Intl Union of Dist. 50, UMW

National Labor Relations Board - Board Decisions

Oct 8, 1968

173 N.L.R.B. 87 (N.L.R.B. 1968)

INTL UNION
International Union of District 50, and Local Union
No. 14029, International Union of District 50,
United Mine Workers of America ' (Ruberoid
Company, a Division of General Aniline and Film
Corporation ) and George Haberle, an Individual.
Case 2-CB-4560
October 8, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 19, 1968, Trial Examiner Wellington A.
Gillis issued his Decision in the above-entitled pro-
ceeding, finding that the Respondents had engaged in
and were engaging in certain unfair labor practices
and recommending that they cease and desist there-
from and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. Thereafter,
the Respondent International 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, as modified below.
1. The Trial Examiner found, and we agree, that
the Respondents violated Section 8(b)(1)(A) of the
Act by threatening employees with discharge or with
loss of retroactive contract benefits if they refused to
sign an authorization for checkoff of dues, and by
requiring the retroactive payment of dues for a period
prior to the signing of the union-security contract,
when no obligation to maintain membership existed.'
While the Trial Examiner further concluded that the
Respondents violated Section 8(b)(2) by causing the
Company to make retroactive dues deductions and to
make current deductions pursuant to coercively ob-
tained checkoff authorizations, we find it unnecces-
1 Hereinafter referred to jointly as the Respondents , and separately as
the Respondent International and the Respondent Local.
2 We also agree with the Trial Examiner 's observation , in his footnote
23, that even if, as claimed by the Respondents , there had been a vote by
the membership at the April 9 Union meeting in which a majority of the
membership approved the retroactive dues payment , it would not serve as
a defense or require a different finding. For , retroactive payment for a
period during which membership was not legally compulsory is a
173 NLRB No. 20
OF DIST. 50, UMW 87
sary to consider or pass on this holding since it cannot
affect the scope of the remedy.
2. The Trial Examiner found, in addition, that
where a dual-purpose checkoff card, such as was used
here,' is the sole means by which an employee may
obtain union membership under a union-security
,contract, its use is illegal. Therefore, as part of the
remedy which he deemed proper, he recommended
that both the Respondent International and the
Respondent Local be required to cease and desist
from further use of this card in connection with the
employees of this or any other Employer with whom
they have a union-security contract. The Respondent
International argues that the hearing in the instant
case was limited to the issues herein, and the
Recommended Order goes beyond the scope of the
matters at issue. Further, it asserts that the card is not
illegal on its face and therefore its use cannot be
condemned unless the record establishes that the card
was utilized in an improper or illegal manner.
It is apparent from the Trial Examiner's analysis
that he concluded, and properly so, that in the
circumstances here the employees were given no
opportunity to comply with the union-security clause
and join the Union unless they signed the card which
authorized the deduction of dues. Accordingly, an
employee had no alternative and no choice but to
authorize the checkoff or lose his job, and hence its
use was coercive. The essence of this finding is that
each employee has a right to sign or not to sign a
checkoff authorization4 and he must be given the
opportunity to decide this for himself. Therefore,
where only the dual-purpose card is available to an
employee who wishes to comply with his obligation
under a union-security clause, it deprives the em-
ployee of his right to select the method by which he
will pay his periodic dues to the Union. If this same
dual-purpose card were offered with the option to
cross out the checkoff authorization or were sub-
mitted along with another which omitted the check-
off authorization and each employee had his
uncoerced choice as to the manner in which he would
sign, it seems clear that no violation would be found.'
Therefore, the remedial order should provide that the
Respondents cease and desist from using such a
dual-purpose card unless it is made clear to employees
that they have an alternative means of applying for
membership without authorizing a checkoff, and in
adopting the Trial Examiner's Recommended Order,
we shall amend the relevant paragraph in this respect.
voluntary decision to be made by each individual employee, and majority
approval could not negate the statutory right of each dissenting member
to decide for himself whether or not to make such retroactive payment.
3 The language of the card is set forth in full in Appendix A to the Trial
Examiner 's Decision Briefly, the card contains two paragraphs , the first
requesting and accepting membership , and the second authorizing the
employer to deduct amounts of money due to the Union
4 American Screw Company , 122 NLRB 485 at 489.
5 E.g., Simmons Company, 150 NLRB 709, 711-712.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We note, further, that the Trial Examiner, in
ordering reimbursement of the unlawfully compelled
retroactive dues payments, failed to order that such
repayment include interest at 6 percent, in accor-
dance with Board policy set out in Isis Plumbing &
Heating Co , 138 NLRB 716. Therefore, in computing
the amounts due pursuant to the Recommended
Order, interest in this amount shall be included.
In all other respects we shall adopt the remedial
order recommended by 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 Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent Inter-
national Union of District 50 and Local Union No.
