Pantlind Hotel Co.

National Labor Relations Board - Board Decisions

May 2, 1969

175 N.L.R.B. 815 (N.L.R.B. 1969)

PANTLIND HOTEL COMPANY
Pantlind Hotel ' Comnanv and James E. Carpenter
Bartenders , Hotel and Cafeteria- Employees Local
395, Hotel & Restaurant Employees and
Bartenders International Union , AFL-CIO, and
Hotel & Restaurant Employees and Bartenders
International Union , AFL-CIO and Pantlind Hotel
Company . Cases 7-CA-6417 and 7-CB-1715
May 2, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On June 19, 1968, Trial Examiner Paul Bisgyer
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and
were engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that they cease
and desist therefrom add take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondents had not engaged in certain other unfair
labor practices, and recommended that such
allegations of the complaint be dismissed.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief, and the Respondents filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner' s Decision , the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner, only to the extent consistent
herewith.
1. The Trial Examiner found, inter alia, that the
Respondents did not violate Section 8(a)(2) or (3) or
8(b)(2) by maintaining in existence the unlawful
union-security provisions. He reasoned that, because
the provisions were not enforced as written, no
discriminatory conditions of employment were
actually created. We do not agree, for it is settled
that the continued maintenance of such unlawful
provisions, whether or not enforced as written,
violates Sections 8(a)(1),'(2), and (3), and 8(b)(1)(A)
and (2).'
It is true that here the contracting parties did not
impose union -security requirements in a manner
which conformed to the literal terms of the illegal
provisions. Thus, no employee was compelled to join
the Union, or pay dues, before 30 days following his
'See, e .g., I. Oscherwitz and Sons , 130 NLRB 1078, 1079.
815
hire had elapsed. These facts, however, do not
justify the Trial Examiner's conclusion. For there is
no evidence - nor is a claim asserted - that this
deviation from the writing resulted from any
modifying agreement between the parties. Rather, it
appears that the Respondent Employer unilaterally
followed a practice which did not accord with an
unambiguous writing, although it was purportedly
pursuant to that writing. While the Union did not
protest the practice, that itself does not constitute an
agreement to amend.' Accordingly, we do not reach
the questions of the effect of an agreement not to
enforce an unlawful clause, or whether the
employees had full and unmistakable notice of the
terms of a union-security agreement whose
provisions were not reduced to writing.'
2. As to Carpenter's discharge for failing to sign a
union membership application card, the Trial
Examiner found no violation of Section 8(a)(3) or
8(b)(2) because "union membership was a lawful
condition of employment" and, as Carpenter had
been in the Company's employ for more than 30
days at the time of his discharge," "he was obliged
to join the union " We disagree with this
conclusion also. It is axiomatic that a contract
which contains an unlawful union-security provision
may not serve as a defense to a discharge! As the
contractual clause here clearly did not comply with
Section 8(a)(3) of the Act, Carpenter's discharge
could not be predicated on that clause, and his
termination for refusing to sign a union membership
application card violated Section 8(b)(2) and 8(a)(3)
of the Act.
3. Having concluded that Carpenter's discharge
violated the Act, we shall order (in addition to the
remedy ordered by the Trial Examiner) that the
Respondent Employer and Respondent Unions
jointly and severally make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him, by payment to him of a
sum of money equal to that which he normally
would have earned as wages from the date of such
unlawful discharge to the date of his return to work
pursuant to a valid offer of reinstatement,' with
interest thereon, less his net earnings , if any, during
such period. The backpay and interest shall be
computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716. We shall
also order the Respondent Unions to write the
'Cf Port Chester Electrical Construction Corporation , 97 NLRB 354;
Monolith Portland Cement Company, 94 NLRB 1358
'Cf. Pacific Iron and Metal Company , 175 NLRB No. 114; Jersey
Contracting Corporation , 112 NLRB 660, 662.
'No exception was taken to the Trial Examiner's finding that Carpenter
had been employed more than 30 days. We therefore adopt this finding pro
forma
'Hribar Trucking, Inc , 143 NLRB 327, enforcement denied on other
grounds , 337 F.2d 414 (C.A. 7).
`The Trial Examiner found that the Respondent Employer offered
reinstatement to Carpenter on December 7, 1967 , and that he returned to
work on December 18. However, it does not appear whether or not the
175 NLRB No. 125
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Employer, with a copy to Carpenter,
that they have no objection to Carpenter's
reinstatement or his employment in the future,
whichever is appropriate (see fn. 6). Because
Carpenter never authorized the deduction of dues or
fees, we shall further order that the Respondents
jointly and severally reimburse him for all dues and
fees the Employer checked off and deducted from
his wages on behalf of, and paid to, the Union since
May 1, 1967 (the beginning of the 6-month
limitation period), together with interest thereon at
the rate of 6 percent per annum, to be computed in
the manner set forth in Isis Plumbing, supra.
We shall not, however, order dues reimbursement
to other employees, as the General Counsel requests
in his exceptions, because it has not been shown that
any other employees joined the Union under
coercion rather than of their own volition. Nor do
we find merit in the General Counsel's contention
that the Employer should be ordered to cease
recognizing the Union until it is certified, since the
validity of the Employer's grant of recognition to
the Union is not in issue; it had been certified as
representative of the Maintenance Department
employees by the Michigan Labor Mediation Board
in 1966; no other labor organization is involved
herein; and, as noted above, there is no evidence of
coercion of any employee other than Carpenter.
