Oil, Chemical and Atomic Workers Int'l Union

National Labor Relations Board - Board Decisions

Aug 28, 1964

148 N.L.R.B. 629 (N.L.R.B. 1964)

OIL, CHEMICAL AND ATOMIC WORKERS INT'L UNION 629
WE WILL NOT restrain or coerce Richard William Fields, or any other em-
ployee of Yellow Cab Company , in exercising the rights guaranteed employees
in the National Labor Relations Act
WE WILL give Richard William Fields whatever backpay he has lost
CHAUFFEURS UNION LOCAL 265 INTERNATIONAL
BROTHERHOOD or TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
Labor Organization
Dated---------------- --- By-------------------------------------------
(Rcpresent'itire ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material
Employees may communicate directly with the Board 's Regional Office, 830 Market
Street, Room 703, San Francisco , California, Telephone No 556-6721, if they have
any question concerning this notice or compliance with its provisions
Oil, Chemical and Atomic Workers International Union, AFL-
CIO and its Local 8-718 and United Nuclear Corporation, Fuels
Division . Case No 1-CB-877 August 28, 1964
DECISION AND ORDER
On May 15, 1964, Trial Examiner A Norman Somers issued his
Decision in the above-entitled proceeding, finding that Respondents
had engaged in and were engaging in certain unfair labor practices
violative of Section 8(b) (1) (A) and 8(b) (2) of the Act and recom-
mending that they cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Decision Thereafter the Gen-
eral Counsel, Respondents, and Charging Party filed exceptions to the
Trial Examiner's Decision and supporting briefs In addition, Re-
spondents filed a reply brief to the exceptions of the Charging Party
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Jenkins]
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed The rul-
ings are hereby affirmed The Board has considered the Trial Ex-
aminer s Decision, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with certain additions 1
The record discloses that on Tuesday, February 12, 1963,2 the Com-
pany and Respondents executed a collective-bargaining agreement
' Both the Charging Party and the General Counsel except to the Trial Examiner's fail
ure to find that Respondents' filing of a grievance with respect to its dispute with the
Company was violative of the Act Under the circumstances of this case , we find it un-
necessary to pass upon this Issue
2 All dates refer to 1963 unless otherwise indicated
148 NLRB No 72
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
which included a maintenance-of-membership clause." For payroll
reasons, the effective date stated in the' contract was Monday,
February 11. '
On April 29, Respondents, by fetters, demanded payment of union
dues for January from 50 employees and informed them that payment
of such dues was a condition of their continued employment by the
Company. On May 14, Respondents, by letters, requested the Com-
pany to demand that the 50 employees pay their January dues
pursuant to the maintenance-of-membership clause. Copies of the
letters'demanding dues payment from the individual employees were
enclosed with the letters to the Company.
In August, Respondents sent letters to 16 employees who, we find,
had resigned prior to the signing of the contract on February 12,
informing them that they were required to pay dues for February and
subsequent months as a condition of employment.4 On September 27
and November 19, Respondents sent letters to the Company listing
employees who, Respondent stated, had failed to meet their dues
obligation since February. Included in these lists were employees who
had resigned from the Union prior to February 12. -
We agree with the Trial Examiner that Respondents, by attempting
to invoke the sanctions of the maintenance-of-membership clause
against employees for nonpayment of January dues and against em-
ployees who had resigned from the Union prior to the signing of the
contract, violated Section 8(b) (1) (A) and (2).
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondents Oil, -
Chemical and Atomic Workers International Union, AFL-CIO, and
its Local 8-718, their officers, agents, representatives, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order. •
3 The maintenance -of-membership clause provided as follows:
Any employee who is a•member in good standing of the Union as of the date of this
agreement or who thereafter voluntarily joins 'the Union during the term of this agree-
ment shall remain a member of the Union in good standing as a condition of employ-
ment by the Company. For the purpose of this article, an employee shall be considered
a member of the Union in good standing if he tenders the periodic dues and the initia-
tion fees uniformly required as a condition of employment
* All except 2 of these 16 employees , Petron and Torino, had also received. the letter of
- April 29 requesting dues payment for January.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE, CASE
This case , with all parties represented , was heard before Trial Examiner'AT. Norman
Somers in New Haven , Connecticut , on December 11, 12, and 13 , -1963, on the
OIL, CHEMICAL AND ATOMIC WORKERS INT'L UNION 631
amended complaint of the' General Counsel alleging (and answer of Respondents'
denying) violations of Section 8(b)(2) and 8(b)(1) (A), of the Act.' The parties
waived oral argument but have filed briefs, which have been duly considered. Upon
the entire record (as corrected on notice;to the parties) and my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Charging Party,'United Nuclear Corporation, Fuels Division (hereinafter
called the Employer or the Company), is a Delaware corporation, with its plant and
office in New Haven, Connecticut. It sells and distributes nuclear fuels and related
products in an amount exceeding $1 million a year, its operations having a substantial
impact on national defense . The Board's commerce jurisdiction is undisputed.
