Newspaper Guild of Buffalo

National Labor Relations Board - Board Decisions

Sep 30, 1957

118 N.L.R.B. 1471 (N.L.R.B. 1957)

NEWSPAPER GUILD OF BUFFALO 1471
Newspaper Guild of Buffalo, Local #26, American Newspaper
Guild (AFL-CIO) and Niagara Falls Gazette Publishing Cor-
poration . Case No. 3-CB-276. September 30, 1957
DECISION AND ORDER
On December 31, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the Intermediate
Report, a ebpy of which is attached hereto. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and a supporting brief,
and the Charging Party filed a brief in support of the Intermediate
Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its power in connection with the case to a three-member
panel [Members Murdock, Rodgers, and Bean].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as they are consistent with our
decision herein.
The Trial Examiner found that the Union attempted to cause the
Company to discriminate against Kramarczyk in violation of Section
8 (a) (3) of the Act and thereby violated Section 8 (b) (2) and 8 (b)
(1) (A) of the Act.
The Employer and the Union were parties to a union-security
agreement which became effective February 15, 1956, and which pro-
vided, inter alia, for maintenance of membership in the Union by
"all employees who, 30 days after the date of this agreement, are mem-
bers of the Guild in good standing in accordance with the Constitu-
tion and By-Laws" of the Union. In accord with the parties, we
construe this provision as one that was intended to operate as an
escape clause for employee members of the Union, who desired to
resign from the Union during the first 30 days of the contract term.
Accordingly, under this union-security agreement, the maintenance-
of-membership provision did not become operative until 30 days after
the effective date of the contract. Until the expiration of that period,
the incumbent employees' rights under the Act and their job rights
were unaffected by the contract's maintenance-of-membership pro-
vision. During this period they could join, not join, or resign from
the Union without jeopardizing their jobs. Taking advantage of the
118 NLRB No. 203.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
escape clause, Kramarczyk, who on the effective date of the agreement
was a member of the Union, on February 20 sent to the union steward
her letter of resignation to become effective at the end of the month.
Her dues for the month of February were paid in full. No action on
her resignation was taken by the Union until some time in April when
it attempted, without success, to arrange a meeting with Kramarczyk.
On May 18, Kramarczyk was informed by the Union that the mem-
bership of the Local had refused her resignation because she failed
to present her reasons for resigning in writing, and on June 22 the
Union requested the Company to discharge Kramarczyk pursuant
to the terms of the union-security agreement. The Company refused
the demand and filed the unfair labor practice charges herein involved.
Union's contention: The Union contends that under the union-
security clause of the 1956 contract "membership" status of employees
was to be determined in accordance with the Union's constitution and
bylaws, and that for this reason an employee's "good standing" in the
Union at the expiration date of the grace or escape period and the
effectiveness of any resignation from the Union during this period
must be determined in accordance with those documents. Accord-
ingly, as article X, section 3 of the Union's constitution provides that
"a member shall be in good standing if he is not more than a month in
arrears in payment of his dues," and as Kramarczyk paid her dues
for the month of February, she was, under the constitution, a member
in good standing at the expiration date of the escape period and hence
was bound under the contract to maintain her membership in good
standing for the duration of the agreement. The Union takes the
position that Kramarczyk's resignation was ineffective as she did not
follow the procedure prescribed in the constitution, and specifically
because she failed to set forth her reasons for resigning in her letter
of resignation.'
The issue: The only real issue before us is whether or not Kra-
marczyk's resignation became effective before the expiration of the
30-clay escape period established in the union-security agreement.
Whether Kramarczyk was or was not in good standing at that time is
1 with respect to resignation article X, section 16 of the Union's constitution provides
as follows :
Any offer to withdraw or to resign from membership in the Guild . . . shall be
submitted in writing to the governing board of the Local, together with the reasons,
in detail, for such contemplated withdrawal or resignation. The governing board
of the Local shall thereupon inquire into the causes and report on the truth and
sufficiency of the same to the membership of the Local at a membership meeting.
