Trico Products Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1971

189 N.L.R.B. 243 (N.L.R.B. 1971)

TRICO PRODUCTS CORP 243
Trico Products Corporation and Ronald H. Schlifke
Metal Polishers , Buffers , Platers and Helpers
International Union, Local 18 , AFL-CIO (Trico
Products Corporation) and Ronald H. Schlifke.
Cases 3-CA-4180 and 3-CB-1478
unnecessary to pass upon the other legal theories argued by the parties and
discussed by the Trial Examiner
2 In footnote 12 of the Trial Examiner 's Decision , substitute "20" for
"10" days
TRIAL EXAMINER 'S DECISION
March 24, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On December 7, 1970, Trial Examiner Milton Janus
issued his Decision in the above-entitled proceeding,
finding that the Respondent Union had engaged in
and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that the
Respondent Employer had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal of those allegations.
Thereafter, the Respondent Union filed exceptions to
the Trial Examiner's Decision and a supporting brief.
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 brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Metal Polishers, Buffers, Platers and
Helpers International Union, Local 18, AFL-CIO, its
officers, agent, and representatives, shall take the
action set forth in the Trial Examiner's recommended
Order.2
i In affirming the Trial Examiner's Section 8(b)(2) finding, we rely
solely on the record evidence indicating that Schlifke, regardless of whether
he was contractually and legally obligated to do so, had satisfied all the
Union's own internal rules with respect to the tender of the periodic dues
and initiation fees uniformly required as a condition of retaining
membership in good standing Accordingly, in these circumstances, we find
that the Union's action in causing the cancellation of Schlifke's recall on
July 6, 1970, was violative of Section 8(b)(2) of the Act We find it
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner: On July 7, 1970, and on
August 5, 1970, Ronald H. Schlifke filed charges and
amended charges, respectively, against Tnco Products
Corporation (Trico or the Company) in Case 3-CA-4180,
and against Metal Polishers, Buffers, Platers and Helpers
International Union, Local No. 18, AFL-CIO (Local 18 or
the Union), in Case 3-CB-1478. On August 18, 1970, the
Acting Regional Director for Region 3 issued an order
consolidating the two cases, and a consolidated complaint.
The complaint alleges that the Union violated Section
8(b)(1)(A) and 8(b)(2) by coercing Tnco to remove
Schlifke's name from the seniority list and by causing Trico
to refuse to recall him from layoff because he had obtained
a withdrawal card from the Union and/or did not maintain
membership in the Union at a time when he was not
required to maintain such membership. The complaint also
alleges that Tnco violated Section 8(a)(3) and (1) by
removing Schlifke's name from the seniority list and by
failing to recall him from layoff, for the reasons alleged to
have been motivated by the Union. On August 21, 1970,
and on August 26, 1970, Tnco and the Union filed their
respective answers denying the commission of any unfair
labor practices on its own part.
I conducted a hearing in this matter on October 8, 1970,
at Buffalo, New York. The Union and the Company each
duly filed a brief which I have considered. The Union also
filed a reply brief to the Company's brief, which I hereby
accept. Upon the entire record in this case, including my
observation of the witnesses and their demeanor while
testifying, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Tnco is a New York corporation with its principal office
and place of business in Buffalo, New York, where it is
engaged in the manufacture, sale, and distribution of
automobile windshield wipers, accessories, and related
products. During the year ending July 1, 1970, Trico had a
direct inflow of goods and products in interstate commerce
valued in excess of $50,000, which it purchased and caused
to be shipped directly from points outside the State of New
York to its plants in Buffalo. I find that Tnco is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
189 NLRB No. 31
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES therefore find that Zaidel told Schlifke, before issuing him a
withdrawal card, that his seniority at Tnco would not be
affected by his accepting employment elsewhere, and what
his dues obligations would be on his recall by Tnco.
The Union sent Schlifke a withdrawal card a few weeks
after his conversation with Zaidel, which Schlifke deposited
with the Steelworkers at his new place of employment.
Schlifke paid no dues to Local 18 during the months of
April, May, and June, while he was on layoff from Trico,
nor did the Union advise him at any time during this period
that they considered him obligated to keep his dues
payments current.