II. THE LABOR ORGANIZATIONS INVOLVED
Oil, Chemical and Atomic Workers ' International Union , AFL-CIO and its Local
8-718 (hereinafter respectively referred to as the International and the Local, and,
where the sense so indicates , collectively referred to as OCAW or the Union) are
labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICE
A. Issue
On February 12, 1963, the International and the Local executed a contract with
the Company, containing a maintenance-of-membership clause. Thereafter, in-
voking that clause, this Union made demands for payment of dues as a "condition
of employment," which the General Counsel attacks as violative of Section 8(b) (2)
and 8(b) (1) (A) and not sheltered by the maintenance-of-membership contract?
These were: (a) demand on 50 employees to pay the dues for January 1963, that
being the month before the 'contract was executed or took effect by its own terms;
(b) demands for payment of dues for months within the term of the contract made
on 16 employees who are claimed to have effectively resigned from membership
in time to escape the obligation of the maintenance-of-membership clause.
_ B. The achievement of membership
The Charging Party, while going along with the General Counsel's theory of
liability, alternatively advances a more expanded theory, which calls for a brief
discussion of the topic here considered.
The International began to organize the employees of the Company early in
1962. A provisional local was formed for these employees, but it did not receive
its charter until November 1962, or about 4 months after the International was
certified by the Board after an employee election. Although the International's
constitution sets forth a detailed series of steps for achieving membership (such
as approval of an application by a majority of the membership, formal initiation,
and oath of membership to be taken by the "successful" applicant), in actual prac-
tice, membership was extended on payment of the initiation fee of $5. The
receipt, as issued before Respondent Local Was, chartered, credited the paying em-
ployees with the dues for that month and stated that the next dues payment would
be for the month after certification. On the basis of the results of an employee
election held in April 1962, the International was certified by the Board on July 17,
1962. When the Respondent Local got its charter in November, all who paid the
$5 initiation fee, either before then or in November of that month, received an
"initiation fee receipt" showing them to have been initiated as of "12-31-62," thus
making January 1963, the first month for which dues were payable by them. The
practice of conferring membership on payment of initiation fee would seem to have
continued throughout the material events here considered. This is exemplified
by what happened on January 20, when the Union, during negotiation of the con-
tract, held a strike vote meeting, and on February 3, when it held a meeting to
ratify an agreement reached by its negotiators with the Company a few days earlier.
1 Charge filed September 3, complaint issued October 17, and amended complaint issued
November 8, 1963
2 The validity of the contract as such is not in dispute.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any' employee who had not paid the initiation fee of $5, on, paying that amount,
was admitted to the meeting and permitted to vote. Also, his name was entered by
the financial secretary on the roster of members in attendance.
The General Counsel does not dispute that 'a membership relation thereby arose,
which put any such employee to the necessity, of making a timely, resignation if he
wanted to escape from the maintenance-of-membership obligation. The Employer,
here the Charging Party, disputes this. 'It' suggests that no membership relation
arose in the first place, because the requirements of membership under the con-
stitution (termed therein as "mandatory") had not been observed. The Company
concedes an exception in regard to one employee, Pasquale Luciano, who attended
an, organizational meeting back in April 1962, when all who attended, whether
they paid the fee or not were sworn in en masse, it being understood that this con-
ferred'membership only pn those who, like Luciano, paid or would pay the initiation
fee. However, as to him and all persons who paid the fee at that early stage, the
Charging Party points out that their receipts stated that their'next payment would
be due the month "after certification." . Since certification was achieved in July 1962,
and those persons made no payments thereafter, the Charging Party urges that
they-were thus more than 90 days in arrears, well before the contract was made,
and hence under the constitution were no longer "in good standing" as members
of OCAW when the maintenance-of-membership clause took effect.
This, of course, expands upon the 'theory of liability on which the General Coun-
sel relies, and it may well be questioned whether the Charging Party can thus ex-
pand upon the theory of the complaint. The above apart, it would seem enough
that the course of conduct between the Union and the paying employees was
premised upon the existence of a membership relation, wherein the Union granted
them and they availed themselves of the prerogative of membership, including
participation and voting at membership meetings . In these ' circumstances , the em-
ployees in question would be estopped from repudiating the relationship ab initio on
the basis of circumstances preceding their acceptance of the prerogative of mem-
bership, even if they had sought to do so. They never did so nor did they ever
deputize the Company to try to do it for them. Accordingly, the consideration
of the issues herein. will be premised upon the existence of a membership relation,
and the question will be whether they made timely resignations; which were effec-
tive to take them out of the operation of the maintenance-of-membership clause.