The membership shall thereupon vote on whether such withdrawal or resignation
shall be accepted or rejected. Any acceptance shall always be conditioned upon full
payment of all financial obligations due and owing to the Guild. Upon the rejec-
tion of any offer to withdraw or resign, the membership obligations of the member
making such offer shall continue in full force and effect. A copy of the offer to
withdraw or resign , together with the action taken by the Local thereon, shall be
forwarded to the IEB [International Executive Board]. Such action shall not become
final until approved by the IEB.
NEWSPAPER GUILD OF BUFFALO 1473
not relevant to the issue , for if Kramarczyk was no longer a member
of the Union on the expiration date of the escape period, it would be
unnecessary for us to decide whether or not she was a member in good
standing at that time. As a nonmember she would not be covered by
the maintenance-of-membership provision in the agreement and hence
not subject to discharge for failure to pay dues.
The Union takes the position that the effectiveness of Kramarczyk's
resignation must be determined in accordance with the Union's con-
stitution. We do not agree. While the union-security clause ex-
pressly provides that the "good standing" of employees is to be de-
termined "in accordance with the Constitution and By-Laws," it does
not state that the effectiveness of a "resignation" by a union member
is to be determined in accordance with the same union laws. Indeed,
the very right of members of the Union to resign during the escape
period is implicit rather than spelled out in the agreement.
It is argued, however, that regardless of whether or not the union-
security clause expressly requires that the effectiveness of resignation
of union members be determined by reference to the Union's constitu-
tion and bylaws, recourse to the intraunion laws is mandatory on the
theory that "membership" in a union is a contractual undertaking
whereby it member agrees to comply with all the requirements set forth
in the union constitution and bylaws. However, in the context of this
case, like the Trial Examiner, we are convinced that Kramarczyk's
union rights and obligations must be distinguished from her employ-
ment rights, that is, her right to her job. So far as the effect of
Kramarczyk's resignation upon her status as a union member is con-
cerned, it may well be that it must be considered in the light of the
provisions of the constitution relating to resignations. So considered,
Iramarczyk's purported resignation might have been of no effect
with the result that at the expiration of the escape period she still
retained her status as a union member . We are, however, not re-
quired to pass upon Kramarczyk 's relationship with the Union. What
we are concerned with is the effect of Kramarczyk 's resignation upon
her employment status, that is to say whether Kramarczyk 's failure
to resign in a manner prescribed by the Union's constitution affected
her right to retain her job with the Company under the union-security
agreement.
We find that it did not. Were we to adopt the Union's contention
and find otherwise the escape clause in the union-security agreement
which was intended to confer upon employees the right to resign from
the Union within the 30-day escape period, would become a nullity
and without any effect. Under the Union's constitution the right to
resign from the Union is hedged with such conditions and restrictions
as to make resignations to all intents and purposes impossible , at least
within the 30-day escape period . A union member who wishes to
4558-58-vol. 118 94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resign must first make an "offer" to resit i together with detailed
reasons in writing for such contemplated resignation. The Local
thereupon inquires into the reasons given and reports on "the truth and
sufficiency of the same" to the membership of the Local. The member-
ship of the Local then votes on whether such withdrawal or resigna-
tion shall be accepted or rejected. Finally, the action taken by the
Local must be approved by the International Union. We must in-
terpret the contract as intended to accomplish what it purports to
accomplish-to confer an actual and effective right to resign from
the Union within the escape period rather than an illusory right.
The Union must be deemed to have recognized such a right under
the contract without regard to the restrictions on the right to resign
which exist in its constitution and which would otherwise govern. '
Accordingly, as we have found that Kramarczyk effected her resig-
nation from the Union within the 30-day escape period provided in
the contract, we conclude that at the expiration of the escape period
she was not bound by the maintenance-of-membership provision of
the union-security agreement and that therefore the Union's later
request that she be discharged constituted a violation of Section 8 (b)
(2) and 1 (A) of the Act.
ORDER
Upon the entire record in this case and pursuant to Section '10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Newspaper Guild of Buffalo,
Local #26, American Newspaper Guild (AFL-CIO), its officers, rep-
resentatives, agents, and successors, shall :
1. Cease and desist from :
(a) Requesting or insisting that any employer discharge an em-
ployee or in any other manner attempting to cause any employer to dis-
criminate against an employee when such discharge or discrimination
would be in violation of Section 8 (a) (3) of the Act.