However, as the Trial Examiner recommended, we
shall order that the parties cease maintaining the
unlawful clauses.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that:
A. The Respondent , Pantlind Hotel Company,
Grand Rapids, Michigan , its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Including , maintaining , or continuing in its
collective-bargaining contract with the Respondents,
Bartenders , Hotel and Cafeteria Employees Local
395, Hotel & Restaurant Employees and Bartenders
International Union, AFL-CIO, and Hotel &
Restaurant Employees and Bartenders International
Union, AFL-CIO, or with any other labor
organization, any clauses which provide for
preferential hiring of members of such union, or
require , as a condition of employment, that new
employees at the time of hiring fill out membership
applications , or agree to become members therein,
or which otherwise require membership in the labor
organization as a condition of employment , except
as authorized by Section 8(a)(3) of the Act.
offer of reinstatement which Carpenter accepted was to his former or
substantially equivalent position , or whether it was without prejudice to his
seniority and other rights and privileges We accordingly leave these
matters to the compliance stage of these proceedings , and include our
normal reinstatement order herein (Mid Valley Inc . 172 NLRB No 155 )
(b) Discriminating against employees in regard to
their hire or tenure of employment, or any term or
condition of employment, except to the extent
permitted by Section 8(a)(3) of the Act.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Delete from its current collective-bargaining
contract with the above-named Unions the unlawful
clauses mentioned in paragraph A, 1, (a) of this
Order, which are included or contained in that
contract.
(b) Jointly and severally with the Respondent
Unions reimburse James Carpenter for all dues and
fees which were withheld after May 1, 1967, from
his pay on behalf of Bartenders, Hotel and Cafeteria
Employees Local 395, Hotel & Restaurant
Employees and Bartenders International Union,
AFL-CIO, and Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, in the
manner set forth above in this Decision.
(c) Offer immediate and full reinstatement to
James Carpenter to his former or substantially
equivalent position, without prejudice to his
seniority and other rights and privileges.
(d) Jointly and severally with the Respondent
Unions make James Carpenter whole for any loss of
pay he may have suffered as a result of his
discharge, in the manner set forth above in this
Decision.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security
payments records, timecards, personnel records and
reports, and all other records necessary to analyze
the amount of backpay due and the rights of
employment under the terms of this Order.
(f) Post at its hotel in Grand Rapids, Michigan,
copies of the attached notice marked "Appendix
A."' Copies of said notice, on forms provided by the
Regional Director for Region 7, shall, after being
duly signed by the Respondent Company's
representative, be posted by the Respondent
Company immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Post at the same places and under the same
conditions as set forth in paragraph (f) above, and
as soon as they are forwarded by the Regional
Director, copies of the Respondent Unions' attached
notice marked "Appendix B."
'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 "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
PANTLIND HOTEL COMPANY
(h) Mail to the Regional Director for Region 7,
signed copies of "Appendix A" for posting by the
Respondent Unions at Local 395's offices. Copies of
said notice, on forms provided by the Regional
Director, shall, after being duly signed by a
representative of the Respondent Company, be
forthwith returned to the Regional Director for such
posting.
(i) Notify the Regional Director for Region 7, in
writing, within 10 days from the date of this
Decision and Order, as to what steps the
Respondent Company has taken to comply
herewith.
B. The Respondents, Bartenders, Hotel and
Cafeteria Employees Local 395, Hotel & Restaurant
Employees and Bartenders International Union,
AFL-CIO, and Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, Grand
Rapids, Michigan, their officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Including, maintaining, or continuing in their
collective-bargaining contract with the Pantlind
Hotel Company, any clauses which provide for
preferential hiring of members of the Respondent
Unions, or require, as a condition of employment,
that new employees at the time of hiring fill out
membership applications, or agree to become
members therein, or which otherwise require
membership in the above labor organizations as a
condition of employment, except as authorized by
Section 8(a)(3) of the Act.
(b) Causing or attempting to cause the Pantlind
Hotel Company to discriminate against employees
in regard to their hire or tenure of employment, or
any term or condition of employment, except to the
extent permitted by Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or
coercing employees of the Respondent Pantlind
Hotel Company in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Delete from their current collective-bargaining
contract with the Pantlind Hotel Company any of
the unlawful clauses mentioned in paragraph B, 1,
(a) of this Order which are included or continued in
that contract.
(b) Jointly and severally with the Respondent
Company reimburse James Carpenter for all dues
and fees which were withheld from his pay by said
Employer after May 1, 1967, in the manner set
forth above in this Decision.
(c) Notify the Respondent Company, in writing,
with a copy to James Carpenter, that the
Respondent Unions have no objection to his
reinstatement or, if the Company has already
satisfied its reinstatement obligation, that the
Respondent Unions have, no objection to his
employment by the Company in the future.
817
(d) Jointly and severally with the Respondent
Company make James Carpenter whole for any loss
of pay he may have suffered as a result of his
discharge, in the manner set forth above in this
Decision.
(e) Post at the offices of Local 395 copies of the
attached notice marked "Appendix B."8 Copies of
said notice, on forms provided by the Regional
Director for Region 7, shall, after being duly signed
by the Respondent Unions' representatives, be
posted by the Respondent Unions immediately upon
receipt thereof, and be 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 the Respondent Unions to insure that said
notices are not altered, defaced, or covered by any
other material.
(f) Post at the same places and under the same
conditions as set forth in paragraph (e) above, and
as soon as they are forwarded by the Regional
Director, copies of the Respondent Company's
attached notice marked as "Appendix A."
(g) Mail to the Regional Director for Region 7
signed copies of "Appendix B" for posting by the
Respondent Company at its hotel. Copies of said
notice, on forms provided by the Regional Director,
shall, after being duly signed by the Respondent
Unions' representatives, be forthwith returned to the
Regional Director for such posting.
(h) Notify the Regional Director for Region 7, in
writing, within 10 days from the date of this
Decision and Order, as to what steps the
Respondent Unions have taken to comply herewith.
'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 "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX A
NOTICE TO ALL EMPLOYEES
THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL
LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board found that
we, Pantlind Hotel Company, violated the National Labor
Relations Act, and ordered us to post this Notice.
The National Labor Relations Act gives all employees
the right to get or keep a job even if they are not
members of a union, except under certain conditions.
Unless these conditions are met, the requirement to join a
union in order to keep a job is illegal. The specific
conditions which make that requirement lawful include:
(1) The requirement to join the union must be pursuant
to a lawful collective-bargaining contract.