-C. The maintenance-of-membership clause and the resignations tin issue
By January 31, the Union's negotiating committee and the Company reached a
basic accord as to terms. The Company summarized them in an ("Outline of
Agreed Contract," which it'handed to the Union' s negotiators . These were read
off by the Union's officers to the assembled membership at the ratification -meeting
held on February 3. After a majority of the group voted in favor of ratification,
the Company drafted a contract in formal terms, which it handed the Union's
representatives'on February 9. A final negotiating session was 'held on February 12,
which began about 1:30 p.m. 'and lasted about 3 hours. About 4:30 p.m. that
day; the agreement was signed by all parties, the contract stating its "effective date"
to be February 11.3 The contract as signed incorporated the maintenance-of-member-
ship clause as it appeared in the "Outline' of Agreed Contract," reading as•follows:
Any employee who is a member in good standing of the Union as of the
date of this agreement or -who thereafter voluntarily joins the. Union during
the term of this agreement shall remain a,,member of the Union in good stand-
ing as a condition of employment by the Company. , For the purpose of this
article, an employee shall be considered a member of the Union in good.stand-
ing if he tenders the periodic dues and the initiation fees uniformly required as
a condition of employment.
"The claimed resignation of the 16 persons here in'issue came in the wake of a
heated debate over the terms of the contract as read off at'the ratification meeting,
the members of that group opposing it for various reasons. Five testified that they
orally announced their resignations to Paul Dyer, the Local's financial secretary, at
the end of the meeting (one of them following this up with Dyer that same week).
In their case, the issue is not the timeliness of their action, since it was taken well
before the "date of the contract," however that term is construed, but of the effective-
3 On the other hand, as later indicated, the "Outline of Agreed Contract," as read at the
ratification meeting, stated "the effective date will he the date of signing "
OIL, CHEMICAL AND ATOMIC WORKERS INT'L UNION 633
ness of the action taken in communicating the fact of resignation. In the case of
the remaining 11, the issue is the other way: they sent wires of resignation on
February 11 to the Local's president, which were read off to him before the start of
the final negotiating session of February 12, so that while the means of communica-
tion used is unassailable, the issue as to them is one of timeliness: were their wires,
though received by the Union prior to execution of the agreement, nevertheless too
late because the agreement as signed stated that it was effective as of the-preced-
ing day?
D. The particulars of the resignation announcements
1. The oral resignations of five at the ratification meeting
The five who testified they announced their resignations at the end of the ratifica-
tion meeting are Robert Moore, Richard Petron, Francis Torino, Pasquale Luciano,
and Nicholas Pergamelis. Each testified he so stated to Financial Secretary Dyer, who
acted as the door guard and as the keeper of the list of the members in attendance.
Luciano and Pergamelis testified that immediately after the meeting had adjourned,
before speaking to Dyer, they mounted the platform (where Hanlon, the Local's
president, and Harold Sterling, the International's representative, had been conducting
the meeting), and expressed the same intention to Hanlon as well. It should be stated
that the International's constitution and the Local's bylaws are silent on the subject
of resigning, and in any event these documents had neither been distributed to nor
seen by the membership. The officials interrogated were hardly informative on that
score. Luciano testified Hanlon made no reply and that Dyer answered "that was
[Luciano's] privilege." Pergamelis testified he asked Hanlon "how I would go about
resigning from the Union and he just looked at me and had a smirk and had no com-
ment. So then I told him that I resigned." Pergamelis testified Hanlon had greeted
Luciano's statement too with a "smirky smile" and that Dyer was silent when he
announced his resignation to him on the way out. Moore testified that on the way out,
he "told Paul Dyer to strike [his] name from the records," and Dyer "grunted or
something." Petron testified ,that on the way out he told Dyer he "wanted to resign"
and Dyer replied something to the effect that "We'll see what we can do about it,"
and that at this point Moore, who was with him, said "he wished that his name be
stricken from the list or record or naper-" and he chimed in, saying "Well, that
goes for me too." Torino testified that when he told Dyer on the way out that he
"wanted to terminate [his] membership," Dyer retorted with "Well, what do you
want me to do about it," whereupon "I told him he could take it and do what he
wanted with it, and I handed in my membership receipt card, and he didn't want
to accept it, so I put it on the table."
Hanlon and Dyer neither affirmed nor denied that the above occurred. Their
testimony was that at the end of the meeting there was a general milling around of
people who were firing all sorts of questions at them, that they could not single
out any of these five in memory from the rest of the group and so they had no
recollection either way about whether these five approached them on the subject of
resigning.