(b) Threatening employees of the Niagara Falls Gazette Publishing
Corporation with loss of employment in the event that they fail to com-
ply with the provisions of its constitution relating to resignation or
withdrawal from the Union when such threats would be in violation of
Section 8 (,1) (3) of the Act.
(c) In any like or related manner, restraining or coercing em-
ployees of said' Employer, or any other employer, in the exercise of
the rights guaranteed in Section 7 of the Act, except to the extent
permitted by Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify Eleanor Kramarczyk and the Company, in writing, that
it withdraws its objections to the employment of Pramarczyk by the
Company.
NEWSPAPER GUILD OF BUFFALO 1475
(b) Post at its office in Buffalo, New York, copies of the notice at-
tached hereto marked "Appendix." Copies of said notice, to be fur-
nished by the Regional Director for the Third Region, shall, after
being duly signed by the Union's representative, be posted by the
Union immediately upon receipt thereof, and be maintained by it for
:sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its members are customarily posted.
Reasonable steps shall be taken by the Union to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Mail to the Regional Director for the Third Region signed
copies of the notice attached hereto 2 marked "Appendix," for posting,
the Company willing, by the Company for sixty (60) consecutive days,
in places where notices to employees are customarily posted. Copies
of said notices, to be furnished by the Regional Director for the Third
Region, shall, after being duly signed by the Union's representative, be
forthwith returned to said Regional Director for such posting.
(d) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps they have
taken to comply herewith.
2 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
NOTICE TO ALL MEMBERS OF NEWSPAPER GUILD, LOCAL #26
AMERICAN NEWSPAPER GUILD (AFL-CIO)
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify you that :
WE WILL NOT request or insist that Niagara Falls Gazette Pub-
lishing Corporation or any other employer discharge any employee
except as permitted by an agreement or arrangement authorized
by Section 8 (a) (3) of the Act.
E WILL NOT in any other manner attempt to cause Niagara
Falls Gazette Publishing Corporation or any other employer to
discriminate against any employee in violation of Section 8 (a)
(3) of the Act.
WE WILL NOT threaten or in any other manner restrain or coerce
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act.
NEWSPAPER GUILD OF BUFFALO, LOCAL # 26,
AMERICAN NEWSPAPER GUILD (AFL-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 AND RECOMMENDED ORDER
The complaint herein alleges that the Union has violated Section 8 (b) (2) of
the National Labor Relations Act, as amended, 61 Stat. 136, by requesting, demand-
ing, and insisting, on or about June 22, 1956, and thereafter that the Company dis-
charge employee Eleanor Kramarczyk because she was not a member in good
standing in the Union; and Section 8 (b) (1) (A) by threatening Kramarczyk on or
about April 20 and May 1, 1956, with loss of her job if she did not maintain mem-
bership in good standing in the Union. Admitting the facts which are alleged as
violative of Section 8 (b) (2), the answer denies that the alleged threats were made,
and further denies that the Union violated either section of the Act.
A hearing was held before me at Niagara Falls, New York, on November 8, 1956.
General Counsel and counsel for the Union were heard in oral argument at the
close of the hearing. Pursuant to leave granted to all parties a brief was thereafter
filed by the Company, the time to do so having been extended.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a New York corporation with
principal office and place of business in Niagara Falls, New York, is engaged in the
business of printing, publishing, and distributing a daily newspaper known as the
Niagara Falls Gazette, which has an average circulation of about 35,000 copies;
that the Company sells and distributes about 5 percent of its total circulation outside
the State of New York; that in the course of its business operations, the Company
publishes nationally syndicated features, advertises nationally sold products, and
subscribes to and/or is a member of the United Press and the Associated Press,
which do business in the various States of the United States and in foreign countries;
and that the gross annual value of the business engaged in by the Company is about
$1,000,000. I find that the Company is engaged in commerce within the meaning
of the Act.