14029, International Union of District 50, United
Mine Workers of America, their officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified:
1. Delete paragraph 1(e) and substitute the follow-
mg therefor:
"(e) Using a card entitled "Membership Applica-
tion and Check-off Authorization," or any similar
dual-purpose card which serves as both a union
membership application and as a dues checkoff
authorization in securing the membership of any
employees covered by a collective-bargaining contract
under which employees are to become or remain
union members as a condition of employment, unless
such employees are clearly and unequivocally offered
an alternative means of applying for membership
without authorizing a checkoff."
2. In paragraph 1(f), delete the commas and the
phrase "or in any other manner" following the phrase
"In any like or related manner."
3. Delete the third indented paragraph of the
notice attached to the Trial Examiner's Decision and
substitute the following:
WE WILL no longer use a card entitled "Member-
ship Application and Checkoff Authorization," or
any similar dual-purpose card which serves as both
a union-membership application and as a dues-
checkoff authorization in securing the membership
of any employees covered by a collective-
bargaining contract under which employees are
required to become or remain union members as a
condition of employment, unless such employees
are clearly and unequivocally offered an alternative
means of applying for membership without autho-
rizing a checkoff.
4. Delete the periods in the fifth and sixth indented
paragraphs of the Notice attached to the Trial
Examiner's Decision and add to each of them the
following: "with interest thereon at 6 percent per
annum."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: Upon a charge,
and an amended charge, filed on October 24, 1967, respec-
tively, by George Haberle, an individual, the General Counsel
of the National Labor Relations Board issued a complaint on
December 28, 1967, against International Union of District 50
and Local Union No. 14029, International Union of Distract
50, United Mine Workers of America, hereinafter referred to
jointly as the Respondent, and separately as the International
and Local No. 14029, respectively, alleging that the Respon-
dent has engaged in certain unfair labor practices in violation
of Sections 8(b) (1) (A) and (2) and 2(6) and (7) of the
National Labor Relations Act, as amended (61 Stat. 136),
hereinafter referred to as the Act. Thereafter, the Respondent
filed a timely answer to the complaint denying the commission
of any unfair labor practices.
Pursuant to notice, a hearing on the complaint, as amended
at the hearing, was held before me on February 8 and 9 and
March 4, 1968, at Newburgh, New York, at which hearing all
parties were represented by counsel and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence pertinent to the issues, and to
engage in argument. Subsequent to the close of the hearing, a
timely brief was filed by counsel for the Respondent
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor on the witness
stand, and upon substantial, reliable evidence "considered
along with the consistency and inherent probability of
testimony" (Universal Camera Corp. v N.L.R.B., 340 U. S
474, 496), 1 make the following:
FINDINGS AND CONCLUSIONS
1. COMMERCE
The Ruberoid Company, a division of General Aniline and
Film Corporation, a Delaware corporation, hereinafter referred
to as Ruberoid or the Company, maintains its office and place
of business at Vails Gate, New York, where it is engaged in the
manufacture, sale and distribution of tiles, roofing and related
products. During the past calendar year, this Company
purchased and caused to be transported to its plant in Vails
Gate, tiles, roofing, and other goods and materials valued in
excess of $50,000, of which amount goods and materials
valued in excess of $50,000, were transported and delivered to
its plant in interstate commerce directly from States other
than the State of New York. During the same period, this
Company manufactured, sold and distributed at its plant,
products valued in excess of $50,000, of which amount
products valued in excess of $50,000 were shipped from said
plant in interstate commerce directly to States other than the
State of New York. The parties agree, and I find, that this
Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
INTL. UNION OF DIST. 50, UMW 89
II THE LABOR ORGANIZATIONS INVOLVED
It is undisputed and I find that International Union of
District 50, United Mine Workers of America, and Local Union
No. 14029, International Union of District 50, United Mine
Workers of America, are labor organizations within the
meaning of Section 2(5) of the Act.
employees covered by this Agreement and hired on or after
its effective or execution date, whichever is the later, shall
on the thirty-first day following the beginning of such
employment become and remain members in good standing
in the Union.
In addition to the union -secunty clause , the collective-
bargaining agreement also contained the following check-off
provision:
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether, on various dates during the months of April,
May, and June 1967, the Respondent's officers threatened
employees with discharge or loss of retroactive contract
benefits if they failed to sign check-off authorization cards (a)
for the deduction of union dues, and (b) for the deduction of
retroactive union dues for a 3-month period during which
there was no union-secunty contract in existence, thereby
unlawfully inducing the employees to sign such check-off
authorizations in violation of Section 8(b) (1) (A) of the Act.
2. Whether, assuming that check-off authorizations were
obtained from employees in such manner, by causing the
Company to make dues deductions, including retroactive dues
deductions, based upon such authorizations, the Respondent
violated Section 8(b) (2) of the Act.