From what the General Counsel's witnesses testified concerning the general
atmosphere. there would seem to be little doubt of the tumult and excitement which
prevailed at the end of that meeting Of the five here discussed only Moore followed
up the announcement of resignation with later action For the remainder of that
week, he virtually hounded Dyer at the working area with reminders of it. He ap-
proached Dyer four times that week and also on Monday, February 11, the day before
the contract was executed .4 Moore testified that: on Monday, the 4th. he asked Dyer
if he had "taken [[his] name off the books"; the next day he asked him about the
procedure for resigning, and Dyer responded that "the only way [he] could get out
was not pay [his] dues for 90 days," and he retorted that "as far as I was concerned
I was out"; the next day, still at the job, he wrote out a letter of resignation, and
handed it to Dyer, saying, "Paul, I have a letter of resignation, and I'd like you to
sign it showing that you received a letter of resignation from me," and Dyer "refused
to sign it, and he refused to look at it"; the day afterward, while they were in the
cafeteria, "I asked him if he had submitted my resignation, and he was perturbed and
he said, `O K., so you resign, what the Hell do you want me to do about it"'; and
finally on Monday, February 11, he again was reminded by Moore of his resignation,
Dyer asked him the reason, and he replied it was a "crummy contract" and "pointed
out . how [he] lost money in the darn thing"; Dyer (after some discussion of
why Moore had refused to serve on the negotiating committee to which he had been
* Moore testified that it was "common knowledge throughout the shop," that the final
meeting for signing the contract was to take place on Tuesday, February 12.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elected ) said , "You only resigned to me," and Moore answered , "You're the senior
officer as tar as I know that I can make contact with , and when I tell you something
I may as well tell Hanlon or any of the officers." 5
Dyer did not specifically address himself to these several conversations occurring
after the ratification meeting, but testified he had one with Moore about the subject
of resigning "within two or three week time period after that ratification meeting,"
which put it well after the contract was signed . On being shown his pretrial af-
fidavit , he admitted the accuracy of his statement in it that Moore tendered him the
resignation paper "about a day or two after the meeting . maybe as much a
week," in either instance before the date of contract , - as' Moore testified . Dyer's
affidavit also stated (and he confirmed this at the hearing ) that when he rejected
Moore's resignation, he "told him that the only way to get out of the Union was not
to pay his dues for three months and fall out of being a member in good standing."
Moore 's testimony , thus impressively corroborated by Dyer, warrants being
credited in its entirety and it is. This bears on how to evaluate Dyer's testimony that
he did not recall whether Moore first announced his resignation to him at the end of
the ratification meeting. The various reminders Moore gave Dyer about it through-
out the week would expectably give Moore's action on Sunday a special place in
Dyer's memory, whatever might be said for the others . This serves to undermine
his claim that he did not recall that Moore told him at the ratification meeting
that he was resigning . Bearing on the case of the other four, whose resignations at
that time Dyer similarly testified he did not recall, is Dyer's testimony that various
employees had asked him how they could resign and that on finding nothing about
the subject in the secretary -treasurer 's manual or the constitution other than the
90-day default provision , he got "into the groove" of telling them "over and over
again" that they could only terminate their membership by failing to pay their dues
for 90 days . He admitted he said that to at least one employee at the ratification
meeting, and while claiming he did no recall whether it was "one or several em-
ployees," the most likely occasion for his being approached on the subject by more
than one employee , as he admitted had happened , would be that meeting This
cogently confirms that the five in question at least spoke to Dyer about the subject
of resigning . Being thus corroborated, they are credited on the score of having
told Dyer ( and Luciano and Pergamelis having also told Hanlon ) they were resign-
ing 6 In that connection , I find it difficult to believe that Dyer would not at least
have remembered Moore's and Luciano's coming to him , because (apart from
Moore's follow -up action previously mentioned ) they were specially prominent as
"charter members" of the Local . Hanlon would have had reason to remember
Luciano 's approach for the same reason. Being thus discredited on that score it is
difficult to credit Dyer 's claimed lack of recollection concerning the other three and
Hanlon 's concerning that of Pergamelis , as well as Luciano. Moore's case does not,
of course , rest merely on the action he took at the ratification meeting , and unless
I misread Respondent 's brief, the sufficiency of his follow -un action would not
appear to be in contest . The sufficiency of the action taken by the other four is
deferred to the conclusionary discussion.
2. The resignations wired in by 11 employees before the contract was executed
The names of the 11 employees in that category are stated in the footnote be-
low 7 About a day or two after the ratification meeting, some or all of them
came to Albert Pine , an old employee of the Company, who was hostile to unions.