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
II. THE UNFAIR LABOR PRACTICES
Kramarczyk, nee Cessna, joined the Union on February 9, 1955. On February 15,
1956, the Union, which is and has been the certified collective-bargaining representa-
tive for all of the Company's employees in the business office unit, which includes
Kramarczyk, entered into a collective-bargaining agreement whose coverage included
the employees in said unit. The agreement provides, inter alia , for maintenance of
membership in the Union, in good standing for the duration of the agreement, by
"All employees who, 30 days after execution of this agreement, are members of
the Guild in good standing in accordance with its constitution and by-laws. .
In a letter dated February 20, 1956, addressed to the Company and marked for
the attention of one Bill Gossard, Kramarczyk declared that she wanted to terminate
her membership in the Union at or "after" the end of the month. She had paid
her union dues for that month, but has not paid any dues since. Gossard is a member
of the Union and was at that time unit chairman (equivalent to union steward).
He is employed by the Company as telegraph editor. Whether or not he was a
supervisor or in any way could be held to have represented the Company in receiv-
ing Kramarczyk's letter, does not appear. But as steward or unit chairman, he
NEWSPAPER GUILD OF BUFFALO 1477
did represent the Union or serve as intermediary between it and the members in
his unit. Certainly there is no issue beyond the question of sufficiency of the letter
and the omission of reasons therefrom concerning the giving to the Union of notice
of resignation or attempt to resign; the Union acted on the basis of Kramarczyk's
letter of February 20. Neither is there any issue concerning the timeliness of the
letter with respect to the 30-day provision in the collective-bargaining agreement.
The issue rather concerns the Union's constitution and its effect in limitation of the
right to resign, the method to be followed, and the consequent rights of the parties
involved with respect to the employment relationship. If in fact Kramarczyk did
not resign from the Union and was required under the agreement to continue her
membership in good standing, then the Union acted lawfully in insisting that the
Company discharge her for failure so to continue. Nor would a threat of loss of
job on account of such failure be violative of the Act.
On April 9, the Union sent Kramarczyk a letter suggesting a meeting on April 12
to discuss her notices concerning her "desire to resign." (Notices other than the
letter of February 20 are not before us. As noted supra, the Union received notice,
the question raised being the effect of such notice in the light of the Union's consti-
tution.) She did not appear for the meeting, and on April 20 the Union wrote to her
again, pointing out that under the constitution of its International "any offer to with-
draw or resign from membership must be submitted in writing to the Executive
Committee, together with the reasons in detail." The Union in this letter further
declared: "A rejection of withdrawal or resignation offer requires the membership
obligations of the member seeking to withdraw or resign to continue in full force
or effect." Kramarczyk was now advised to attend a meeting of the Union's execu-
tive committee on April 26. On the latter date, Kramarczyk again failing to appear,
the executive committee recommended to the local membership that her "application
for resignation" be found to be without legitimate or sufficient reason, that such
application be rejected, and that the collective-bargaining provision concerning
maintenance of membership as a condition of employment be enforced; and by
letter dated May 1 Kramarczyk was notified of these recommendations.
In the letter of April 20, Kramarczyk had been advised that failure to abide by
obligations set forth in the Union 's constitution might result in various penalties,
and that "any such action against (her) could affect (her) future in the newspaper
business in any city in which the Guild is the collective bargaining agent." 1 Any
ambiguity in that statement as a threat of loss of her job, as alleged in the complaint,
in Niagara Falls or "in any city," was removed by the notice in the May 1 letter
that the Union's executive committee had recommended enforcement of the main-
tenance-of-membership provision as a condition of employment: allegedly required
to continue her membership, she was in default, and under the collective-bargaining
agreement she was subject to discharge. In the letters of April 20 and May 1 the
Union threatened Kramarczyk with loss of her job for failure to maintain membership
in good standing. With this factual finding, we are again left with the issue of
the Union's right to limit Kramarczyk's employment and its corollary privilege to
warn her of that alleged right.
By letter dated May 18, the Union notified Kramarczyk that the local membership
had accepted the executive committee's recommendation that her resignation be
refused because she had not presented her reasons in writing.