818
(2) The contract must give the employees at least 30
days' after they are hired, before they can be required
to join the union.
The Act also protects an employee from being fired for
not joining a union, if the requirement to join does not
meet the above conditions.
The National Labor Relations Board found that we
violated your legal rights under the above-described
provisions of the National Labor Relations Act.
Specifically, the Board found that we maintained a
contract which did not meet the above requirements of the
law; and that we discharged an employee pursuant to that
illegal contract.
Accordingly, we give you the following assurances:
1. AS '10 YOUR RIGHTS AS EMPLOYEES
WE WILL NOT maintain a collective-bargaining
contract whose provisions
require you to join a union to get a job here;
permit us to employ nonmembers of the union only if
they are eligible for union membership;
permit us to employ nonmembers of the union only if
they agree at the time of hiring to become union
members within 30 days;
require new employees to fill out applications for
membership in the union before 30 days following
their hire have elapsed; or
unlawfully discriminate against employees as to their
hire or tenure of employment, or any term or
condition of employment.
WE WILL delete from our current
collective-bargaining contract all provisions containing
the illegal requirements mentioned above.
II. AS TO THE EMPLOYEE WE FIRED
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS AND EMPLOYERS OF PANTLIND
HOTEL COMPANY
THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL
LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board found that
we violated the National Labor Relations Act, and
ordered us to post this Notice.
The National Labor Relations Act gives all employees
the right to get or keep a job even if they are not
members of a union, except under certain conditions.
Unless these conditions are met, the requirement to join a
union in order to keep a job, is illegal . The specific
conditions which make that requirement lawful include:
(1) The requirement to join the union must be pursuant
to a lawful collective-bargaining contract.
(2) The contract involved must give the employees at
least 30 days' after they are hired, before they can be
required to join the union.
The Act also protects an Employee from a union's
causing , or attempting to cause his being fired for not
joining the union - if the requirement to join does not
meet the above conditions.
The National Labor Relations Board found that we
violated your legal rights under the above-described
provisions of the National Labor Relations Act.
Specifically, the Board found that we maintained a
contract which did not meet the above requirements of the
law; and that we caused the discharge of an employee
pursuant to that illegal contract.
Accordingly, we give you the following assurances:
WE WILL, together with your union , reimburse
James Carpenter for all dues and fees which we
withheld after May 1, 1967, from his pay on behalf of
your union.
WE WILL ALSO pay him 6 percent interest on that
amount.
WE WILL, if we have not already done so, offer to
give back James Carpenter his job , with full seniority
and all other rights and privileges.
WE WILL also , together with your union , make up
any pay he lost, with 6 percent interest.
Dated
PANTLIND HOTEL
COMPANY
(Employer)
By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board's Regional Office, 500 Book Building, 1249
Washington Boulevard, Detroit, Michigan 48226,
Telephone 313-226-3200.
'Employees who work in the building and construction industry have
only 7 days to join
1. AS TO YOUR RIGHTS AS EMPLOYEES:
WE WILL NOT maintain a collective-bargaining contract
whose provisions
require you to join our union to get a job here;
prohibit Pantlind Hotel Company from employing
non-members of our union unless they are eligible for
union membership;
prohibit Pantlind Hotel Company from employing
non-members of our union unless they agree at the time
of hiring to become union members within 30 days;
require new employees to fill out applications for
membership in our union before 30 days following their
hire have elapsed; or
unlawfully discriminate against employees as to their
hire or tenure of employment, or any term or condition
of employment.
WE WILL delete from our current collective-bargaining
contract all provisions containing the illegal provisions
mentioned above.
'Employees who work in the building and construction industry have
only 7 days to join
PANTLIND HOTEL COMPANY 819
II. AS TO THE EMPLOYEE WE CAUSED TO BE FIRED:
WE WILL, together with Pantlind Hotel Company,
reimburse James Carpenter for all dues and fees which
were deducted from his pay after May 1, 1967.
WE WILL also pay him 6 percent interest.
WE WILL notify Pantlind Hotel Company , in writing,
that we have no objection to their giving him back his
job. WE WILL ALSO send a copy of this letter to James
Carpenter.
WE WILL, together with Pantlind Hotel Company,
make up any pay he lost, with 6 percent interest.
BARTENDERS , HOTEL AND
CAFETERIA EMPLOYEES
LOCAL 395, HOTEL &
RESTAURANT EMPLOYEES
AND -BARTENDERS
INTERNATIONAL UNION,
AFL-CIO .
(Labor Organization)
Dated By
Dated By
(Representative) (Title)
HOTEL & RESTAURANT
EMPLOYEES AND
BARTENDERS
INTERNATIONAL UNION,
AFL-CIO
(Labor Organization)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board's Regional Office, 500 Book Building, 1249
Washington Boulevard , Detroit, Michigan 48226,
Telephone 313-226-3200.
TRIAL EXAMINER 'S DECISION
PAUL BISGYER , Trial Examiner: This proceeding, with
all parties represented , was heard on April 9 and 10, 1968,
in Grand Rapids , Michigan , on the consolidated amended
complaint of the General Counsel issued March 1 , 1968,'
and the separate amended answers of Pantlind Hotel
Company , herein called the Respondent Company or
Company, and Bartenders , Hotel and Cafeteria
Employees Local 395 , Hotel & Restaurant Employees and
Bartenders International Union , AFL-CIO, and Hotel &
Restaurant Employees and Bartenders International
Union , AFL-CIO , herein collectively called the
Respondent Union or Union . In brief, the questions
presented for decision are twofold - one, whether the
Respondent Company , in violation of Section 8(a)(1), (2),
and (3) of the National Labor Relations Act, as amended,
and the Respondent Union, in violation of Section
8(b)(1)(A) and (2) of the Act,' maintained and enforced a
collective-bargaining agreement containing unlawful union
security and checkoff provisions and, two , whether, in
violation of the same sections of the Act , the Company,
with the Union ' s approval and ratification , discharged
employee James E . Carpenter because of his refusal to
join the Union , authorize the Union to represent him in
collective bargaining and authorize the Company to
deduct his membership dues and assessments for
remittance to the Union . At the conclusion of the hearing,
the parties were afforded an opportunity to argue their
positions orally . Thereafter , the General Counsel and the
Respondents filed briefs.