On June 22, the president of Local 18, Andrew Hay, gave
an employee in the Company' s personnel office an
unsigned, handwritten list of names of employees who
were on withdrawal or who had been suspended. The
Company refused to accept it in that form and on or about
July 1, a list of names, on the Union's stationery and
signed by Hay, was then submitted to the Company. It
advised the Company that eight-named employees, includ-
ing Schlifke, were to be removed from the seniority list per
section 2(b) of the contract.3
In the meantime , late in June the Company needed more
help and, in accordance with the contract and its usual
practice, prepared a list of laid-off employees in order of
their seniority for recall . Schlifke was among the group to
be recalled. About July 1, Schlifke was advised to return to
work on July 6, but the next day, after receipt of the
Union's list of those in bad standing , the Company
informed him that his recall had been canceled.
Schlifke then made two phone calls, one to the
Company's personnel office, and one to Hay, president of
Local 18. He asked the personnel officer why he wasn't
being called back to work, and was told that the Company
had received a list of names from the Union, including his,
of those who hadn't paid their union dues, that he was no
longer a union member and that the Company did not have
to hire him back under the contract. Schlifke also called
Hay to complain about not being recalled. He told Hay that
Zaidel had advised him that with a withdrawal card he
would have 6 months to pay up his dues, and that with it he
could be "established back into the union." Hay told him
that Zaidel had given him wrong information, that in fact
taking a withdrawal card was the equivalent of quitting his
job and leaving the Union, and that he didn't care what
Zaidel had said, Schlifke was out as far as he was
concerned. Schlifke's testimony about his conversation
with Hay is undenied.
Schlifke was thereby denied the opportunity to return to
work on July 6, the date originally scheduled for his recall.
However, on July 27, the Company advised him to return to
work on July 29, and Schlifke did so. As of the date of the
hearing, Schlifke was still employed by the Company.
After he returned to work Schlifke sent the Union a
check for $6.75 in payment of his unpaid dues from April
and all future employees are required as a condition of employment to
become members of the Union 30 days after their employment and to
maintain such membership during the term of the agreement . As a matter
of fact, this section was not applicable to Schlifke, but Section 2(a) was,
providing that all present employees who were union members had to
maintain their membership during the term of the agreement
The Facts
The facts are largely undisputed. The Union is the
collective-bargaining representative for all hourly-paid
employees in the Company's metal polishing, burnishing,
and plating departments , with the usual exclusions. The
contract in effect during the period involved here was for a
3-year term expiring in June 1971. It provided in section
2(a) that "All present employees who are members of the
Union are required as a condition of continued employ-
ment by the Corporation, to maintain membership in the
Union during the term of this agreement."
The Charging Party, Schhfke, had been an employee of
Trico since 1962, and a member of the Union for the same
period. In November 1969, he was laid off for an indefinite
period. He was then current in his dues which had
theretofore been checked off by the Company. Thereafter,
he continued to pay his dues for the next 4 months,
December 1969 through March 1970, by sending them
directly to the Union's secretary.
In March, he obtained employment with another firm in
Buffalo, which had a bargaining contract with the
Steelworkers Union under which he would be obligated to
join that union. Schlifke then called Zaidel, the financial
secretary of Local 18, told him he had to join the
Steelworkers at his new place of employment and asked
him what to do. According to Schlifke's version of their
conversation, Zaidel told him he could apply for a
withdrawal card from Local 18 which, when deposited with
the Steelworkers, would save him from having to pay that
union's initiation fee. Schlifke then asked Zaidel how that
would affect him at Trico, and according to Schlifke, Zaidel
answered that it wouldn't affect his seniority at Trico, that
when he was called back to work there he would be
permitted to pay up the dues he owed for a 6-month period.
Zaidel's version of their conversation is that when Schlifke
called him about going to work elsewhere, he merely told
Schlifke that to get a withdrawal card from Local 18, he had
to be current in his dues. Zaidel said he could not recall
saying anything to Schlifke about his retention of seniority
at Trico. I believe that Schlifke's recollection of the
conversation is more credible than Zaidel's. In the first
place, I consider it unlikely that Schlifke would not have
raised with Zaidel the question of his seniority at Trico and
what he might have to do to retain his right to recall under
the Union's constitution and the contract.' Secondly, I
credit Schlifke's recollection of the conversation with
Zaidel because what he testified Zaidel told him conforms
to what the Union's constitution states to be a member's
dues obligation while he has a withdrawal card.2 I would
expect that Zaidel, the financial secretary of the Union,
would tell a member of his Union, when asked, what his
dues obligations were under the Union's constitution. I
' Under sec 7(g) of the contract, an employee with more than 5 years
service with the Company (which Schlifke had) retained his seniority while
on layoff regardless of the length of the layoff Recall rights under sec 7(e)
were determined by an employee's departmental seniority
2 Art 13, sec 6 of the Union's Laws The section will be set out in full
later in this Decision
3 That section provides in part that all present probationary employees
TRICO PRODUCTS CORP. 245
through July. On August 20 , the Union returned his check,
stating that he had withdrawn from the Union . It also
referred him to article 13, sections 3 and 6 of its laws, if it
was his intention to be reinstated in Local 18. On August
28, Schhfke having in the meantime gotten his withdrawal
card back from the Steelworkers Union , turned it in to
Zaidel together with $18 , which Zaidel accepted as
payment for his back dues.
