organization: Provided, that nothing in this Act, or in any other statute
of the United States, shall preclude an employer from making an agreement
with a labor organization . to require as a condition of employment
membership therein on or after the thirtieth day following the beginning of
such employment or the effective date of such agreement, whichever is later.. . .
This sole statutory exception to the positive right of employees to refrain from
union activities relates only to the agreement between a union and an employer and
not to any agreement between employees themselves inter sese under their union
constitution, bylaws, rules, or regulations, which is quite a different matter. The
employer is not obliged to, and therefore may not, enter into a union-shop agreement
or even a maintenance-of-membership agreement as a result of proper bargaining
with the Union. And the Employer here only entered into a limited or modified
union-shop agreement on October 12, 1953, which clearly permitted any of its then
present employees who were not union members at the time the contract was
effective to remain outside of the Union if they so chose to do, although employees
who were union members at the agreement's effective date, October 12, were bound
to remain union members. The "escape clause" in the agreement applies, however,
to these three charging employees because each had ceased to be union members both
before and during an interval, hiatus or "gap" between the old and new agreements,
and none of them were union members when the new one took effect on October
12, 1953.
That the agreement, not any provision of the Union's constitution, is the sole
controlling factor in any event, was recognized by the Union in its letter of November
5, 1953, to the said three employees who had resigned. In those letters the pro-
vision of the Union's constitution was not even mentioned and the Union' s position
was based expressly upon the proposition that under the maintenance-of-member-
ship provisions of the old agreement, and the union-shop provision of the new contract,
there is no escape period "in which to drop out of the Union." But the Union in. its
said letter never did explain to any of these three resigned former members just why
there was no hiatus or "gap" between the old agreement and the new, nor did it ad-
vise them of how the union officials had tried "to bridge the gap" as covered fully under
the preceding caption, "The hiatus between the two agreements."
It is fundamental, of course, that no contractual provision can stand if it is contrary
to law. Agreements between individuals may not prevail against laws in conflict
therewith. 17 C. J. S. 546, citing numerous cases, inter alia, First Trust Co. of Omaha
v. U. S. (Ct. Claims, 1932), 1 F. Supp. 904. An agreement violative of a statute is
void although not expressly declared to be void by the statute itself. See 13 C. J. 420.
footnote 77 and cases cited and 17 C. J. S. 555, footnote 75 and cases cited.
It is a general rule that an agreement which violates a provision of a . . . con-
stitutional statute or which cannot be performed without violation of such a pro-
vision is illegal and void. 12 Am. Jur. 652.
The United States Supreme Court has very recently, in construing the rights
guaranteed employees by Section 7 of the Act, in Radio Officers' Union, etc. V.
N. L. R B., 347 U. S. 17, 40, an important case of primary impression, held exactly
apropos the situation here "where encouragement" of "Union membership . . . is
alleged," that:
The policy of the Act is to insulate employee's jobs from their organizational
rights. Thus Sections 8 (a) (3) and 8 (b) (2) were designed to allow employees
to freely exercise their rights to join unions, be good, bad, or indifferent mem-
bers, or abstain from joining any union without imperiling their livelihood. The
only limitation Congress had chosen to impose on this right is specified in the
proviso to Section 8 (a) (3) which authorizes employees to enter into certain
union security contracts but prohibits discharge under such contracts if ... [cer-
tain conditions do or do not obtains.... Thus an employer can discharge an
employee for nonmembership in a union if the employer has entered into a union
security contract valid under the Act with such union, and if the other require-
ments of the proviso are met. No other discrimination aimed at encouraging
employees to loin, retain membership, or stay in good standing in a union is
condoned. [Emphasis supplied.]
MARLIN ROCKWELL CORPORATION 593
Neither from the plain language of the Act itself nor from the foregoing clear and
forceful language of the Supreme Court can I find words or even any inference that
any provision of a union constitution limiting its members' right to resign, whether
reasonable or unreasonable, can in the least impair the statutory right to refrain from
such union membership, which unquestionably includes the right to resign therefrom.