B. The Facts
Prefatory Statement
On January 5, 1967,' shortly after the expiration of a
collective-bargaining contract with another union and an
election at the Ruberoid plant, District 50 was certified as the
bargaining representative for a unit of production and mainte-
nance employees employed by the Company Thereafter, on or
ahout February 3, bargaining commenced between the Union
and the Company. On April 9, at a general union membership
meeting called for the specific purpose, the employees ratified
the terms of a proposed collective-bargaining agreement. On
April 21, this contract was executed by officials of the
Company and representatives of District 50 and of Local
Union No. 14029. The contract, of 3-year duration, was made
retroactively effective from January 1, 1967, and contained,
inter alia, the following valid union-secunty clause requiring
membership in the Union as a condition of employment.
Union Membership. Section 3.1 It shall be a condition of
employment that all employees of the Company covered by
this Agreement who are members of the Union in good
standing on the-effect ve_or execution date of this Agree-
ment, whichever is the later, shall remain members in good
standing and those who are not members on the effective or
execution date of this Agreement, whichever is the later,
shall on the thirty-first day following the effective or
execution date of this Agreement, whichever is the later,
become and remain members in good standing in the Union.
It shall also be a condition of employment that all
I Unless otherwise specified , all dates refer to the year 1967
Check-off Section 3.2 Upon the receipt of a written
assignment and authorization signed by the employees
which form shall meet the requirements of Section 302(c)
of the Labor Management Relations Act of 1947, the
Company will deduct each month, from the wages due
employees , such initiation fees, membership dues and legal
assessments in amounts designated by the Union. The
Company will make payment of said sum on or before the
fifteenth (15th) day of each month to the International
Union of District 50, United Mine Workers of America,
1435 "K" Street, N.W . Washington , D.C. 20005. Said
deductions will be made from an employee 's first paycheck
in each calendar month for initiation fees and dues.
Check-off authorization cards will be submitted to the
Company through the Financial Secretary -Treasurer of the
Local Union and such submission will not be made more
than twice each month.
A check-off list shall accompany the deductions setting
forth the name and the amount of dues, initiation fees and
a copy of said deduction list shall be forwarded to the
Regional Office and the Fmancial Secretary of the local
union. The said hst shall also contain the names of
employees from whom there were no deductions made and
the respective reasons.
During this early spring period, the Union was engaged in
obtaining employee signatures on a dual -purpose card entitled
"Membership Application and Check-Off Authorization." This
card contains two paragraphs , the first providing for member-
ship in District 50, and the second, authorizing the employer
to deduct from wages and to turn over to District 50 amounts
of money lawfully required as a condition of obtaining and
maintaining membership in good standing . These two para-
graphs are followed by blank spaces for the employee's
signature and other data.2
By letter dated April 27, accompanied by signed employee
check-off authorization cards of the type noted , the Union
requested that the Company make dues deductions from
employee pay at the rate of 4 dollars per month retroactively
effective as of February 1 The letter from District 50's
Regional Director, Charles Retty, addressed to Plant Manager
Robert Van Buren, read as follows-
Dear Sir.
Enclosed please find a partial list of employees, together
with Check-Off Authorizations, authorizing the deduction
of Union Fees. This is in line with our recently negotiated
Labor Agreement
The monthly dues are Four Dollars ($4 00) per month
and are to be deducted beginning with the month of
February, 1967.
2 Because of the importance of this card to the issues in this case, it has
been reproduced in full and attached hereto as appendix A.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For all new employees hired after April 21, 1967, there
will be an Initiation Fee of $25.00 in addition to the $4 00
per month Union dues.
Your cooperation in this matter will be appreciated.
Very Truly yours,
CHARLES J. RETTY
Regional Director.
Thereafter, on or about May 5, pursuant to the Union's
request, the Company deducted from retroactive employee
paychecks retroactive union dues in the amount of $12 for the
months of February, March, and April for 173 employees 3
Thus in making these dues deductions on May 5, the
Company did so after having received from the Union
check-off authorization cards from every employee in its
employ, with the exception of one, covered under the
collective-bargaining contract.