Upon the entire record , and from my observation of the
demeanor of the witnesses , and with careful consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT COMPANY
The Company , a Michigan corporation , operates a
hotel and restaurants and taverns therein located, in
Grand Rapids , Michigan . Over 70 percent of the lodgers
served by the Company stay at the hotel for less than a
month . During 1967 , a representative period, the
Company in the course and conduct of its business
received gross revenues in excess of $500 ,000. During that
period , it purchased goods and materials in excess of
$50,000 from sources outside the State.
'The charge in Case 7-CA-6417 was filed on November 1, 1967, and a
copy was served on the Respondent Company by registered mail the next
day An amended charge in that case was filed the following December 6
and a copy was similarly served on the Company on or about December 8.
In Case 7-CB-1715, the charge was filed on February 27, 1968, and a copy
was served on the Respondent Union by registered mail the same day
'Insofar as relevant, Sec. 8(a) makes it an unfair labor practice for an
employer
(1) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7,
(2) to dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it . ,
(3) 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 any other statute of the United States, shall preclude an
employer from making an agreement with a labor organization (not
established, maintained, or assisted by any action defined in section 8(a)
of this Act as an unfair labor practice) 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 the later, (i) if such labor organization is the
representative of the employees as provided in section 9(a), in the
appropriate collective-bargaining unit covered by such agreement when
made, . . Provided further, That no employer shall justify any
discrimination against an employee for nonmembership in a labor
organization (A) if he has reasonable grounds for believing that such
membership was not available to the employee on the same terms and
conditions generally applicable to other members or (B) if he has
reasonable grounds for believing that membership was denied or
terminated for reasons other than the failure of the employee to tender
the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership
Correspondingly, Sec. 8(b), in relevant part, makes it an unfair labor
practice for a labor organization or its agents -
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7 .. ;
(2) to cause or attempt to cause an employer to discriminate against an
employee in violation of subsection (a)(3) or to discriminate against an
employee with respect to whom membership in such organization has
been denied or terminated on some ground other than his failure to
tender periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership ...
Sec 7 provides, among other things, that Employees shall have the right to
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, . . and . . to refrain from any or
all such 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).
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find, in agreement with the parties, that the Company
is engaged in commerce within the meaning of Section
`-2(6) and (7) of the Act. I further find that effectuation of
the policies of the Act warrants the assertion of
jurisdiction by the Board.
II. THE LABOR ORGANIZATIONS INVOLVED
It is conceded that the Respondent Local 395 and its
International are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Contractual relations; union-security and checkoff
provisions and practice thereunder
Since at least 1947 the Union has been the exclusive
representative of certain of the Company's hotel,
restaurant and tavern employees pursuant to successive
collective-bargaining agreements. The last contract was
executed on June 1, 1965, for a term expiring June 1,
1968, with provision for automatic renewal and reopening,
and contains the following union-security and checkoff
provisions whose legality is challenged in this proceeding:
ARTICLE I
RECOGNITION AND SCOPE OF COVERAGE
Section 2 . The Company agrees that any and all
employees , within the classifications of work set forth in
said Wage Schedule shall be members in good standing
in the Union as a condition of continued employment.
Only members of the Union or men (the term "men"
wherever used in this agreement includes women)
eligible for membership shall be hired . The Company
shall call the Union for additional men when additional
employees are required provided , however, that if the
Union does not have men suitable to the Company
available, a non-member may be hired, provided that
said non-member shall at the time of his employment
agree to become a member in good standing in said
Union within thirty (30) days after being employed.
Any person newly hired shall be so employed on a
thirty-day trial basis , during which time he may be
discharged by the Company , without further recourse.
At the time of hiring, the Company shall have all new
employees fill out an application for membership in
Local 395 and send all such cards to the office of the
Union Local 395 with the next billing.
* * * * *
ARTICLE II
Section 1. The Employer agrees to deduct initiation fees
from wages of new employees (when eligible for
membership), and dues from the wages of the
employees who are members of the Union , by the 25th
day of each month , and forward to the Union Office a
check to cover the total amount so deducted , together
with the Union applications filled out at the time of
hiring . The Company shall also add the names of all
re-hires and employees returning from leaves of absence
to the check-off list.
Section 2. The Union agrees to furnish the Employer
with check-off authorizations to conform with the State
Law.
The union-security provisions are substantially the same
as those contained in prior contracts since 1947, while the
checkoff clauses were first included in the 1959 contract in
substantially the same form.'
On July 11, 1966, the Union, having won a
representation election conducted by the Michigan Labor
Mediation Board, was certified as the bargaining
representative of the Company's Maintenance Department
employees, who were previously excluded from the
Respondent's contract. Thereafter, following negotiations,
the parties on September 19, 1966, executed an addendum
to contract whereby these maintenance employees came
under, and were subject to, the terms of that agreement.
The addendum, which was ratified by these employees,
also fixed their wage scales and future wage increases.
Whatever the conditions of employment the union
security and checkoff clauses were originally designed to
impose, the uncontradicted evidence establishes that, in
practice, they were not literally followed, as the amended
complaint alleges they were. Thus, since 1967,° at least,
the Company has not called upon the Union to supply its
personnel needs, which were great, indeed, because of
unusual labor turnover. It appears that during this period
the Company hired some 1,200 employees to fill jobs in
the bargaining unit normally consisting of about 260 or
270 employees. Of the 1,200 new hires, the Union referred
only about 12 applicants to the Company for interviews
after first ascertaining from the Company that there were
openings. Approximately six of these applicants were
hired. Significantly, there is absolutely no evidence that
preference in employment was accorded union members or
those "eligible for memberships' or that the Company
even considered Union, or eligibility for, membership as a
qualification for being hired. Nor is there the slightest
suggestion in the record that the Union ever protested to
the Company that it was not honoring its written
contractual commitments.