On June 22 the Union requested the Company "to enforce" against Kramarczyk
the maintenance-of-membership provisions of their agreement , declaring that a
resignation proferred by her had not been accepted, that she was in good standing
in the Union 30 days after execution of the agreement, and that she was no longer
in good standing . In response to the Company 's inquiry of June 28 concerning the
date of the resignation referred to, the Union on July 17 referred to Kramarczyk's
letter of February 20; ignoring the question of timeliness, the Union declared that
Kramarczyk had not submitted written reasons for her action, as required by the
International's constitution. It was here further pointed out that Kramarczyk's
discharge "as such" had not been requested: "her employment will be terminated
under conditions of the contract. . . . The Guild is merely asking that this agree-
ment be kept." Such euphemism must be recognized for what it is: Kramarczyk's
discharge had been requested in the letter of June 22 , and as noted the answer so
admits.
On August 14 the Union advised the Company that "as stated previously, the
management has not properly enforced the contract in this case ," and that the case
"must" be arbitrated. On August 16 the Company notified the Union that it would
not arbitrate a matter which it was "convinced is in violation of the law," and that
1 The question has not been raised, and we need not decide, whether the warning that
present action might affect her "future" elsewhere, was violative of Section 8 (b) (1) (A).
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it had referred the matter to this Board. By its letters of June 22 and August 14,
the Union requested and insisted that the Company discharge Kramarczyk because
she was not a member in good standing in the Union.
The Union argues in defense that, Kramarczyk having paid her dues for February
1956, she was in good standing under the Union's constitution, through the month
of March, and that she was therefore in good standing 30 days after execution of
the agreement of February 15; 2 and that she had failed to comply with the provisions
of the constitution relating to resignation or "offer to withdraw or to resign from
membership." 3
Reference to the "good standing" provision was made to show that, were there
no resignation, Kramarczyk would be under obligation to maintain her membership.
It has not even been claimed that the right to resign can be denied for the sole reason
that the member is in good standing. On the issue of resignation, attention and
emphasis have been directed to Kramarczyk's failure to abide by the provision con-
cerning resignation mode and procedure. It being clear that she did not state
reasons for her resignation and that she did not follow the procedure set forth in
the constitution, copy of which was available to her and notice of which was given
in the Union's correspondence with her, we have now reached the issue earlier
declared: whether her statutory right to refrain from union activities was nullified by
her failure to resign from the Union in the manner acceptable to it, such failure
allegedly leaving her a member in good standing beyond the 30-day escape period.
Here we must distinguish between an employee's union relationship and his em-
ployment relationship. Having paid dues, Kramarczyk might be considered by the
Union to be in good standing through the next calendar month. In fact, we would
not be concerned if the period of good standing were extended indefinitely. Con-
versely, the period of good standing might be limited or other condition imposed which
the employee might, justifiably or not, consider unjust or unreasonable; and so long
as the matters were confined to internal union affairs, we should no more concern
ourselves with them, but should leave the parties to their remedy elsewhere. Hence
we need not determine the effect, as between member and union, of provisions under
which, once having joined, members might be required to continue as such throughout
their lifetime, any reasons to the contrary to be passed upon by the union. But
the Board is required to pass on matters which affect the employment relationship
and specifically the right of employees to engage in or refrain from engaging in
concerted activities for their mutual aid or protection. And the Board has long ago
held that such rights may not be limited by union regulations.4 Were the law other-
wise, escape clauses could uniformly be made of no effect, and violence would be done
to such contract provisions by the very party which claims, as the Union does here,
that a finding against it would do violence to the employee-union contractual rela-
tionship. We do violence to neither if we distinguish between the two relationships.
Whatever the requirements of the Union's constitution as related to the organization's
internal affairs and its relations with its members, such requirements, to the extent that
they call for action beyond the proviso of Section 8 (a) (3) of the Act or would
limit it, cannot lawfully be made to intrude upon the employment relationship.
On behalf of the Union it has been argued that the provision for an escape period,
with regulation of resignations, as here, is lawful since the parties could enter into a
2 Presumably only those who were lax in payment and "delinquent" could avail them-
selves of the escape clause, i. e., if they had not paid dues beyond January, so that their
good standing would not continue beyond the end of February. But, as we shall see, the
Union's constitution would allegedly limit even such delinquents in any attempt to resign.