Each handed Pine a paper addressed to the Company's personnel manager , to whom
Pine delivered it at the writer 's request , saying in substance he no longer wished
5 President Hanlon admitted that the financial secretary has charge of membership lists,
including entering the names of the new members and striking those who were terminated
The initiation fee receipt is signed by the financial secretary
0In that connection , I am not unmindful of certain infirmities in the testimonies of
Luciano and Torino concerning collateral details After giving due weight to them, I find
the circumstantial corroboration of their testimony , as well as its relative quality as
against the opposing testimony , is sufficient to warrant their being credited , along with
Moore, Pergamelis , and Petron , concerning the basic fact of having said at the meeting
that they resigned
7 They are : Andrew Candelora , Nicholas Candido , Fortunato Cocco , Lawrence Fusco,
Salvatore Iovieno , Michal J Laccone , Robert Mingioni , Vincent Ponzo, David Zotti, Frank
Ferucci, and Frank Cusano
OIL, CHEMICAL AND ATOMIC WORKERS INT'L UNION 635
to be represented by the Union and tendering his resignation . The personnel man-
ager , in turn , gave them back to Pine . These employees then wrote out resigna-
tions and requested Pine to wire them in to Local 's President Hanlon at his home 8
Pine gave the various messages on the telephone to Western Union and had them
charged on the respective telephone bills of these employees. The various -wires
are in evidence and though the wording is not in all instances identical , the following
is typical of the group:
BE INFORMED THAT AS OF THIS DATE, WE, THE UNDERSIGNED
RESIGN FROM LOCAL 8-718
Ten of these wires were filed with Western Union by telephone on February 11.
The telegraph company communicated them to Hanlon , six on the same day and
the remainder on the 12th, the latest at 10:35 a.m. The last or 11th wire was
filed by telephone with Western Union on February 12• at 11:28 a.m. and Western
Union telephoned it in to Hanlon at 12:20 p.m., an hour and 10 minutes before
the final, negotiating session at which the contract was signed. (Hanlon's home is
15 miles awayfrom the plant.)
Respondents contend that the wires came too late because the contract stated
that its effective date is February 11. That date was proposed by the Company to
the Union's officials when it handed them the draft of contract on February 9. The
reason was that February 11 fell on a Monday, when the Company's payroll week
begins; and by making it effective on that day, it avoided the awkwardness of com-
puting the employees' pay for that week on the basis of two different rates.
Respondents argue that thereby the maintenance-of-membership clause became ret-
roactively effective by that one day as well. Respondents' difficulty is that their only
communication to the membership on that subject was to the contrary. As stated
before (supra, footnote 3), the "Outline of Agreed Contract" which the Union's offi-
cials read-off to the membership at the ratification meeting provided as follows:
31.0 DURATION OF AGREEMENT
As in labor contract clauses tentatively agreed 11-28-62 except that the effec-
tive date will be date of signing and the expiration date will be two (2) years
later.
President Hanlon, during his testimony, conceded that the members had been given no
information varying from the above. As previously mentioned (supra, footnote 4),
Moore testified that it was "common knowledge throughout the plant" that the con-
tract would be signed February 12, and the reasonable expectation of the rank and file
was that that fixed the deadline for their escape period.
E. Concluding findings
1. Concerning the demand for dues for January 1963, the month
preceding the contract
It is settled that a union-security contract, even if legal under the 8(a)(3)
proviso, is enforceable only in respect to "dues for the period of employment .
during the term of the contract." Montgomery Ward & Co., 121 NLRB 1552, 1558;
Monsanto Chemical Company, 97 NLRB 517, 519. This is not to say that a
union is foreclosed from applying other sanctions for dues obligations validly in-
curred during months other than the period of the union-security contract, such
as, for example, by a suit for debt in a State court. It is merely to say that whether
or not the members owe the dues as demanded, the only dues obligations to which
the sanctions of the union-security contract can be applied consistently with Sec-
tion 8(a)(3) of the Act are, those for the months within the contract period. See
Marlin Rockwell, 114 NLRB 553, cited in Local 283, United Automobile, Aircraft
and Agricultural Implement Workers of America, UAW-AFL-CIO (.Wisconsin
Motor Corporation), 145 NLRB 1097, footnote 35. Respondents would not seem
seriously to dispute this, but claim that the demand for the dues for January was not
unlawful "under all the circumstances." The circumstances relied on were that
when the Union on April 29, 1963, demanded of the 50 employees in question that
8 Hanlon (who is an employee of the Company) testified he performs his business as
president out of his home The Board's appearance form No. 1801 (which was placed on
the record after being checked by the respective parties) gives Hanlon's residence as the
Local's address
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they pay the January dues as a "condition of employment ," they were in default
also for the dues of February , March, and -April , and were subject to discharge
for the default for those 3 months. - The short answer is that the month for which
payment was demanded under sanction of discharge was that of January, which was
outside the period of the contract . What Respondents could have done because
of the failure to pay the dues for February , March , and April, which were within
the contract period, does not alter the legal posture of its efforts to invoke the sanc-
tions of the contract to enforce payment of dues for -a month outside that period.