Except for the Charging Party Carpenter, whose case
will be separately treated below, the record is similarly
barren of evidence that any employee was required, as a
condition of securing or retaining employment, to join or
agree to join the Union before the expiration of 30 days
following his hiring. While several department heads, who
hired their own help, at times furnished new employees
with union membership application cards containing
authorization for the checkoff of dues and assessments
from their pay' when employment forms were filled out,
no testimony or other evidence was produced that any
employee was forced, coerced or otherwise required to
sign these cards within the 30-day statutory grace period.
On the contrary, according to the only witness to such
distribution, John DeVries, the Company's chief engineer,
when he handed a union card to a new employee, he
usually informed the employee that under the terms of the
'It is noted that it was not until July 30, 1959, that the Board, in the
exercise of its discretion , decided to assert jurisdiction over hotels under
specified conditions Floridan Hotel of Tampa, Inc., 124 NLRB 261.
The amended complaint alleges violations only during the period
commencing May 1, 1967. This is in accordance with Sec . 10(b) of the Act
which provides that "no complaint shall issue based upon any unfair labor
practice occurring more than 6 months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person against
whom such charge is made . .
'No explanation , testimonial or documentary, was furnished by any
party as to the meaning of the phrase "eligible for membership."
'Apparently, because of the checkoff feature, the union cards are filled
PANTLIND HOTEL COMPANY 821
bargaining agreement he was obliged to become a union
member after 30 days of employment and was subject to
discharge if he did not .' Although there is evidence that
union cards of several employees have the same date as
their hire, it is quite clear that the initial dues and
initiation fees of new employees were never deducted and
remitted to the Union until more than 30 days had
elapsed since their employment . In fact, it appears that
the Union , on occasions , protested the Company's long
delays beyond the 30 days in making these deductions for
the new employees . Moreover , except with respect to the
Charging Party Carpenter, there is no substantiation in
the record for the allegation of the complaint that
deductions for some employees were made without
authorization. Conversely, no- evidence was presented that
any employee was denied the right to pay his dues or
initiation fees in any other manner.
2. Carpenter' s employment history ; his termination
Carpenter was first employed by the Company on
February 22, 1966, as'a cleanup man in the maintenance
department under the supervision of Chief Engineer
DeVries. He left his job 6 days later , returning on June 1,
1966. He remained in -the Company 's employ until August
1, 1967, but resumed employment on August 11. He again
left his job the - following October 2. Thereafter, on
November 3, Carpenter was reinstated , being subsequently
terminated under circumstances related below and alleged
to constitute unlawful discrimination.
As shown above , the maintenance department
employees came under the Respondents ' then current
collective-bargaining agreement on September 19, 1966,
when these employees ratified the addendum to contract.
Thereafter, the Company , in accordance with the practice
prevailing with respect to the previously covered
employees , began deducting the dues ' of the maintenance
employees whose names appeared on the monthly
checkoff list' the Union systematically furnished the
Company. Although it is conceded that Carpenter never
signed a union membership application card with its
checkoff authorization, his dues were nevertheless
regularly deducted from his wages .' The Respondents
profess a complete unawareness that Carpenter had not
executed a union card and at no time did Carpenter call
the Company's or the Union's attention to the fact that
the deductions were unauthorized or that he did not
belong to the Union . Indeed , when the deduction first
appeared on his October 1966, paycheck stub , Carpenter
merely asked Union Steward Wieringa to explain it.
Wieringa thereupon advised him that the dues were
automatically checked off pursuant to the contract and
Carpenter "dropped" the matter . When the dues
deduction next appeared on his paycheck stub, he
questioned Chief Engineer DeVries about it. At DeVries'
instance, Building Superintendept Hoort explained to
out in two parts, one for the Union 's records and the other for the
Company's. After completing the cards , employees customarily submit
them to the Company, union stewards or directly to the Union itself. The
Union has no formalized procedures for initiating employees into
membership . Actually, an employee , becomes a member upon the
submission of a signed membershipiapplication card and the receipt of the
requisite dues and fees.
'It is noted that the union security, section of the bargaining agreement
provides for a 30-day trial period- for newly hired employees during which
time the Company has the absolute -right to discharge . This manifestly
coincides with the 30-day grace period for joining the Union.
Carpenter that this was a "union job" and under the
contract, monthly dues were automatically checked off.
On neither these nor subsequent occasions did Carpenter
complain to the Union or management that the deductions
were made without written authorization, or request that
they be discontinued, or offer to pay his dues in another
way. In fact, although he had spoken to Business
Representative Smith at the union office five or six times,
only once, and that was in June 1967," did Carpenter
mention that the deduction was improper, stating as the
reason his belief that the contract was not being enforced
in that his hourly wage rate had not been raised on June 1
from $1.25 to $1.40, as the contract provided."
On October 2, Carpenter took leave from his job,
telling his supervisor, DeVries, that he would return in a
few days. Not hearing from Carpenter for 2 weeks,
DeVries removed Carpenter's timecard and he was taken
off the payroll . In the meantime , on October 5, Carpenter
visited the union office and informed Smith that he would
not return to his job unless he received the contract rate
of $1.40 an hour. With Smith's assistance, Carpenter
prepared and filed a grievance against the Company,
claiming that under the contract he was entitled to $1.40
an hour retroactive to June 1. Thereafter, Smith
succeeded in settling this grievance with the Company's
president, Jack Roberts, but could not reach Carpenter at
the telephone number or address Carpenter had given in
order to apprise him of the settlement and to arrange for
his return to work.
