R & G Sloane Mfg.

National Labor Relations Board - Board Decisions

Sep 28, 1967

167 N.L.R.B. 610 (N.L.R.B. 1967)

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No . 621, United Rubber , Cork, Lino-
leum and Plastic Workers of America, AFL-CIO
and Atlantic Research Corporation d/b/a R& G
Sloane Manufacturing Division of Atlantic
Research Corporation . Case 31-CB-108
September 28, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On February 9, 1967, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(b)(1)(A)
and (2) of the National Labor Relations Act, as
amended, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent , Local Union No. 621,
United Rubber , Cork, Linoleum and Plastic Work-
ers of America , AFL-CIO, its officers , agents,
and representatives, shall take the action set forth
in the Trial Examiner ' s Recommended Order, as
herein modified:
1. Revise paragraph 2(b) by inserting the words
"and meeting places" after the word "offices."
I This case is distinguishable from N L R B v International Union,
United Automobile, Aircraft and Agricultural Implement Workers of
America, AFL-CIO (John I. Paulding , Inc), 320 F 2d 12 (C A 1), where
the court found that union members cannot effectively resign from a union
if they do not follow the procedural steps for resigning which are set forth
in the union 's constitution Unlike the situation in that case , the constitu-
tion of the instant Respondent sets forth no procedure by which em-
ployees may voluntarily resign while continuing their employment In
these circumstances, as is true of membership in voluntary associations
generally, the employees involved herein were at liberty to resign at will
See Communications Workers of America, CIO v (New Jersey Bell
Telephone Co ), 215 F 2d 835, 838 (C A 2), enfg 106 NLRB 1322
Their resignations, accordingly, were effective, and as they were not
members of Respondent Union on the govering date of the maintenance
of membership clause fixed in the new contract, we find, as did the Trial
Examiner, that Respondent's demands of the Company that they be
discharged for the failure to pay dues constituted a violation of Section
8(b)(2) and (1)(A) of the Act, and that Respondent 's letter to the 4 in-
dividuals informing them that their discharge would be demanded was
violative of Section 8(b)(I)(A) of the Act
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Upon a charge duly
filed on April 16, 1966, by Atlantic Research Corpora-
tion d/b/a R & G Sloane Manufacturing Division of At-
lantic Research Corporation, herein Sloane, the General
Counsel of the National Labor Relations Board, herein
the Board, issued a Complaint and Notice of Hearing,
dated June 24, 1966, alleging that Local Union No. 621,
United Rubber, Cork, Linoleum, and Plastic Workers of
America, AFL-CIO, herein Respondent, violated Sec-
tion 8(b)(1)(A) and (2) of the National Labor Relations
Act, herein the Act. In due course the Union denied the
commission of any unfair labor practices.
Pursuant to due notice, a hearing in this matter was
held before me in Los Angeles, California, on October
25, 1966. The parties fully participated. Briefs submitted
by General Counsel and Respondent have been con-
sidered.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Sloane has its principal office and place of business in
Sun Valley, California. At all material times, it has been
engaged in the business of manufacture, distribution, and
sale of plastic extruded products It annually, in its busi-
ness operations, sells and ships from its California plant,
directly to points outside California, products valued in
excess of $50,000.
At all times material, Sloane has been an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of the Act
It. THE LABOR ORGANIZATION INVOLVED
Respondent , at all material times, has been a labor or-
ganization within the meaning of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Did the Union violate Section 8(b)(2) of the Act by
demanding that Sloane discharge its employees Don W.
Ackerley, Robert J. Barclay, James A. Spinks, and Eleno
Topete because they were not members in good standing
of the Union9
2. By the above conduct and by informing the above
employees of the requests for their discharges, did the
Union violate Section 8(b) (l)(A) of the Act?
167 NLRB No. 83
R & G SLOANE MFG. 611
3. Is an arbitrator's decision in any way determinative
of the basic issues in this case?
B. The Facts
Sloane and Respondent had a contract containing a
maintenance of membership clause which was effective
from March 4, 1964, through March 4, 1965. From
March 5, 1965, through March 14, 1965, Sloane and the
Union had no contract. Beginning March 15, 1965,
through March 4, 1968, Sloane and the Union entered
into a new contract containing a maintenance of member-
ship clause. During the hiatus between the two contracts
when there was no maintenance of membership require-
ment, Ackerley, Barclay, Spinks, and Topete, and other
employees,' advised Sloane and the Union that they were
resigning from the Union. The four employees herein in-
volved did not simultaneously revoke their dues
checkoffs, previously executed by them. Sloane stopped
checking off their dues for Respondent because they were
no longer members. Respondent grieved over Sloane's
failure to check off the dues of the four employees. The
grievance went to arbitration. On September 13, 1965,
the arbitrator found that dues must continue to be
deducted from the wages of the employees who resigned
from Respondent during the hiatus, excepting for one em-
ployee who also revoked his checkoff authorization. In
his decision, the arbitrator stated, among other things:
In conclusion , it should be added that this award
does not effect the membership of the 29 employees
in the Union. It relates only to the issue of whether
their dues checkoff authorizations were revoked as
provided for in the agreement. To hold that they did
not comply with the agreement in this regard does
not determine their past or present membership
status. That is a matter for resolution between them
and their Union.
Subsequently, and until November 1965, Sloane
checked off all dues from these four employees and per-
haps others. 2
November 1965 was the anniversary date of the