2. Concerning the 11 who wired in their resignations
before execution of the contract
Although these 11 are later in chronology than the 5 who announced their
resignations at the ratification meeting, I treat their situations first - because theirs
is the more clear-cut issue . We are not confronted here with the general question
of whether a contract whose terms are stated to be retroactive to an earlier date is
thereby also retroactive in respect to the escape period under a maintenance-of-
membership clause. Even as thus generally stated, it can be readily seen that
if it were legally possible thus to make a maintenance -of-membership clause retro-
actively effective , it would invest the parties to a contract with power to shut off
all avenues of escape from membership : this could be done by making the contract
retroactive to a date preceding the one in which the members had cause even to
know that a maintenance -of-membership contract was under consideration. Pre-
sumably this kind of consideration underlies the Board -sustained holding of the
Trial Examiner in May Department Stores, Inc., Kaufmann Division, 133 NLRB
1096, 1109 , footnote 16 that "notwithstanding the fact that the . contract was
made retroactive . the execution date rather than the retroactive effective date
[is] controlling insofar as application of the maintenance -of-merrtbership provisions
are [sic] concerned ." We are not confronted with that issue in such an abstract
posture. Even if the threshold presumption were the reverse of the holding in
May Department Stores, it would not avail the Union here . This is because its only
communication to the membership on that subject was the "duration " clause in the
"Outline of Agreed Contract" as read off at the ratification meeting, namely, that
"the effective date will be the date of signing." At no time did Respondents act
to inform the membership that the signals had been changed and that the opera-
tive date would be one preceding the date of execution . Accordingly , even if, con-
trary to what is apparently controlling doctrine, a maintenance -of-membership
clause could be made retroactively effective to a date preceding execution , the Union
would be estopped from availing itself of it by virtue of the understanding it con-
veyed to the membership at the ratification meeting and on which those who sent
the telegrams reasonably relied.
I accordingly - find that the maintenance -of-membership obligation first achieved
binding force at the time of the execution of the contract on February 12, and
that the 11 employees here under discussion had timely terminated their membership
by the telegraphic resignations which were wired to and received by President Han-
lon before that took place.9
3. The five who orally communicated their resignations
In that category we have no problem in respect to Moore, since he followed up his
announcement to Financial Secretary Dyer at the end of the ratification meeting
with reminders of it throughout the remainder of the week.
Respondents urge that "the circumstances here require a written communication
from ,the employees to the Union ." They distinguish the contrary holding in May
Department Stores, 133 NLRB 1096, 1109-1110 , on the ground that there a union
9 Respondents claim such a result would offend the doctrine of Local Lodge No. 14211,
IAM (Bryan Mfg Co .) v N L R B ., 862 U . S 411 That case shields a contract which is
legal on its face from being declared illegal on the basis only of circumstances surrounding
its execution , which occurred before the 6-month limitation period stated in Section 10(b).
The issue here is not the legality of the contract but its interpretation : were the employees
in question members of the Union as of the date the maintenance -of-membership clause
became operative as to them9 Respondent ' s contention is that to hold that the clause did
not become retroactively effective as of the date appearing on the contract is, in effect, to
declare the clause illegal This is not so. It is not a question of the legality of the clause
but when , within the contemplation of the parties involved ( in this instance the Union in
its relation to the employees ), it reasonably and equitably can be said to have taken effect.
OIL, CHEMICAL AND ATOMIC WORKERS INT'L UNION 637
official "testified that the Union would honor oral resignations ." Depriving that ele-
ment of distinguishing force here is that the members had been given no information
regarding the requisite procedure for resigning . There was no provision concerning
it in the constitution or the bylaws; the inquiries on that subject were greeted by
President Hanlon ( as one of the two employees who approached him on the platform
described him) with a "smirk"; and Financial Secretary Dyer , by his own admission,
told them they could not terminate their membership except by defaulting in payment
of dues for 3 months. This , in effect, meant doing so by rendering their jobs forfeit,
so ,the employees were left to their own devices for avoiding this form of economic
hari-kari . In these circumstances , "the . employees [ who] sought to terminate
their union affiliations [were obliged merely to take ] steps reasonably calculated to
give proper notice." [Emphasis supplied .] District Lodge 67, International Associa-
tion of Machinists, AFL (Addressograph-Multigraph Corp.), 110 NLRB 727, 736.
