Penn Cork & Closures, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1965

156 N.L.R.B. 411 (N.L.R.B. 1965)

PENN CORK & CLOSURES, INC. 411
to discharge Packard may of course been hastened by thoughts that Packard was a
potential agitator of certain imagination and ingenuity in the gear department, but
evidence to support such a motivation is extremely tenuous. In fact, it exists almost
exclusively , if not entirely so, upon an evaluation of the circumstances that the Com-
pany had a comfortable and secured relationship with the shop committee , and did
not want it to be disturbed . However, the facts that must be relied on without mere
speculation is that Packard was a dissenting element who objected to the wage
package. Equally clear are the facts that his objections registered through the
cartoons caused concern in their pointed direction and personal attack on President
Buehler. To my knowledge the Act does not protect malicious ridicule or flagrant
misconduct , nor activity to destroy plant discipline , nor does it protect the misconduct
of an employee who renders himself unfair for further service by his own individual
deeds Moreover , the Company did not know that Packard was leading any group as
openly acknowledged in Packard 's own testimony , and to put the frosting on the cake,
so to speak , the night-shift chairman of the shop committee , Joe Jones , stated that
under the particular circumstances involved in this discharge he did not feel that
Packard was unfairly treated. Neither do I. I conclude and find that on the record
presented here a preponderance of the evidence does not support the complaint that
Packard was discharged in violation of Section 8(a)(3) and (1) of the Act.
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 is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The allegations of the complaint that the Company has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a)(1) and ( 3) of the
Act have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , it is recommended that the complaint herein be dis-
missed in its entirety.
Penn Cork & Closures , Inc. and Alejandrino Vega Sustache and
District Lodge No. 15 of the International Association of Ma-
chinists, AFL-CIO, Party to the Contract . Case No. 29-CA-
171. December 28,1965
DECISION AND ORDER
Upon charges duly filed on March 9, 1965, by Alejandrina Vega
Sustache , an individual, the General Counsel for the National Labor
Relations Board, by the Regional Director for Region 29, issued a
complaint on June 22, 1965, against Penn Cork & Closures, Inc.,
herein called the Respondent, alleging that it had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (2) of the National Labor Relations
Act, as amended. Copies of the complaint, the charge, and notice of
hearing were duly served upon the Respondent and upon District
Lodge No. 15 of the International Association of Machinists, AFL-
CIO, Party to the Contract, and upon the Charging Party.
With respect to the unfair labor practices, the complaint alleged,
in substance, that by continuing to deduct union membership dues
under employee checkoff authorizations following union deauthoriza-
156 NLRB No. 39.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, membership resignations, and attempted revocations of check-
off, the Respondent has interfered with the Section 7 rights of its
employees in violation of Section 8(a) (1), and has rendered unlawful
assistance and support to a labor organization and contributed finan-
cial support to it in violation of Section 8(a) (2). On June 24, 1965,
the Respondent filed an answer admitting the allegations in part and
denying them in part, and alleging as an affirmative defense the
irrevocability of the pertinent checkoff authorizations at the time in
question.
On August 18 and 19, 1965, all parties entered into a stipulation
which provides that the parties waive their rights to a hearing and
to the issuance of a Trial Examiner's Decision. In lieu thereof the
parties stipulated that the entire record of this proceeding shall con-
sist of the stipulation, the charge, the complaint, and the answer. The
stipulation further provides that the case is submitted directly to the
Board for findings of fact, conclusions of law, and an order and
requests that the Board set a time for the filling of briefs.
By an order issued on August 25, 1965, the Board approved the
aforesaid stipulation, made it a part of the record herein, and trans-
ferred the matter to the Board.
Upon the basis of the aforesaid stipulation and the entire record
in this case, including the briefs of the Respondent, the Union, and
the General Counsel, the Board 1 makes the following :
FINDINGS OF FACT
1. -THE BUSINESS OF THE COMPANY
The Respondent is engaged in the manufacture, sale, and distribu-
tion of bottle caps, screw caps, and related products, with its principal
office and place of business at 1155 Manhattan Avenue in the Borough
of Brooklyn, New York, New York. It annually sells and ships goods
valued at more than $50,000 directly to customers located outside the
State of New York. We find that at all times material herein the
Respondent has been engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectuate the policies
of the Act to assert jurisdiction in this case.