checkoff authorizations of the four employees. During
November they sent letters to Sloane and Respondent
revoking their authorizations. Sloane ceased the
checkoffs for these employees. Dues not having been
received by Respondent from these employees for more
than three months, Respondent's attorney, by letter,
asked Sloane to discharge the four employees because
they had lost membership in Respondent due to their
failure to pay dues. On the same date, Respondent's pre-
sident wrote to each of the four, stating they had been
dropped from membership for nonpayment of dues and
advising each that Respondent would demand their
discharge by Sloane.
Concluding Findings
There is no doubt that, as was their right, Ackerley,
Barclay, Spinks, and Topete, resigned from Respondent
during that time in March when there was no contract
requiring them to maintain membership. These were ef-
fective resignations and there was no law requiring them
to resume membership under a new contract.
Respondent's constitution is invoked by Respondent
as preventing any voluntary withdrawal from member-
ship during a time when there is no contract requiring
maintenance of membership. Respondent's International
representative, Ramroth, testified that there is no provi-
sion in the constitution for withdrawal from membership
other than to leave the employ of an employer with whom
Respondent has a contract. I find the constitution to be
silent as to the right of a member to withdraw from mem-
bership when Respondent does not have a contract with
the member's employer. I further conclude that a member
may resign at will from any labor organization where his
membership, as here, was for an indefinite period. It is
clear that having effectively resigned, the four employees
were not members of Respondent when the current col-
lective-bargaining agreement was executed and the new
maintenance of membership clause was ineffectual as to
them. The arbitrator's decision does not, by its terms,
touch on this matter. Should it be found that it does deal
adversely in this matter, I would find it to be of no binding
effect as contrary to the policies of the Act. Upon timely
resigning from membership, an employee may cease pay-
ing union dues.
The four employees effectively resigned from Respond-
ent during the hiatus period. Respondent's demands of
Sloane that they be discharged for failure to pay dues at
a time they were no longer members and under no obliga-
tion to pay dues as nonmembers, violated Section 8(b)(2)
and (1)(A) of the Act. So, also, did Respondent's letter to
the four informing them that their discharge would be de-
manded, violate Section 8(b)(1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship 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 Respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the above findings of fact, and on the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Sloane is engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of the Act.
3. By attempting to cause Sloane to discriminate
against Ackerley , Barclay, Spinks, and Topete in viola-
tion of Section 8(a)(3) of the Act, and by advising these
employees of such attempt to cause their discharges,
Respondent has violated Section 8 (b)(1)(A) and (2) of the
Act.
These violations go to the heart of the Act, and a broad
order is required.
I Not here involved. 2 This was pursuant to the arbitrator's decision.
310-541 0 - 70 - 40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER APPENDIX
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in the case, it is
recommended that Respondent, its agents, officers, and
representatives, shall:
1. Cease and desist from
(a) Attempting to cause Sloane to discriminate against
the four employees named herein, or any other em-
ployees, in the exercise of rights guaranteed in Section 7
of the Act except in a manner permitted by Section
8(a)(3) of the Act, and from advising each of the four em-
ployees of the attempts to cause their discharge.
(b) In any other manner restraining or coercing em-
ployees in the exercise of rights guaranteed in Section 7
of the Act except in a manner permitted by Section
8(a)(3) of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Notify Ackerley, Barclay, Spinks, and Topete,
each, and Sloane, in writing, that it has no objection to the
employment of either or any of the four employees in any
capacity or manner by Sloane.
(b) Post at its offices in conspicuous places, copies of
the attached notice marked "Appendix." 3 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 31, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Promptly mail to said Regional Director signed co-
pies of the Appendix for posting, Sloane being willing, at
Sloane's place of business.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.4
3 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
4 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 NOT attempt to cause R & G Sloane
Manufacturing, Division of Atlantic Research Cor-
poration to discriminate against Robert J. Barclay,
James A. Spinks, Don W. Ackerley or Eleno Topete
or any other employee, because they are not mem-
bers of our organization at a time when they are not
required to be such members, or to discriminate
against them or any other employee in violation of
Section 8(a)(3) of the Act.
WE WILL NOT advise any of the above employees
or any other employee that we have requested their
discharge because they were not members in good
standing of our organization at a time when they are
not required to be members.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of rights guaran-
teed them in Section 7 of the Act, except in con-
formity with Section 8(a)(3) of the Act.
WE WILL notify each of the four above employees
and Sloane, in writing, that we have no objection to
the four employees' employment in any capacity or
manner consistent with any lawful labor agreement
between us and Sloane.
LOCAL UNION NO. 62I,
UNITED RUBBER, CORK,
LINOLEUM, AND PLASTIC
WORKERS OF AMERICA,
AFL-CIO
(Labor Organization)
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.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 10th Floor,
Bartlett Building, 215 West Seventh Street, Los Angeles,
California 90014, Telephone 213-688-5850.