On the above score, the failure of the four other than Moore to follow up their
announcement to Dyer at the end of the ratification meeting is in contrast with
Moore's hounding Dyer throughout the week. The contrast would be invidious had
Respondents given any indication that they attached any importance to the kind of
communication employed. It is clear , however , from Dyer 's responses to Moore
that no amount of followup on the part of the other four in this group would have
done any good . Nothing more clearly underscored this than Dyer 's rejection of the
written resignation which Moore proffered him. Even if Respondents' position
that a "written communication" was required for an effective resignation were other-
wise meritorious , the rejection of that very kind of communication when tendered
serves to deprive them of standing to urge it here, since "it is an gold maxim of law
that it compels no man to do a useless act." 10 Giving that maxim even further
reach here is the totality of Hanlon 's and Dyer's responses to the resignation an-
nouncements at the end of the ratification meeting . The claim that in the turmoil that
prevailed they were in no position to pay particular attention to the resignations
announced by these five persons is weakened by the fact that Dyer had the member-
ship list with him and it would have been an easy matter to cross "their names off, as
Moore and Petron specifically suggested . But whatever weight that excuse might
otherwise carry, it is sapped of significance by the indication given by Respondents
that it would have made no difference how, when , where, or to whom these persons
communicated their resignations . Every action and every response to them and
to Moore was premised on a rejection of their capacity to resign at all, no matter
what they did. Respondents' actions were, in effect , an anticipatory rejection of any
steps toward resignation above and beyond those taken by these persons at the
ratification meeting. The result was to render further action a futility and to deprive
Respondents of standing to challenge the sufficiency of the means used by them to
announce their resignations . So, while the action of Moore during the remainder
of the week establishes his timely resignation beyond peradventure of doubt, I find
that he had already effectively resigned at the end of the ratification meeting, along
with the other four in the group here considered."
4. The sections of the Act here transgressed
The demands for dues for which Respondent improperly sought to invoke the sanc-
tions of the maintenance-of-membership clause were an attempt to cause the Em-
ployer to discriminate against the employees , in violation of Section 8(a)(3). Re-
30 Williston on Contracts (1936 Williston & Thompson ed ), sec 698 A
u Nicholas Solimine, chief steward of Respondent Local, testified that he had a con-
versation with Torino before sending out the "delinquent dues" notice of April 1963, in
which Torino promised to pay up, as "soon as I catch up and get a little money ahead."
Torino's testimony , to be sure, was the least persuasive of his group Yet , putting his
testimony against that of Dyer , on the score of whether he handed back his card to Dyer
at the end of the ratification meeting, I credit his testimony that he did. For the reasons
stated in the text, I have concluded that in the given circumstances here considered, he
thereby effectively resigned from the Union. Torino , a witness for the General Counsel,
who testified well before Solimine , was not asked about this conversation on cross-
examination , so we have neither his version nor his explanation . But Solimine testified
he was "a pretty good friend " of Torino 's and when he mentioned that he would "send out
letters for the people who are delinquent," Torino said, "I hate like heck to get one of
them letters " Torino's statement is understandable in view of his apprehension over his
job He may have mistaken his rights , but in the light of all the particular circumstances
here considered , I would not deem it as impugning his testimony concerning his proffered
resignation at the end of the ratification meeting.
638 DECISIONS OF-NATIONAL LABOR RELATIONS -BOARD
spondents thereby violated Section, 8 (b) (2) of the Act. They were also a restraint
and coercion upon the employees in the exercise of` their rights under Section 7,
as were also the direct demands to them under threat of invoking these sanctions.
Respondents thereby also violated Section 8(b) (1) (A) of the Act.
The above applies to: (1) the demand for dues- for January 1963 made on the
50 employees named in the appendix to the complaint, and (2)-the demand for dues
for February 1963 and thereafter made on the 5 employees who resigned at the end
of the ratification meeting,12 and the 11 whose telegraphic resignations were received
by Respondents before the execution of the contract on•Febzuary 12.13 -
IV. THE REMEDY '
In essence, this case, unlike the common run of unfair labor practice proceeding,
is one for the declaration of the rights of the parties under the contract. Respondents'
future course hinges on the character of the adjudication of those rights. Accord-
ingly, the injunctive requirement and the notices will be limited to a definition of
those rights and a cease-and-desist requirement against going beyond them.14 -
Upon the foregoing findings and conclusions and the entire record, I, pursuant
to Section 10(c) of the Act, hereby issue the following:
RECOMMENDED ORDER
Respondents, Oil, Chemical and Atomic Workers International Union, AFL-CIO,
and its Local 8-718, their officers, agents, representatives, successors, and assigns,
shall:
1. Cease and desist from:
(a) Causing, attempting to cause, or threatening to cause or attempt to cause
the Employer, United Nuclear Corporation, Fuels Division, to discharge or other-
wise discriminate against any employee pursuant to the maintenance-of-membership
clause of the contract with said Employer in order to force payment of dues
for any month other than during the period embraced by said contract, or in order
to exact payment of dues for months within the term of the contract from any
employee who was not a member when the contract was executed on February 12,
1963, and who did not thereafter become a member during the term of the contract.