On November 3, a Friday, Carpenter appeared at the
union office, and was informed by Smith of his inability
to locate him and that, had Carpenter kept the Union
posted of his latest address, he could have been back at
work 2 or 3 weeks ago at the $1.40 rate. Smith then
communicated with DeVries and arranged for Carpenter's
reinstatement.
Later in the afternoon Carpenter arrived at the hotel
and spoke to DeVries about returning to work. DeVries
consented and prepared the employment form the
Company customarily used both for reinstatements and
new hires. Although DeVries was unable to recall in his
testimony whether Carpenter had informed him on this or
a prior occasion that he had initiated an investigation by
the Board's Washington Office which involved the Union, ':
he did admonish Carpenter on this afternoon that he
would have to stop "bickering" or causing "trouble" on
the job. At Carpenter's request, DeVries agreed that he
could begin working on the following Tuesday, November
7. Because of his latest absence, Carpenter lost his
seniority but was reinstated at a higher wage rate than
that customarily paid new employees.
At noontime on November 7, Carpenter reported for
work. After having lunch in the employees' dining room,
to which he was entitled as an employee, and while he was
about to proceed with his assignment, DeVries handed
'The Union waived the payment of initiation fees.
'There is no evidence that the other employees on the checkoff list had
not executed written authorizations.
"Unless otherwise indicated, all dates hereinafter mentioned refer to
1967.
"It appears that subsequent to this conversation Carpenter's wage rate
was increased to $1.31.
"DeVries testified that he was unaware that Carpenter had filed an
unfair labor practice charge against the Company. Such a charge, on
which Case 7-CA-6417 herein is based , was filed on November 1, 1967,
alleging that the Company, in violation of Section 8(aXI) and (3) of the
Act, had unlawfully deducted union dues and remitted them to the Union
without authorization.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenter a union card with the statement that he had
"better sign this before - [he started] to work and stop
anymore of this bickering."" DeVries had secured this
card from Union Steward Wieringa, advising him that he
wanted it for Carpenter because he was creating a "lot of
problems with this union matter."" According to DeVries,
he surmised from previous remarks made by Carpenter
that he did not belong to the Union and that he therefore
thought that it was necessary for Carpenter to sign a
union card if a peacefully operated department were to be
maintained. Carpenter, however, declined to sign the card
for the asserted reasons, among others, that it would
"spoil his whole case" against the Union and that the
contract was not being enforced with respect to wage
rates." On this note, Carpenter's employment with the
Company ceased.
A few days later, in the course of a conversation with
DeVries , Business Representative Smith first learned of
Carpenter' s dismissal because of his refusal to sign a
union card. Smith concurred in the correctness of this
action in view of the fact that Carpenter had been in the
Company's employ for at least a year and the
Respondents' contract required union membership after 30
days of employment.
On December 7, the Company's President Roberts, in
the presence of the attorney for the General Counsel,
telephoned Carpenter and requested Carpenter to return
to work at $1.40 an hour. This offer was confirmed by
letter mailed the same day. On December 18, Carpenter
resumed employment.
B. Concluding Findings
1. With respect to the union-security provisions and
their enforcement
It is the General Counsel's position that the
Respondents maintained in full force and effect
contractual union -security provisions , quoted above, which
exceeded permissible statutory limits and that the
Company thereby violated Section 8(a)(3), (2), and (1) of
the Act and the Union violated Section 8 (b)(2) and (1)(A).
In addition , the General Counsel argues that the
Respondents further violated these sections of the Act by
enforcing the illegal union -security provisions and, in
particular , by requiring new employees , as part of the
hiring process , to join the Union and sign membership
application cards which also contained an authorization to
check off union dues and fees for remittance to the Union.
The Respondents do not seriously dispute the illegality of
various aspects of the union-security provisions , if taken
literally," although the Company urges that these clauses
are sufficiently ambiguous to warrant resort to their
actual application to ascertain their intended meaning
which , it urges , would establish their validity. In any
event , the Respondents contend that no violation could be
found because the union -security provisions were enforced
"The evidence shows that Carpenter's dues were paid up through
October Under Union riles he was automatically suspended in January
1968, for being 60 days in arrears
"DeVnes testified that he did not recall whether Wieringa told him to
have Carpenter sign the card . Wiennga was not called as a witness.
"The November 3 and 7 episodes are based on DeVnes ' candid and
persuasive testimony which appeared to me to be more accurate than
Carpenter 's. The latter's testimony , although at times confusing, does not,
however , differ in significant respects from DeVries ' version , except that
Carpenter described his reinstatement and termination as occurring on
November 3.
in a lawful manner to require union membership as a
condition of employment 30 days after the individual was
hired.
While there can be little doubt that the union-security
provisions in question are not models of clarity or
draftsmanship, they do impose, on their face, conditions
of employment not sanctioned by the Act. Specifically, the
contract provides that only members of the Union and
those "eligible for membership" shall be hired; that new
employees must be recruited through the Union except
that "a non-member" may be hired by the Company if
the Union does not have suitable employees available;
that, in the latter event, the "non-member shall at the
time of his employment agree to become a member in
good standing in said Union within thirty (30) days after
being employed";" and that the Company at the time of
hiring shall have all new employees fill out an application
for membership in the Union."
The Board has held that it is a violation of Section
8(a)(1) for an employer, and of 8(b)(1)(A) for a labor
organization, to retain in their collective-bargaining
agreement an unlawful union -security clause , even though
they do not intend to, nor did in fact, enforce it." The
reason for this , as the Board has observed,20 is that "an
unlawful provision serves no less as a restraint on
employees' right to refrain from joining an organization
than if the parties intend to enforce it where, as here,
there is no evidence that the employees were informed
that the . [unlawful union-security] clause, which
theretofore had been in effect, would no longer be
operative." Applying this principle to the instant case, I
find that, by retaining in their contract the patently
unlawful union-security provisions, the Respondents
violated Section 8(a)(1) and 8(b)(1)(A) of the Act,
respectively. Since the violation is based on the retention
of the invalid clauses in the contract within the 6-month
statutory limitation period, as distinguished from their
execution, the Union's contention that the unfair labor
practice findings are barred by Section 10(b) of the Act is
clearly without merit.