Relevant Provisions of the Contract and the
Union's Constitution
I have already noted that section 2(a) of the contract
provides that all employees who are union members are
required as a condition of employment to maintain
membership during the term of the agreement. The
contract also provides in section 7(g) for loss of seniority
and dismissal if an employee quits, is discharged, is absent
for 3 days without satisfactory reason, fails to return to
work promptly after notification, or "is laid off for a
continuous period of 24 months or for a continuous period
in excess of the seniority held at the time of layoff,
whichever is shorter, except that an employee with a service
record of five or more years with the Company shall not
lose seniority while on layoff regardless of the length of
such layoff period."
The basic law of the International union and its locals is
contained in a single document, in evidence here as G.C.
Exh. 2. Article 11, dealing with suspensions and reinstate-
ments, provides, in sec. 5, that members in arrears for 3
months dues are suspended from both the local and
International union without any further action by either
organization.
Article 13, withdrawal cards, provides in sec. 1 for the
issuance of such a card to a member who is leaving the
trade, provided his dues are paid up to date. Section 3
provides, in part, that a withdrawal card will reinstate a
member in lieu of initiation fee if immediately deposited
with any local union whenever a member resumes work at
the trade. Since I consider sec. 6 of article 13 to be critical in
the decision of this case, I set it out in full:
Sec. 6. Any member taking out a withdrawal card and
returning to work within six months of date of taking
out such card must pay all back dues and local
assessments in full within 30 days, to the local issuing
said card. Member then retains his membership
previous to time of his withdrawal.
Finally, sec. 8 provides that members holding withdrawal
cards are not entitled to benefits under the constitution, but
shall have only the right to reinstatement without initiation
fee, provided he has properly complied with the provisions
of the constitution.
Concluding Findings
1. The alleged violations of Section 8(b)(1)(A)
and 8(b)(2)
The complaint alleges that the Union violated Section
8(b)(2) by causing Tnco to refuse to recall Schhfke from his
layoff because he had obtained a withdrawal card from it,
or because he had not maintained his membership at a time
when he was not required to do so. The same facts are also
used to support the allegation that the Union violated
Section 8(b)(1)(A).
In support of his contention that the Union violated the
Act by causing Trico to refuse to recall Schlifke from layoff
because he had obtained a withdrawal card, the General
Counsel relies on Local 50, American Bakery & Confection-
ery Workers Union, AFL-CIO (Ward Baking Company), 143
NLRB 233, enfd. 339 F.2d 324 (C.A. 2).
No case citation was offered for the second theory
advanced by the General Counsel, that the Union violated
the Act by causing Tnco to discriminate against Schlifke
because he had not maintained his membership when he
was not required to do so, that is, because he had not paid
dues to the Union from April through June, after he had
received a withdrawal card and while he was on layoff
from Trico. This aspect of the complaint can be sustained
only if it is illegal for a union to demand the payment of
dues , pursuant to a union -security clause in a bargaining
agreement, from a laid-off employee. During the hearing, I
called the attention of the parties to a decision which I had
recently issued, in which I held that a union violated
Section 8(bX2) by causing an employer to deprive an
employee of the seniority he was entitled to under their
contract, because the employee had failed to pay dues
during a 7-month layoff .4 In that case , the employee had
not obtained a withdrawal card from his union during the
entire layoff penod. No exceptions to that decision were
filed by any party and on November 13, 1970, the Board
adopted my findings and conclusions, pro forma and
ordered the union to take the action set forth in my
Recommended Order. Thus, the Decision stands as the law
for that case, but its precedential value is, of course,
minimal. After the time for filing exceptions in the Firemen
and Oilers case had passed, my attention was directed for
the first time to Pressed Steel Car Company, Inc., 89 NLRB
276, which held that a union could lawfully cause the
discharge of an employee under a union-security clause for
his failure to pay dues during layoff, if the employee failed
to follow the procedure prescribed in the union's constitu-
tion for exoneration of dues payment during a layoff
period. The Board's decision in the Pressed Steel Car case
thus rests, sub silentio, in my opinion , on the proposition
that a union may enforce a union-security clause by
requiring dues payments for periods of layoff in which an
employee renders no services to his employer and receives
no pay.5
However, I need not decide whether the Pressed Steel Car
case is dispositive, since I am convinced that the General
Counsel's first ground for finding a violation here, that the
Union caused Tnco to refuse to recall Schlifke from layoff
because he had taken out a withdrawal card is properly
based on the Bakery Workers case, 143 NLRB 233,
mentioned above.