II. TIIE LABOR ORGANIZATION INVOLVED.
District Lodge No. 15, of the International Association of Machin-
isis, AFL-CIO, Party to the Contract, is a labor organization within
the meaning of Section 2(5) of the Act.
1 Member Brown is not Participating
PENN CORK & CLOSURES, INC. 413
III. UNFAIR LABOR PRACTICES
We are here concerned with the checkoff authorizations executed
by some of the Respondent's employees in October and November 1964,
pursuant to a collective-bargaining agreement between the Respondent
and the Union effective until December 31, 1964. These authoriza-
tions by their terms are irrevocable for 1 year, or "up to" the termina-
tion date of the current contract, if sooner, except for 15-day periods
after any irrevocable period, and continue in effect for yearly periods
thereafter unless revoked in writing 15 days after any irrevocable
period. This is the type of checkoff specified in the contract. It is
also the type premissible by statute.2 The contract also contains a
union-security provision requiring membership as a condition of
employment 90 days after hire and maintenance-of-membership there-
after. Pursuant to these 1964 checkoff authorizations, the Respondent
began deducting dues from the wages of authorizing employees and
transmitting the dues to the Union.
Thereafter, the Respondent and the Union, on December 30, 1964,
entered into a new collective-bargaining agreement having identical
union-shop and checkoff provisions, effective from January 1, 1965,
to December 31,1967.
On January 5, 1965, a deauthorization petition was filed in the
Regional Office seeking to withdraw the authority of the Union to
require membership as a condition of employment in the.contract
unit .3 An election was held on January 29, 1965, at which a majority
of unit employees eligible to vote cast their ballots in favor of deau-
thorization. On February 8, the Regional Director issued a certifica-
tion of result to that effect and on February 25- a statement was signed
by 57 employees, and delivered to the Respondent and the Union,
informing the Union of the resignation of these employees froin
membership as of that date, and informing the Employer and the
Union that "no dues shall be deducted from our wages." Nevertheless,
the Employer, Respondent here, continued to deduct dues, as requested
by the Union, and to hold them in a special fund. It notified its
employees as follows:
Union dues are being deducted from your pay check because
we have a signed Authorization from you which, by its terms,
cannot be revoked at this time. Your dues are being kept in a
2 See Section 302(c) (4).
3 Section 9 ( e) (1) of the Act provides for such petition , as follows . Upon filing with
the Board , by 30 percent or more of the employees in a bargaining unit covered by an
agreement between their employer and a labor organization made pursuant to Section
8(a) (3), of a petition alleging they desire that such authority be rescinded , the Board
shall take a secret ballot of the employees in such a unit and certify the results thereof
to such labor organization and to the employer.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
special fund. When the right to the dues has been judicially
determined, the dues will be either refunded to you or paid to
the Union.
At the time the checkoff authorizations in question were signed by
the employees and at the time the deauthorization election was held,
the contract required that the employees be union members as a con-
dition of employment. The deauthorization election, however, had
the effect, when certified by the Regional Director, of immediately
suspending the union-shop provision of the contract 4 After that it
was no longer necessary for any employee in the unit to remain a
member of the Union as a condition of continuing employment. Many
employees took the opportunity to resign from membership, as they
were entitled to do under Section 7 of the Act, thus exercising their
statutory right as individuals to refrain from union activity m the
absence of a union-shop provision.
The Union contends, however, that the right to discontinue union
membership is not the right to revoke outstanding checkoff authoriza-
tions inasmuch as signing a checkoff authorization is optional with
employees and not dependent upon the existence of union security.5
Checkoff is optional, of course, but on the facts before us we cannot
agree that the exercise of this option by employees is in all circum-
stances independent of the impact of union security. Here the
Respondent and the Union had agreed to a contract containing
both union-security and checkoff provisions. The contract not only
required the employees to be union members but offered them the
convenience of paying membership dues effortlessly through wage
deductions which the Employer agreed to make. When executing
these checkoff authorizations, the employees can hardly have been
unmindful of the fact that they had to pay union dues. In these
circumstances it would be unreasonable to infer that all employees
who authorized the checkoff would have done so apart from the
existence of the union-security provision and the necessity of paying
union dues, or to infer that these same employees would, as a whole,
wish to continue their checkoff authorizations even after the union-
security provision was inoperative. Hence we conclude that when
there has been an affirmative deauthorization vote, outstanding check-
off authorizations originally executed while a union-security provision
is in effect become vulnerable to revocation regardless of their terms.