(b) In any like or related manner restraining or coercing employees in the exer-
cise of their rights under Section 7 of the Act.
2. Take the following affirmative action, which it is hereby found will effectuate
the policies of the Act: -
(a) Rescind the demand upon the various employees for the payment of dues for
January 1963 as a condition of employment and upon the said Employer to require
payment of the dues for said month as a condition of employment.
(b) Rescind the demand for payment, as a condition of employment, of dues
for months within the period of said contract, on the part of the following employees,
who have been found to have resigned before the maintenance-of-membership pro-
visions became operative as to them, namely: -
Robert Moore Frank Cocco Salvatore Iovieno
Richard Petron Michael Laccone Frank Cusano
Francis Torino David Zotti Nicholas Candido
Pasquale Luciano Vincent Ponzo Lawrence Fusco
Nicholas Pergamelis Andrew Candelora Frank Ferrucci
Robert V. Mingione
(c) Post in conspicuous places at their office and meeting place in New Haven,
Connecticut (or its outlying vicinity), copies of the attached notice marked "Ap-
pendix." 15 Copies of said notice, to be furnished by the Regional Director, Re-
32 Robert Moore, Richard Petron, Francis Torino, Pasquale Luciano, and Nicholas
Pergamelis
13 Robert V. Minglone, Frank Cocco. Michael Laccone, David Zotti, Vincent Ponzo,
Andrew 'Candelora, Salvatore Jovino, Frank Cusano, Nicholas Candido, Lawrence Fusco,
Frank Ferrucci.
14 The formal conclusions of law will be dispensed with, since they will not add to what
appears in paragraph 4 of the preceding section.
is Should the Board adopt this Recommended Order, then, in place of "the Recom-
mended Order of a Trial Examiner," the words used shall be "a Decision and Order "
Should the latter In turn be enforced by a court decree, the words used shall be "a Decree
of the United States Court of Appeals, Enforcing an Order."
OIL, CHEMICAL AND ATOMIC WORKERS INT'L UNION 639
gion 1, after being duly signed by official representatives of Respondents, shall be
posted by them immediately upon receipt thereof, and maintained by them for 60
consecutive days thereafter in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken by Respond-
ents to insure that the notices are not altered, defaced, or covered by any other
material.
(d) Mail or deliver to the Regional Director, Region 1, copies of said appendix,
for posting by United Nuclear Corporation, Fuels Division, if willing, at its plant
in New Haven, Connecticut, at all places where notices to the Company's employees
are customarily posted.
(e) Notify said Regional Director, in writing, within 20 days from the date of
this Recommended Order, what steps Respondents have taken to comply herewith.1e
"If the Board should adopt this Recommended Order, the provision shall be modified
to read "Notify said Regional Director, in writing, within 10 days from the date of the
Order, what steps Respondents have taken to comply herewith."
APPENDIX
To ALL EMPLOYEES OF UNITED NUCLEAR CORPORATION, FUELS DIVISION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to carry out the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT cause or attempt to cause United Nuclear Corporation, Fuels
Division to discharge or otherwise discriminate against any employee pursuant
to the maintenance-of-membership clause of our contract with said company,
in order to enforce payment of dues for any month other than during the period
embraced by that contract, or in order to exact payment of dues from any em-
ployee who was not a member of our Union at the time our contract with said
company was executed on February 12, 1963, and who did not thereafter be-
come a member during the term of that contract.
WE HEREBY rescind the demand made upon various employees for payment
of the dues for January 1963, as a condition of employment, and our demand
on the company to require payment of dues for said month as a condition of
employment.
WE HEREBY rescind the demand for payment, as a condition of employment,
of dues for months within the term of said contract on the part of the following
employees who have been found to have resigned before the maintenance-of-
membership provision became operative as to them, namely:
Robert Moore Frank Cocco Salvatore lovieno
Richard Petron Michael Laccone Frank Cusano
Francis Torino David Zotti Lawrence Fusco
Pasquale Luciano Vincent Ponzo Nicholas Candido
Nicholas Pergamelis Andrew Candelora Frank Ferrucci
Robert V. Mingione
OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
OIL, CHEMICAL AND ATOMIC WORKERS INTER-
NATIONAL UNION, LOCAL 8-718, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
Any employees having a question concerning the above notice or what it re-
quires may communicate by mail, telephone, or in person with the Board's Regional
Office, 24 School Street, Boston, Massachusetts 02108, Telephone No. 523-8100.