3 Article X, section 16 of the International's constitution provides as follows :
Any offer to withdraw or to resign from membership in the Guild other than for the
reasons set forth in Section 14 of this Article shall be submitted in writing to the
governing board of the Local, together with the reasons, in detail, for such contem-
plated withdrawal or resignation. The governing board of the Local shall thereupon
inquire into the causes and report on the truth and sufficiency of the same to the
membership of the Local at a membership meeting. The membership shall thereupon
vote on whether such withdrawal or resignation shall be accepted or rejected. Any
acceptance shall always be conditioned upon full payment of all financial obligations
due and owing to the Guild. Upon the rejection of any offer to withdraw or resign,
the membership obligations of the member making such offer shall continue in full
force and effect. A copy of the offer to withdraw or resign, together with the action
taken by the Local thereon, shall be forwarded to the IEB [International Executive
Board]. Such action shall not become final until approved by the IEB.
4 Republic Steel Corporation, 62 NLRB 1008, 1029-1030. See also New Jersey Bell
Telephone Company, 106 NLRB 1322, 1324.
NEWSPAPER GUILD OF BUFFALO 1479
contract with no escape period. The short answer is that what the Company and the
Union could lawfully do by agreement does not justify union action alone without such
an agreement. The argument made at least recognized that a union constitution pro-
vision "which affects in any way the right of the member to resign" might be against
public policy and unenforceable. If, as was indicated by counsel for the Union, a
prohibition against resignations or a requirement that membership be continued
indefinitely may be against public policy, then surely a union constitution provision
which imposes conditions for resignation, provides for the Union's unilateral determi-
nation of the sufficiency of such reasons, and in fact enables the Union to insist on
indefinite continuance of membership may not be asserted to support a discharge or
an attempt to cause discharge; and when so asserted to an employer as here, it is an
unlawful attempt to cause the employer to discriminate.
Argument has further been made that this is no case of reasons submitted and de-
clared insufficient; Kramarczyk gave no reasons for her resignation. But the Act
imposes no requirement of reasonableness or even statement of reason, whatever its
sufficiency, as a condition precedent to an employee's right to engage or refrain from
engaging in concerted activities. What if a union member wants to resign without
reason? The Union's desire to learn a member's reasons and its expressed desire for
an opportunity to persuade him to continue his membership (aside from any question
of sufficiency of reasons) is understandable. Equally understandable would be the
desire to require nonmembers to listen to the Union's reasons why they should join
in the first place. But neither can lawfully be asserted as a right. It may indeed
be desirable for people fully to discuss and carefully to weigh many issues. But
we are not to equate desirability with compulsion.
The Union's claimed justification being insufficient, I find that by its requests and in-
sistence of June 22 and August 14 it unlawfully attempted to cause the Company to
discriminate against Kramarczyk. Further, since it did not have the right, by action
against her, to "affect (her) future" or to enforce the maintenance-of-membership
provision against her, the Union, by its letters of April 20 and May 1, unlawfully
restrained and coerced Kramarczyk in the exercise of the rights guaranteed in Section 7
of the Act.
We come now to the Union's argument addressed to the question of policy, it
being urged that the Board should not pass on this case until after the grievance and
arbitration procedure set forth in the agreement has been followed. In support of
this argument, it is pointed out that the collective-bargaining agreement contains
grievance and arbitration provisions and that the Union invoked such provisions; and
cases are cited in which the Board accepted an arbitrator's decision as reasonable.
But Kramarczyk filed no grievance under the collective-bargaining agreement, and
the issues were never submitted to arbitration. We have no suggestion of waiver of
statutory rights or procedure by submission of the issues elsewhere on the part of either
the employee or the employer. Nor has the Board been limited in its action even
after an arbitrator's award.5 The Board is not to be denied its right to proceed nor
should it deny itself the fulfillment of its duty to protect the rights of employees under
the Act. Further, and as noted by the General Counsel, in any arbitration of
Kramarczyk's resignation and status, between the Company and the Union, the latter
would occupy an anomalous position.