I rather read that no such an attempt to retain membership "is condoned." I find
nothing in the record or the Union's brief to change this view. The Employer in the
case at bar had no "union security contract valid under the Act with such Union"
when the so-called "escape period" occurred during which the three said resigned
employees "escaped." The valid contract thereafter entered into on October 12,
1953, did not require employees then already employed at the Employer' s plant to
join the Union, but quite to the contrary provided:
Any present employee who, on the effective date of this agreement, is not a
member of the Union shall not be required to become a member as a condition
of continued employment. [General Counsel's Exhibit No. 8, p. 2, section 2,
second paragraph.I
And no provision of the Union's constitution could destroy the right guaranteed by
the Act of an employee to resign, whatever the consequences thereof might, or
might not, be.
And it has been held:
Although Section 8 (b) (1) of the Act preserves the right of labor organizations
to regulate their internal affairs, we do not believe that a bylaw or directive of a
Union, that is manifestly opposed to the letter and intendment of the Act here
considered can be relied upon to justify activities that are specifically declared
unlawful by the Act. Elliott v. Amalgamated Meat Cutters and Butcher Work-
men of North America, A. F. of L. et al., (Dist. Ct. W. D. Mo., 1950), 91 F.
Supp. 690, 691.
The principle is entirely applicable here. To insist that legally resigned employees
pay union dues "is manifestly opposed to the letter and intendment of the Act" (Sec-
tion 7), and is "specifically declared unlawful by the Act" (Section 8 (b) (2) ).
I therefore find that the provision of the Union's constitution, article 6, section 7,
permitting a member to "resign or terminate his membership" only if made "within
the ten (10) day period prior to the end of the fiscal year of the Local Union as fixed
by this Constitution" to "become effective sixty (60) days after the end of such fiscal
year" contravenes the broad statutory right of an employee to resign at any time
from a union guaranteed by Section 7 of the Act. The Union's constitutional provision
is therefore void and must fall.
G. Alleged improper and irregular conduct of General Counsel
Respondents International Union and Local 197 in their brief complain and except
at great length concerning the testimony of the Board's Field Examiner Modern and
his procedures in handling the case and in testifying as to the admission of the Local's
president, De Parolis, on January 6, 1954, concerning his demand of January 5,
for the discharge of Raczkowski and Wolfe. It is further urged that alleged "cumula-
tive irregularities" in the Board's proceedings during this field examiner's investigation
of the case and the conduct of the attorney for General Counsel at the hearing "war-
rant a dismissal of this charge in the interest of sound administrative procedure."
No such motion was made at the hearing's end, although the Union during the hearing
had repeatedly objected to the General Counsel's somewhat irregular and interruptive
presentation of his case, on many occasions. Whatever the power or the policy of the
Board itself may be in that regard, it is not within the function or authority of this
Trial Examiner to dismiss the allegations of the complaint pertaining to the Union's
demand for such discharges on any such alleged basis. I saw nothing prejudicially
improper in any event. In granting General Counsel latitude no prejudicial error
occurred. In view of the very evident genuine surprise of the attorney for General
Counsel at the evident "hedging" of Maikowski on the stand, I properly granted
liberality in his efforts to refresh his memory. Sec. 102.35 of the Rules and Regula-
tions of the Board, Series 6, as amended, effective June 3, 1953, prescribe the Trial
Examiner's duties in some detail. It is his duty inter alia thereunder "to inquire fully
into the facts as to whether the respondent has or is engaging in an unfair labor
practice affecting Commerce as set forth in the Complaint " It is also his duty "to
rule upon offers of proof and receive relevant evidence."
But neither the Administrative Procedure Act, the Act itself, or the Board's Rules
give the Trial Examiner authority over the General Counsel's discretionary acts,
' 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such as authorizing and calling Modern as a witness. The privilege of the General
Counsel not to call him can be waived and was waived in the interest of justice
in this case. The testimony of Field Examiner Modern was most certainly relevant
to the vital matter of the Union's demand for the discharge of the two said
employees. No valid rule or reason for the Trial Examiner's exclusion or rejection
of his evidence is cited or presented by the objecting Respondents. Modern was
under the jurisdiction, of the General Counsel of the Board. Section 3 (d) of the
Act prescribes that:
The General Counsel of the Board shall exercise general supervision .. .
over the . . . employees in the regional offices.