The right of a majority of the employees to withdraw union-shop
authority would indeed be an empty one if individually they could
See Monsanto Chemical Company, 147 NLRB 49.
The Respondent in its brief states that its position in this proceeding is "passive"
or "stand by."
PENN CORK & CLOSURES, INC. 415
not thereafter cease paying union dues upon resigning from member-
ship. Some employees may not avail themselves of this revocability
feature following union deauthorization, but the right to avail them-
selves of it, which we here recognize, we believe is consistent with the
congressional purpose of Section 9(e) (1) not to impose a union-
security agreement upon an unwilling majority, as well as with the
Board's well-established interpretation that deauthorization under
Section 9 (e) (1) is immediately eff ective.6
Accordingly, based on the record and stipulation now before us and
for the reasons stated, we find that by continuing to deduct union
membership dues pursuant to checkoff authorizations executed during
the existence of a union shop by individual employees who had
resigned from union membership and revoked their checkoff authoriza-
tions, after a majority of the unit employees had voted to withdraw
the Union's authority to require under its bargaining agreement
membership in the Union as a condition of employment, the Respond-
ent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed them in Section 7 of the Act, in
violation of Section 8(a) (1) of the Act, and has rendered unlawful
assistance and support and contributed financial support to a labor
organization, in violation of Section 8(a) (2) of the Act.
IF. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE
The activities of the Respondent set forth in section III, above,
occurring in connection with the 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 the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
The Board, upon the basis of the foregoing facts and the entire
record, makes the following :
CONCLUSIONS OF LAW
1. Penn Cork & Closures, Inc., is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
a See Great Atlantic & Pacific Tea Company ( National Bakery Division), 100 NLRB
1494, 1497; Andor Company, Inc ., 119 NLRB 925, 929; Monsanto Chemical Company, 147
NLRB 49, 51.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. District Lodge No. 15 of the International Association of Machin-
ists, AFL-CIO, is a labor organization within the meaning of the Act.
3. By continuing to deduct union membership dues pursuant to
checkoff authorizations executed by individual employees during the
existence of a union shop, after the employees had resigned from
union membership following union deauthorization and had attempted
to revoke their checkoff authorizations, the Respondent has violated
Section 8(a) (1) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Penn Cork & Closures, Inc., Brooklyn, New York, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Continuing to deduct union membership dues pursuant to
checkoff authorizations executed by individual employees during the
existence of a union shop, after an affirmative union deauthorization
vote has been held and said employees have resigned from union
membership and have attempted to revoke their said checkoff
authorizations.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act.
(a) Reimburse all present and former employees who signed check-
off authorizations in October and November 1964, and, who, after
union deauthorization, resigned from union membership on Feb-
ruary 25, 1965, and attempted to revoke their dues checkoff authoriza-
tions, for all sums improperly deducted from their wages in payment
of union dues since that date, together with interest thereon at the
rate of 6 percent per annum.
(b) Post at its plant in Brooklyn, New York, copies of the attached
notice marked "Appendix." 7 Copies of said notice, to be furnished
7In 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."
PENN CORK & CLOSURES, INC. 417
by the Regional Director for Region 29, shall, after being duly signed
by the Company's representative, be posted by the Company immedi-
ately 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 Company to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
MEMBER BROWN took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL refund to all present and former employees who
signed checkoff authorizations in October and November 1964 and
who, following union deauthorization, resigned from union
membership on February 25, 1965, and attempted to revoke their
dues checkoff authorizations, all sums improperly deducted from
their wages in payment of union dues since February 25, 1965,
together with interest thereon at the rate of 6 percent per annum.
WE WILL NOT continue to deduct union membership dues under
the foregoing circumstances, and will not in any like or related
manner interfere with, restrain, or coerce employees in the exercise
of rights guaranteed them by Section 7 of the Act.
PENN CORK & CLOSURES, INC.,
Emnployer.
Dated---------------- 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.
Employees may communicate directly with the Board's Regional
Office, Fourth Floor, 16 Court Street, Brooklyn, New York, Telephone
No. 596-5386.