Notwithstanding the presence of the unlawful
union-security provisions in the contract, I find, in
disagreement with the General Counsel, that they were not
actually enforced. As previously noted, there is absolutely
no evidence that the Company gave any preference in
employment to union members or denied any applicant a
"As indicated previously , the union-security provisions had their genesis
in contracts long antedating 1959, when the Board first decided to assert
jurisdiction over hotels. The Respondents assert that these provisions were
and are valid under Michigan Law. M .C.L. Section 423 14 It is obviously
unnecessary to pass upon the correctness of this assertion since their
validity depends upon the requirements of the Act.
"Insofar as the clause requires membership "within thirty (30) days after
being employed," the Board has held that that is a sufficient compliance
with the time requirement in the proviso to Sec 8 (a)(3) of the Act. New
York State Electric & Gas Corporation, 135 NLRB 357, 361, State
Packing Company, 137 NLRB 1420.
"I find art . II, sec 1, of the Respondents' contract which obligates the
Company to deduct dues and initiation fees from the wages of union
members "by the 25th day of each month " for remittance to the Union, as
being nothing more than a procedural arrangement for handling deductions
and not a provision designed to deprive new employees of the right to
refrain from paying union dues and initiation fees during the first 30 days
of their employment . I therefore conclude, contrary to the General
Counsel 's contention , that this clause does not prescribe a greater degree of
union security than that sanctioned by the Act.
"See, for example , Port Chester Electrical Construction Corporation, 97
NLRB 354, 355, and cases there cited.
"Ibid.
PANTLIND HOTEL COMPANY 823
job because he was not a member of the Union or eligible
for membership . Moreover , not only does it appear that
the Union did not operate a conventional type hiring hall,
but also it is undisputed that the Company obtained
virtually all of its, peisonnei< during the period here
involved from sources other than the Union . In addition,
the record is sorely wanting in evidence that any employee
was required or otherwise compelled at the time of hiring
or before 30 days had elapsed to join or agree to join the
Union or complete a membership application card as a
condition of acquiring or retaining employment . Quite the
contrary, the only testimony produced on this subject
shows that , when the Company's Chief Engineer DeVries
hired an individual and handed him a union card , DeVries
advised him that, under the terms of the current
agreement , the employees had to join the Union after 30
days or risk discharge . There is also testimony given by
Company President Roberts that he usually instructed the
"newer" supervisors to , pass out cards to the new
employees and inform them they were obliged to become
members 30 days after employment . Significantly , no dues
or initiation fees were deducted from the wages of new
employees during , the 30-day period following the
inception of their employment ; indeed , initial deductions
were frequently made much later to the Union's
dissatisfaction . Furthermore, there is no evidence that the
deductions were not authorizeed31 or that any employee
preferred to pay, or was prevented from paying, his
membership dues or initiation fees in any other manner.
In these circumstances , I can only conclude that the
General Counsel has not substantiated the allegations of
the amended complaint that the Respondents have
enforced during the critical period here involved the illegal
union-security provisions and, in particular , by requiring
new employees , "as a part of the hiring process and as a
condition of hire," to fill out applications for membership. 22
Instead , I find that the evidence establishes that, in
practice , the Respondents applied the union-security
provisions in conformity with statutory restrictions to
require newly hired employees to become union members
and to pay the requisite initiation fees and monthly dues
only after they had been in-the Company's employ for 30
days, which, under the contract, coincided with their
probationary period . The fact that some supervisors at the
time of hiring advised.-new employees of this obligation
and handed them union membership application cards
which also indicated the availability of a checkoff as a
method for paying their initiation fees and monthly dues
is not, in my opinion , a sufficient basis for making an
unfair labor practice finding , as the General Counsel
would have me do.23
In sum, I conclude that, despite the Respondents'
failure to delete the unlawful union-security clauses from
the contract , whether, through neglect or inadvertence, no
discriminatory conditions of employment violative of
"As indicated previously , the membership application card contained a
checkoff authorization.
"Western Building Maintenance Co., 162 NLRB No 73; Campbell
Soup Company, 152 NLRB 1645, enfd . 378 F.2d 259 (C.A. 9), cert. denied
389 U.S. 900; and other cases cited by the General Counsel to support
findings of violations under Section 8(axl), (2), and (3) and 8(bx1XA) and
(2) of the Act are factually distinguishable . There, unlike here, newly hired
employees were required , as a condition of employment , to join the
contracting union immediately by signing union membership and checkoff
authorization cards , and to pay initiation fees and dues during the first 30
days of employment through the checkoff, thereby denying these employees
the 30-day statutory grace period to perform these obligations
"Cf. Keller Plastics Eastern , Inc., 157 NLRB 583, 585, 587.
Section 8(a)(3) and 8(b)(2) were actually created.2° For the
same reason , I find that the Company did not assist or
contribute financial or other support to the Union, whose
majority status is not otherwise questioned, within the
meaning of Section 8 (a)(2) of the Act.
2. With respect to Carpenter's discharge
Admittedly, Carpenter was discharged by Chief
Engineer DeVries on or about November 7, 1967,
following Carpenter's reinstatement after a month's
absence, because he refused to sign a union
membership application card. The General Counsel
contends that the discharge was effected pursuant to the
illegal union-security clauses in the contract and that
therefore it was violative of Sections 8(a)(3) and (1) and
8(b)(2) and (1)(A) of the Act. The Respondents deny that
the discharge was discriminatorily motivated.25
As found above, the contractual union-security
provisions have been applied in a lawful manner to require
union membership at the end of 30 days of employment.
Although Carpenter had never executed a union card since
the time the maintenance employees were added to the
contract's coverage in September 1966, following the
Union's victory at the election conducted by the Michigan
Labor Mediation Board, he was always treated as a union
member with his monthly dues being regularly deducted
until October 1967, when he absented himself from work.