And Section 102.87 of the Board's said current Rules and Regulations provides
insofar as material here: -
No . . . field examiner . . . shall . testify in behalf of any party to any
cause pending . . . before the Board . . . with respect to any information,
facts, or other matter coming to his knowledge in his official capacity .. .
without the written consent of . . . the General Counsel if the official . is
subject to the supervision or control of the General Counsel.
The Trial Examiner, of course, and as already stated, has considered the
competent and relevant evidence of this witness the same as he would that of-any
other witness and has resolved its credibility and weight, or lack thereof, from all
indicia appearing in the attitude and conduct of the witness, including any possible
weaknesses in the testimony itself. His testimony has been carefully weighed
against other contradictory evidence in the case. That the appearance of any
field examiner as a witness in an unfair labor practice case is an unusual circum-
stance, is not a basis for denying or discrediting his testimony. I therefore deny
the application to dismiss the cases against the Union on the grounds the Union
urges.
H. The Connecticut State Board of Arbitration decision
On cross-examination of the Local's president, De Parolis, by the Employer's
counsel, evidence was adduced that two other employees, Aaron and Dithers,
who are not involved herein, had given notice of their resignations from the Union
on September 15 (or perhaps after that date as contended by the Union) and had
requested removal of their names from checkoff. It further appeared that the
Union had submitted a grievance to the Company that it had violated the maintenance-
of-membership clause and the checkoff clause of the 1950 agreement by removing
them from checkoff and for not compelling them to remain members of the Union
or to leave the Company's employ. This matter had been submitted to the Con-
necticut State Board of Mediation and Arbitration, the arbitrator under that 1950
agreement. The matter was still pending at the time of the hearing when the
Union's counsel objected to its materiality. It was admitted before objection' was
made but the Trial Examiner finds, in concurrence with the belated objection, that
the evidence is not material. But the Union's counsel has altered his position, and
now points out that a decision in the matter has been rendered in the matter favorable
to the Union and asks that the Trial Examiner take "judicial notice of this decision
by an established State agency rendered in Case No. 54-625, June 3, 1954." It may
be doubted that he would so desire had the arbitration decision been contrary to his
contentions or that he can at this late date "mend his hold." In my view, however,
the decision is certainly not res judicata as to the Board in this case, which is
conducting a public proceeding under the Act for the enforcement of public rights.
And the Connecticut award affecting two strangers to this record cannot be con-
sidered even as a matter of stare decisis. The decision of the said agency of the
State of Connecticut in an arbitration matter cannot even be of persuasive force in
the case at bar. Even mere general similarity of issues is not enough. And I do
not find the issues to be the same as those here. In an arbitration proceeding the
parties waive certain personal rights and an arbitration decision, under either the
general arbitration statute of Connecticut, G. S. Conn. (Rev. 1949), Sec. 8151
et seq., or that one pertaining to special labor disputes arbitration, id., Secs. 7384
et seq., is of a private character and would not be a judicial determination subject
to official notice by the Board. The Supreme Court of Connecticut in construing
these particular statutes has held "parties who set up their own private tribunal
must be bound by the limits they have themselves fixed." Pratt, Read & Co. v.
United Furniture Workers of America, etc. (1949), 136 Conn. 205, 70 A. 2d. 120,
123. In any event under the agreement it is merely an optional proceeding as
MARLIN ROCKWELL CORPORATION ' 595
part- of a grievance procedure to which; the Board is not a party and could not be
bound in any event. Insofar as material, Section 10 of the Act provides:
The Board is empowered, as hereinafter provided, to prevent any person from
engaging in any unfair labor practice, (listed in section 8) affecting commerce.
This power shall not be affected by any other means of adjustment or preven-
tion that has been or may be established by agreement, law, or otherwise: .. .
I therefore, with due deference to the- said agency of the sovereign State of
Connecticut, respectfully disregard said arbitration decision as immaterial and not
of any persuasive force in the matter here at bar, and so recommend to the Board.