In that case, the alleged discriminatee, Fisher, worked at
4 International Brotherhood of Firemen and Oilers, Local No 320, 5 See also Haffenreffer and Co, Inc, 104 NLRB 206, 215, where the
AFL-CIO (Airco Alloys and Carbide) TXD-602-70, issued October 5, 1970 statement of the same proposition is, however , dictum
(not published in Board volumes )
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Bronx plant of Ward Baking Company, which had a
contract with Local 50, Bakery Workers, containing a valid
union-security clause . Local 50 went on strike at the Bronx
plant, and Fisher joined it. During the strike, Fisher
obtained work at the Company's Newark plant, which was
not on strike. Local 84, Bakery Workers was the bargaining
representative at the Newark plant, and after 30 days of
work there Fisher obtained a withdrawal card from Local
50, probably in order to save paying an initiation fee to
Local 84. (See 142 NLRB 233 at 236 fn. 3.) When the strike
at the Bronx plant ended, less than 2 weeks after Fisher
obtained his withdrawal card from Local 50, the employer
wanted to recall Fisher in accordance with his position on
the seniority roster. Local 50 objected to his recall on the
ground that Fisher, by taking a withdrawal card, had quit
his employment at the Bronx plant and had consequently
lost his seniority and his right to be recalled. Local 50's
position was based on a provision in its International union
constitution which stated: "A withdrawal card shall signify
that the member has voluntarily withdrawn from his local's
rolls of active members and has withdrawn from holding or
seeking employment within the work or geographic
jurisdiction of this International or his local union."
The Board, adopting the Trial Examiner's findings and
rationale , held that this provision had not been incorporat-
ed into the contract between Local 50 and Ward, under
which Fisher's seniority rights were estabi.shed.6 It
therefore held that Local 50 had caused Ward to refuse to
reinstate Fisher because he had obtained a withdrawal
card, thereby imposing a condition on his seniority which
was unwarranted under the contract. The union's purpose
was found to be to enforce as a condition of employment,
its constitutional provision that a member who obtained a
withdrawal card thereby withdrew "from holding or
seeking employment" within the union's jurisdiction, thus
encouraging employees to remain active members of the
union. The Board's decision was enforced in full, N. L. R. B.
v. Local 50, Bakery Workers, 339 F.2d 324 (C.A. 2).
The General Counsel, as noted previously, considers
Ward Baking as dispostive here. Local 18, however, relying
on a statement in the court's decision, at 328, that Fisher's
dues were current, would distinguish that case from this on
the ground that Schlifke was not current in his dues after he
received his withdrawal card.
It should be noted that the Board's decision in Ward
Baking does not mention whether Fisher continued to pay
dues to Local 50 after obtaining a withdrawal card from it,
nor does it rely in any way on his dues status. The
chronology of events makes it likely that he was current,
since he received his withdrawal card on October 29, and
would have been recalled shortly after November 8, if the
union had not forced the employer to refuse him
reinstatement . At most, he may have been late in paying his
November dues, since it is unlikely that Local 50 would
have granted him a withdrawal card at the end of October if
he was not then current. All this, however, is speculation.
The fact is that the Board based nothing and decided
nothing on Fisher's dues status as of November 8, when
Further, the Board in fn 2 of its decision , indicated that it did not
need to reach the issue of whether such a provision would be legal, if it
were a part of the contract
7 Hay's interpretation was probably based on article 13, sec 8 which
reads as follows " Members holding withdrawal cards shall be entitled to
Local 50 claimed that he was ineligible for recall because
receipt of a withdrawal card was tantamount to his quitting
his employment of Ward's Bronx plant.