The Board has recently considered the general issue before us. In Marlin Rock-
well Corporation,6 quite analogous to the situation here, "The Union's official posi-
tion 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 (the) pro-
ceeding." Considering the collective-bargaining agreement, the Board there de-
clared, at page 557:
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 employees concerned.
The Board then noted that, to overcome what appeared to the Board to be a fair
construction of the agreement, the union raised two points. The first was that the
contract required maintenance of membership throughout its term and that the
resignations were submitted during that period. Citing reasons and authorities, the
e Monsanto Chemical Company , 97 NLRB 517, 520.
6114 NLRB 553, 554.
1480 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, at page 560, succinctly disposed of this point as follows: "For we regard
the withdrawal by employees from a union to be an act not qualitatively different
from the refusal by employees to join a union." It should be noted that the agree-
ment in the instant case specifically provides an escape period and, unlike Marlin
Rockwell, we have no question concerning the timeliness of the resignation.
The second point there raised, as here, was that "the internal Union-member con-
tract (expressed to the extent [t]here relevant in the Union's constitution)" restricted
"voluntary resignations." On this point, the Board said, at page 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 employees committed
a patent breach of their union membership contract 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 following their acts of
disaffiliation from the Union can be viewed, factually, as attempts to remedy
the effect of an employee breach of an intraunion membership contract.
But on the issue of the union's right "to use the sanction of actual or threatened
discharge," the Board declared, at pages 561-562:
As we read the 8 (b) (1) (A) proviso, its sole purport is to guarantee 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 membership 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 incidental benefits of union membership as provided by internal union
legislation.l$
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 presented here, the Board cannot and will
not judge the reasonableness or unreasonableness of any clearly evidenced act
of employees establishing their intent to be nonunion. Nor can it interpret
such employee action in terms of either a bargaining agreement's language or
that in an intraunion membership contract. For to do so would disregard the
provisions of Section 7 of the Act.
'A See the International Typographical Union case, supra, note 17. Cf. Knuer-
Empson Company, 106 NLRB 670.
The findings of violation herein made are entirely in harmony with and supported
by the decision in Marlin Rockwell.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section II, above, occurring in connection
with the operations of the Company described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
N. THE REMEDY
Having found that the Union has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Union has violated Section 8 (b) (2) of the Act by
requesting and insisting that the Company discharge Kramarczyk because she was
not a member in good standing in the Union. I shall therefore recommend that the
Union cease and desist from making such demands and so insisting.
It has been further found that the Union has violated Section 8 (b) (1) (A) of
the Act by threatening Kramarczyk with loss of her job if she did not maintain
membership in good standing in the Union. I shall therefore further recommend that
the Union cease and desist from making such threats.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 1481
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Newspaper Guild of Buffalo, Local #26, American Newspaper Guild (AFL-
CIO), is a labor organization within the meaning of Section 2 (5) of the Act.
2. By attempting to cause Niagara Falls Gazette Publishing Corporation to dis-
criminate in regard to hire and tenure of employment in violation of Section 8 (a) (3)
of the Act, the Union has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (2) of the Act.
3. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
International Longshoremen 's Association , Independent , William
V. Bradley, its president , and Patrick J. Connolly, its executive
vice president and chairman of its wage scale committee,
Atlantic Coast District and New York Shipping Association,
Inc., and its employer -members, named in Appendix "A"
attached hereto . Case No. 2-CB-1841. September 30, 1957
DECISION AND ORDER
On January 14, 1957, Trial Examiner Albert V. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease therefrom and take
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondents and the General Counsel
filed exceptions and briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Jenkins].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed? The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
1 The Respondents' request for oral argument is denied as, in our opinion , the record,
together with the exceptions and briefs , fully presents the issues and the positions of the
parties.
2 Although we disagree with the Trial Examiner in his rejection of the offer by the
Respondents of the record in Case No. 2-RC-8388 as part of the record in the instant
case , we note that he, nonetheless , admitted such evidence in the record for another
reason. Under the circumstances , we find that his ruling , although erroneous , was not
prejudicial.
118 NLRB No. 199.