I. Ultimate findings of violations'by Respondent Union-Their effect
upon commerce-The remedy
Under the facts as I have found them, I necessarily find that the Respondents In-
ternational Union and its Local 197, by demanding the discharges of employees
Raczkowski, Turner, and Wolfe, when they had already resigned their respective
memberships in, and were not bound to again become members of the Union under
the current bargaining agreement of October 12, 1953, have violated Section 8 (b) (1)
(A) and Section 8 (b) (2) of the Act. See New Jersey Bell Telephone Co., supra,
and Haffenrefier Co., supra. See also Union Starch and Refining Co. v. N. L. R. B.,
186 F. 2d 1008 (C. A. 7), cert. denied 342 U. S. 815, and Radio Officers' Union, etc. v.
N. L. R. B., supra, 347 U. S. 24-28, 39-42, and 55. The International, of course, is
responsible for the acts of its subordinate Local under basic principles of agency,
and each of them has been unjustly enriched by the dues paid by said employees
for any and all months after September 1953.
Such violations by the Respondents International Union and its Local 197, oc-
curring in the course of the operations of the Respondent Employer, Marlin Rockwell
Corporation, while it is and has been engaged in commerce as found herein, and
as defined by Section 2 (6) and (7) of the Act, have a close, intimate, and sub-
stantial 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.
I therefore recommend to the Board that, in effectuation of the policies of the
Act, it order said Respondents International Union and its Local 197, to withdraw
their said requests to the Respondent Employer for the discharge of employees
Raczkowski, Turner, and Wolfe, the same to be in writing and served upon the
Employer within 20 days of the effective date of the Board's order, and that certified
return thereof be made by said Respondents International Union and its Local 197;
that the said Respondents be ordered to cease and desist from in any like or other
manner violating Section 8 (b) (1) (A) and Section 8 (b) (2) of the Act; and
further that within said 20 days said Respondents repay to and make whole each of
the three named employees any and all sums of money heretofore paid by him
and collected by said Respondents for union dues after September 1953, including
lawful interest thereon at 6 percent per annum as provided by Section 6776 and 6778,
General Statutes of Connecticut (1949 Revision), until said principal sum is paid to
such employee.
Respondent Employer Did Not Violate the Act
The situation of the Respondent Employer is quite distinguishable from that of the
International Union and its Local 197. As already suggested herein, the special posi-
tion of the Employer in these cases is that it is in effect an innocent bystander. It
urges that:
. the status of these employees (whether or not members of the Union) is
to be determined between the Union and the employees. It has never been
and is not now the function and responsibility of the Company to make any
judicial determination as' to their status. The action and conduct of the
Company with respect to these individual employees, and as to their status
in the. Union, did not constitute a violation of the Act
The Employer apparently contends that in this situation, which it did not create,
it should not be required. to determine which is right, the Union or the three
employees involved here. The Employer did tentatively threaten discharges, but has
delayed their execution since the present cases were initiated by the filing of charges.
In a different connection, but relevant to this, however, the Union in substances con-
tends, that the said three employees, by paying dues under protest have "kept them-
387644-56-vol 114--39
596 DECISIONS OF - NATIONAL - LABOR :RELATIONS BOARD
selves within ,the bounds of `membership in good standing ' as defined in the Union's,
constitution" and thereby have foreclosed their discharges until the determination,
of these cases.
But in any event it does not seem practical , equitable , or just that in a situation
like this presented here, that an employer , though bound to know the law, should
be required to-decide disputed issues of fact between the Union and'employees, or to
investigate into facts unknown or obscure to the Employer at the risk of its being
subjected to interference charges by either the resigned members or the Union, or
both. Being confronted with the possibility of an unfair labor practice, strike or,
some other form of industrial unrest if it did not discharge these three men, 'the:
Employer made threats of discharge , but did not actually discharge these employees.
Their payment of dues under duress apparently has deferred any positive legal
act of discharge until these cases have been decided.
It is evidently the policy of the Board , in its interpretation of how best to ef-
fectuate the policies of the Act, in fairly comparable situations , not to issue sanctions
against an employer. See the following recent cases : Bloomingdale 's, 107 NLRB'
191; and Al Massera , Inc., 101 NLRB 837. While the facts differ somewhat from
those at bar in each of those cases , I gather that the distilled essence and substance'
of both the majority and minority opinions behind such rulings is that an employer
cannot be found to have violated Section 8 (a) (1) and '( 3) of the Act in,,discharg
ing employees at the union 's behest for alleged nonpayment of dues' because the
employer is not obliged to "disentangle " a legitimate reason which appears prima
facie , from any alleged unlawful reason while the employer is doing no more
than to attempt to carry out the lawful union -security provisions of its contract with'
the union . That is, the Board holds , if the employer has reasonable grounds to be-
lieve the union 's demand for discharge is proper , he does not violate the Act in dis-
charging or threatening to discharge an employee who is delinquent in his payment
of union dues.