The Board's decision in Ward Baking, as shaped by the
facts set out there, is binding on me . The determinative
facts in that case are precisely the same as here
Particularly, it must be noted, the contract between Local
18 and Trico does not incorporate into its seniority
provisions or elsewhere, the Union's constitutional qualifi-
cations on obtaining a withdrawal card. Under section 7(g)
of the contract, an employee with more than 5 years
seniority who was on layoff can lose his seniority only
under certain prescribed conditions, none of which were
present in Schlifke's case.
But even assuming , arguendo, merit to the Union's
contention that an employee on layoff must continue to pay
dues even after he obtains a withdrawal card in order to
protect his contractual seniority rights, I would still find
that Schhfke fully complied with the Union's own
constitutional requirements. It is at this point that article
13, sec. 6 of the Union's Laws becomes applicable. It
provides that a member who takes out a withdrawal card
upon leaving the trade and being current in his dues, (see
sec. I of article 13) and who returns to work within 6
months thereafter, has 30 days within which to pay up all
back dues and assessments to the local which issued him the
withdrawal card. (Emphasis supplied.) On meeting these
conditions, sec. 6 provides: "Member then retains his
membership previous to time of his withdrawal."
Schlifke met these requirements in full. He obtained his
withdrawal card at the end of March because he was
leaving the trade and was then current in his dues. Early in
July, when Trico wanted to recall him in accordance with
his seniority standing, pursuant to his contractual rights, he
had had his withdrawal card less than 6 months. He was,
however, not recalled then because of the Union's objection
but was recalled as of July 29, still within 6 months of the
receipt of his withdrawal card. On August 28, within 30
days of his recall, he surrendered his withdrawal card and
paid up his back dues in full . Thereupon, in accordance
with the last sentence of article 13, sec. 6, he was entitled to
retain his membership with all its rights and privileges as if
he had never been in withdrawal status. In effect, sec. 6
permits the payments of dues by members who are in
withdrawal status for less than 6 months, to be deferred
until they return to the trade. This is what Zaidel told
Schlifke when he inquired in March, and Schlifke was
entitled to rely on it. Hay's interpretation of the Union's
rules on withdrawal cards, that a member on withdrawal
thereby quits his job and leaves the Union was manifestly
erroneous under sec. 6.7 This is also the Union's contention,
that Schlifke by obtaining a withdrawal card intended to
leave the trade and his employment with Trico. However,
regardless of the relationship or consistency between secs. 6
and 8 of article 13, it is clear that the Union' s internal rules
as to the effect of withdrawal cards was not incorporated
into the contract, and they cannot affect Schlifke's seniority
rights thereunder.
no benefits under these laws and shall not participate in the insurance plan,
but shall have only the right to reinstatement without initiation fee
provided such member has properly complied with the provisions of these
laws "
TRICO PRODUCTS CORP
Thus, to summarize the foregoing, even if it were essential
for Schlifke in order to retain his seniority while on
withdrawal, to tender the periodic dues uniformly required
as a condition of retaining membership, he satisfied that
obligation by satisfying the Union's own provision that the
tender of dues could be deferred if the withdrawal status
was terminated within 6 months, provided all back dues
were then paid up within 30 days thereafter.
I therefore find that the Union caused Trico on or about
July 1 to deny Schlifke reinstatement because of the
presumed loss of his seniority, and that the Union thereby
violated Section 8(b)(2) and (1)(A) of the Act.
2. The alleged violations of Section
8(a)(3) and (1)
Section 8(a)(3), which is closely parallel to Section
8(b)(2), provides that it is an unfair labor practice for an
employer to discriminate in regard to hire or tenure of
employment to encourage or discourage union member-
ship, provided that nothing in the Act shall preclude an
employer from entering into a union-security agreement
satisfying prescribed conditions, and
Provided further, That no employer shall justify any
discrimination against an employee for nonmembership
in a labor organization . . . . (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.