During this period, the Respondents appear to have been
totally unaware that Carpenter had not executed a union
card, nor did Carpenter bring this fact to their attention.
Moreover, at no time did Carpenter protest to the
Company or the Union that the deduction of dues from
his wages was unauthorized or that he was not obligated
to pay dues. Similarly, he never demanded that the
deductions be stopped or that the checked-off moneys be
returned to him. Indeed, the only time he expressed the
view that the deductions were improper was in June 1967
when he complained to Union Business Representative
Smith that the contract was not being enforced in that he
was not receiving the increase in wage rates therein set
forth. Actually, the dues deductions served to keep
Carpenter in compliance with the membership
requirements of the contract, as lawfully interpreted and
applied by the Respondents.2'
Viewing the circumstances of Carpenter's dismissal in
light of the foregoing facts and the history of his
employment with the Company, I am not convinced that
the Company's conditioning of Carpenter's continued
employment upon his signing a union membership
application card on November 7 deprived him of the
statutory right to refrain from joining the Union. I find
that Carpenter was not a new employee at that time
entitled to a 30-day grace period before becoming a union
member in accordance with the contractual union-shop
requirement, as legally applied by the Respondents. r'
"Port Chester Electrical Construction Corporation, supra, 355.
"The Union also insists that it neither caused nor was otherwise
responsible for the Company 's action and that therefore it may not be
found in violation of Sec . 8(b)(2) or (1)(A) of the Act In view of my
determination hereinafter made that the discharge was lawful , I do not
reach this contention.
"The fact that deduction of dues from Carpenter' s wages without written
authorization may subject the Respondents to liability under Section 302
of the Act, such conduct is not per se an unfair labor practice . Salant &
Salant, Inc, 88 NLRB 816, 817-819
"Cf. State Packing Company, 137 NLRB 1420, 1421-23.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, as discussed earlier, Carpenter had been in the
Company's employ for well over a year before he took
leave from his job on October 2, 1967, for a few days,
remaining away, however, until November 3 without
notification to the Company. During this interval of
absence and on October 5, Carpenter informed Union
Business Representative Smith that he was withholding his
services until the Company raised his hourly wage rate to
$1.40 an hour as provided in the contract. With Smith's
assistance, Carpenter filed a grievance against the
Company, which Smith thereafter successfully adjusted.
Because of Carpenter's failure to keep Smith posted of his
latest address, he was not reinstated until November 3,
when Smith arranged with the Company for Carpenter's
return.
In short, I find that Carpenter had a continuing
employment relationship with the Company, even though
it was temporarily interrupted by his absence. As
Carpenter had been in the Company's employ for more
than 30 days on November 7, I find that he was obligated
to join the Union by signing the union membership
application card the Company had tendered him on that
date. Clearly, there is no reason to believe that the
"membership" thus contemplated as a condition of
employment was more than that "whittled down to its
financial core,"" that is, membership limited to the
payment of initiation fees and monthly dues. Furthermore,
the presence of the checkoff authorization in the union
card Carpenter was requested to sign did no more than
make available to him the checkoff as a method of paying
his monthly dues, if he so desired," and did not nullify his
obligation to join the Union.J° Not only did Carpenter not
offer to meet in any other way his lawful financial
obligations to the Union, as the employees' duly
designated bargaining representative, but declined to sign
the membership application card for the asserted reasons
that the contract was not being enforced with respect to
wage rates and that it would prejudice his case, although
it is not clear whether the case was against the Company,
the Union or both.
Accordingly, it is concluded that, as union membership
was a lawful condition of employment, the General
Counsel failed to sustain the allegations of the amended
complaint that the Company discriminatorily discharged
Carpenter in violation of Section 8(a)(3) and (1) of the
Act and that the Union caused the discharge in violation
of Section 8(b)(2) and (1)(A) of the Act. I therefore
recommend dismissal of amended complaint in this
respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section
III, above , occurring in connection with the Respondent
Company's operations described in section I, above, have
a close , intimate , and substantial relation to trade , traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and
its free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondents be ordered to cease and
desist from engaging in the unfair labor practices found
and in like and related conduct and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that the Respondents have unlawfully
retained in their collective-bargaining contract
union-security provisions which exceed permissible
statutory limits although, in practice, they have not been
enforced in a prohibited manner . As the mere retention of
these unlawful provisions tend to inhibit employees in the
exercise of their guaranteed rights under the Act, I
recommend that the Respondents be ordered to delete
these clauses from their contract, if they have not as yet
been removed, and to refrain from including them or
other prohibited union-security clauses in future contracts
between the parties. The posting of appropriate notices is
also recommended.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. By maintaining in their collective-bargaining
agreement illegal union-security clauses which provide for
preferential hiring of union members and the employment
only of nonmembers who are eligible for union
membership and who agree at the time of hiring to
become members in good standing within 30 days, and
which commit the Company to require at the time of
hiring that the new employees fill out membership
application cards, the Respondent Company interfered
with, restrained and coerced employees in the exercise of
their statutory rights within the meaning of Section 8(a)(1)
of the Act, and the Respondent Union restrained and
coerced employees within the meaning of Section
8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondents did not commit the other unfair
labor practices alleged in the amended complaint as
violations of Section 8(a)(1), (2), and (3) and 8(b)(1)(A)
and (2) of the Act.
[Recommended Order omitted from publication].
"N L R B v General Motors Corporation. 373 U S 734, 742
"
"Keller Plastics Eastern . Inc . supra. 587
Nor was Carpenter's unwillingness to sign the Union card justified
because it contained a provision authorizing the Union to represent him as
his collective-bargaining agent , as the amended complaint suggests he was
It is perfectly clear that the Union already enjoyed that status by reason of
its designation in an election conducted by the Michigan Labor Mediation
Board and its subsequent contract with the Company.