In the case at bar the factual and legal problems presented have given sufficient'
difficulty to the Trial Examiner , 'after a 2-day hearing on the facts and an extensive,
study of the law, aided by briefs of counsel, to warrant, in his opinion , this pro-
tracted Intermediate Report. The Employer could scarcely have been required
to go to any equal effort, and at its peril, to decide the problems presented. This-
Employer, who did not initiate or instigate the matters ' complained of, should
therefore be blameless , like` the defendant in the classic negligence case, who was
freed from liability for injuries caused to another when he threw the explosive squib,
which had been originally lighted and tossed to him by the original tort-feasor.
While the Union is charged with violation of Section 8 (b) (2) it is not necessary
for the General Counsel to also complain under Section 8 (a) (3) and ( 1) against
the Employer. Radio OJfrcers' Union, etc. v. N. L. R. B ., supra, 347 U. S. 17, 20,
52-54. It certainly follows that it is unnecessary to establish a violation by the
Employer before a violation can be found against the Union , just because -the two
sets of charges and complaints are consolidated for hearing as they have been'
here. Liability may be both joint and several . N. L. R. B. v. Newspaper & Mail
Del. Union , 192 F. 2d 654-656 (C. A. 2).
..I therefore find that the Respondent Employer has not violated Section 8 (a)
(1) of the Act in making the threats of discharge under the circumstances involved
herein, and recommend accordingly that the proceedings be dismissed as to such
Employer.
Upon the basis of the foregoing findings of fact under the law applicable thereto,
and upon the entire record in the cases presented herein, I make the following:
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the subject matter of each of these six con-
solidated cases and the respective parties thereto.
2. Respondent Marlin Rockwell Corporation is and has been at all -'times mate-
rial engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act.
3. International Union, United Automobile , Aircraft and Agricultural Implement
Workers of America , CIO, and its Local 197, are each labor organizations within
the meaning of Section 2 (5) of the Act
4. The allegations of the complaint in Cases Nos . 1-CB-249, 1-CB-256, and
1-CB-272 that said Respondents International Union and its Local 197 have en-
gaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and
Section 8 ( b) (2) of the Act , have been respectively sustained in each of such cases
GENERAL ELECTRIC. COMPANY - ' - r597
5. The allegations of the complaint in Cases Nos. 1-CA-1596, 1-CA-1607, and
1-CA-1689 that Respondent Marlin Rockwell Corporation has engaged in un-
fair labor practices within the meaning of Section 8 (a) (1) of the Act, have not been
sustained in any of such cases.
[Recommendations omitted from publication.]
General ; Electric Company and International Union of Electrical;
Radio,'and' Machine Workers , CIO, Petitioner., Case No. 1-RC-
4116. October 20,1955
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 0 (c) of the National La-
bor Relations Act, a hearing was held before Edwin J. J. Dwyer, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prej udicial error and are hereby affirmed.
Uponthe entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the represents=
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of production, mainte-
nance, and shipping employees at the Employer's Taunton, Massa
chusetts, plant. The parties are in substantial agreement as to the
composition of the unit; however, they disagree as to the unit place-
ment of employees classified as counters and foremen's clerks. The
Petitioner would include them as plant clericals. The Employer op-
poses their inclusion. Local 204, United Electrical, Radio and Ma-
chine Workers of America (UE), herein called the Intervenor, and
the present bargaining representative of the production and main-
tenance employees,' takes no position on the matter.
The counters work in a wire-enclosed counting crib and in two other.
areas on the production floor. They count and record the number of
items handled by production employees; move about the production
floor; pick up tickets from pieceworkers, stamp them, and issue re-
ceipts. Like production employees, they are hourly paid, punch the
same time clock, use the same facilities, and receive the same benefits
and conditions of employment. We find that the counters are plaint
clerical employees.'
I The Intervenoi's most recent contract expired September 15, 1955
2 See Bethlehem Steel Company Shipbuilding Dno81on, 97 NLRB 1072, 107-4
114 NLRB No. 09.