The written notification which the Company received
from the Union about July 1 (G.C. Exh. 5) requested
Schlifke's discharge, pursuant to the union-security
provisions of their contract, because he had withdrawn
from the Union. Schlifke had then been in layoff status for
more than 6 months and the Company had no information
as to whether he had paid his dues for all or part of that
period.8 I think it was entitled to rely on the Union's
representation that Schlifke had withdrawn from the
Union, without inquiring into what form the withdrawal
had taken, since such an inquiry would have required an
interpretation of various sections of article 13 of the
Union's Laws. I find that as of July 1, the Company had no
reasonable grounds to believe that Schlifke's membership
had been terminated for reasons other than his failure to
tender his dues. Furthermore, when Schlifke phoned the
Company's personnel office to find out why his recall had
been canceled, he did not tell the company official what
Zaidel had told him about his right under article 13, sec. 6
to retain his seniority in the Union if he returned to work
within 6 months of obtaining a withdrawal card. Thus,
Schlifke did nothing to put the Company on notice that
payment of dues for that period could be deferred under
the Union's own rules. At no time before Schlifke filed his
charge and the Board's Regional Office began its
investigation, did the Company have any reasonable
grounds for suspecting that the Union's notification to it of
8 1 do not believe that the Company should be held responsible for
failing to decide the legal question, which in my opinion is still unsettled,
whether Schlifke could lawfully be discharged for failing to pay union dues
247
Schlifke's dues delinquency might be erroneous under the
Union's own rules.9 When the investigation revealed the
basis for the Union's demand for denying Schlifke
reinstatement, the Company promptly reversed itself and
recalled Schlifke over the Union's continuing objection. I
find, accordingly, that the Respondent Employer did not
violate Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the operations of Trico
Products Corporation 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 that Respondent Union engaged in unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
As I have found that Respondent Union caused Trico
Products Corporation to refuse to recall Ronald H. Schlifke
from layoff for reasons other than failure to pay periodic
dues and initiation fees within the meaning of the proviso to
Section 8(a)(3) of the Act , I shall recommend that
Respondent Union be ordered to notify Trico, in writing,
with a copy to Schlifke , that it has no objection to his
reinstatement and his continued employment , without
prejudice to his seniority or other rights and privileges.
As I have found that Respondent Union is responsible
for the discrimination suffered by Schlifke, I will recom-
mend that it make him whole for any loss of pay 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 would have earned as wages from July 6, to July 29,
1970, less interim earnings, and in a manner consistent with
the Board policies set out in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
CONCLUSIONS OF LAW
1. Trico Products Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and 2(7) of
the Act.
2. Metal Polishers, Buffers , Platers and Helpers Inter-
national Union, Local No. 18, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By causing the Company to discriminate against
Schlifke, the Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b)(2)
and 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
during an extended layoff.
9 Associated Transport, Inc, 169 NLRB No 164. Cf. Conductron
Corporation 183 NLRB No. 54
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 2(6) and (7) of the
Act.
5. The company has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 10
Respondent, Metal Polishers, Buffers, Platers and
Helpers International Union, Local No. 18, AFL-CIO, and
its officers, representatives, and agents, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Trico Products
Corporation to discriminate against employees, except to
the extent permitted by the proviso to Section 8(a)(3) of the
Act, as amended by the Labor Management Reporting and
Disclosure Act of 1959.
(b) In any like or related manner restraining or coercing
employees of Tnco Products Corporation in the exercise of
the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make Ronald H. Schlifke whole in the manner set
forth in the section above entitled "The Remedy."
(b) Notify Trico Products Corporation, in writing, that it
withdraws its objections to Schlifke's reinstatement and
continued employment, and furnish Schlifke with a copy of
such notification.
(c) Post at its offices, copies of the attached notice
marked "Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 3, after being
duly signed by a representative of Respondent Union, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
members are customarily displayed. Reasonable steps shall
be taken by Respondent Union to ensure that said notices
are not altered, defaced, or covered by any other material.
These notices shall be posted by Trico Products Corpora-
tion, if willing, at places where notices to its employees are
customarily posted.
(d) Notify the Regional Director of Region 3, in writing,
within 20 days from the date of the receipt of this decision,
what steps Respondent Union has taken to comply
herewith. i2
IT IS FURTHER recommended that the allegations of the
complaint regarding any violation of the Act by Respon-
dent Employer be dismissed in their entirety.
10 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes.
11 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
12 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 3 , in wasting, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Trico
Products Corporation to discriminate against Ronald
H. Schlifke or any other employee in violation of
Section 8(a)(3) of the Act as modified by the
Labor-Management Reporting and Disclosure Act of
1959.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL notify Trico Products Corporation in
writing that we withdraw our objections to the
reinstatement and continued employment of Ronald H.
Schlifke, and we will furnish him with a copy of such
notification.
WE WILL make Ronald H. Schlifke whole for any loss
of earnings suffered because of the discrimination
against him.
METAL POLISHERS, BUFFERS,
PLATERS AND HELPERS
INTERNATIONAL UNION,
LOCAL No. 18, AFL-CIO
Labor Organization
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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 or compliance with
its provisions, may be directed to the Board's Office,
Fourth Floor, 120 Building, 120 Delaware Avenue, Buffalo,
New York 14202, Telephone 716-842-3100.