April 9 Meeting
Because a portion of the Respondent's defense rests upon
matters pertaining to the 2 p.m., membership meeting at the
American Legion Hall on April 9, which had been called for
the purpose of ratifying the proposed contract, considerable
testimony was elicited with respect to topics discussed and the
vote that was taken An hour or so prior to this meeting, an
Executive Board meeting was held, attended by International
officials, Retty, William Pohmer, and Joseph Gentile, by Local
officers Isam Brown, George Baptist, Robert Snowman, and
Charles Smith, and by six or seven union negotiating commit-
tee members. At this meeting the agenda for the membership
meeting was discussed, the contract negotiations with the
Company were reviewed, and then the question arose as to the
financial obligations of the members At this point Retty
expressed his position to the effect that since the monetary
benefits were to be retroactively effective to January 1, and
since "we have performed many services for the employees
from January 1," it was only fair that the monthly dues should
begin as of February 1. Without dissent, it was agreed by all
present that the dues would go back to February, and Retty
was instructed by the Executive Board to inform the member-
ship of this decision
At the membership meeting that followed,4 signatures on
check-off slips were solicited by men standing at the door as
the employees entered, as well as when they left. The meeting
was opened by Local Union President Brown, who then turned
it over to International Representative Pohmer Pohmer
reviewed for the membership what had transpired over the 13
negotiation sessions with the Company and explained the
highlights of the final contract proposal. When Pohmer
finished, he turned the meeting over to Retty who told the
membership that the Executive Committee had approved
union dues going back to February 1, and that their dues
would be made retroactive to February 1. Retty also explained
that dues would be 4 dollars per month, and that there would
be no initiation fee for employees who had been members of
the former union.5 At some point, each member of the
negotiating committee got up and said a few words concerning
the negotiations There followed a rather lengthy question and
answer period, during which no questions or objections were
raised pertaining to the retroactive application of the dues At
the conclusion of this period Retty attempted to take a hand
vote, but due to confusion, decided on a "division of the
house" procedure. The vote resulted in 96 affirmative votes
and 28 against 6
There exists a real and important conflict in testimony as to
the purpose of the vote While it is conceded that only one
vote was taken, and that that involved the acceptance or
rejection of the proposed contract, Pohmer, Retty, and
Gentile, the three International officials, assert that the
membership was also voting on the question of the retroactive
dues, that it was presented to the membership as a package
deal On the other hand, the testimony of a number of
employee witnesses, including local union officer, George
Baptist, indicate that the vote was taken solely to reject or
accept the contract. I find the latter to have been the case.
First, I am inclined to give credence to the testimony of these
employee witnesses, each of whom impressed me with his
demeanor on the witness stand,7 over that of Pohmer, Retty,
and Gentile. Pohmer, on direct examination, testified that the
vote was a joint proposition involving both dues and the
contract. In his pretrial affidavit, however, Pohmer did not
mention dues, and stated that "on April 9, the membership
voted to ratify the contract." Pohmer's explanation on
cross-examination for not mentioning the dues aspect of the
vote was completely unconvincing, namely, that the Board
agent told him at the time that there was nothing to the case
against the Union and that it would be thrown out Retty, too,
was not convincing on this point, admitting that his instruc-
tions from the Executive Board were to "tell" the employees
of the retroactive dues decision and testifying that "I was the
one that told them." Retty, who further admitted that,
because no one raised a question about paying retroactive dues
when he announced it, he assumed that there was no objection
to it, avoided the question on cross-examination as to why, in
view of this, he felt it necessary to include the matter in the
contract vote. Gentile's credibility suffered at the very outset
of his taking the stand by his flippant, smart aleck remarks,
reflecting a lack of respect for the proceeding. Secondly, at the
earlier Executive Board meeting, in directing Retty to "in-
form" the employees of the decision of the Executive Board,
there was no suggestion or mention made that Retty should
put the matter to a membership vote. Thus, none having been
3 in addition to the 173 employees , the Company also deducted 9
dollars dues for one employee who commenced work late in the month of
February and the 4 -dollar April dues of six employees who appear to have
commenced their employment toward the latter part of March.
4 While the facts are not in dispute as to the matters relating to the
Executive Board meeting , because of the time interval, involved there is
understandably a conflict in testimony , for the most part minor, with
respect to portions of the membership meeting With one exception
hereafter discussed , the following factual recitation is based upon a
synthesis of the testimony proffered by some 13 witnesses who were
present.
5 From the record it appears that under a union -security agreement, all
employees had been members of the former union.
6 Although this meeting was referred to throughout as a membership
meeting, it appears that it was open to all employees , whether or not they
had signed up with the Union, and that all were permitted to take part in
the vote
7 These included , in addition to Baptist , who was called by the General
Counsel as a 43(b) witness, Walter Lake, George Haberle, Edward Kodara,
James Atkins, and Donald Lake.
INTL. UNION OF DIST. 50, UMW
contemplated, I find it difficult to believe that Retty unneces-
sarily would take it upon himself to incorporate the matter, to
which there had been not one objection raised, with the vote
on the proposed contract, with respect to which a large
number of questions had been asked. Based upon the record as
a whole, I find that the decision to make the 4 dollar monthly
dues retroactive to February 1 was made by the International
officers with the concurrance of the Local's officers, that such
was announced to the employees attending the April 9 meeting
as a fait accompli, and that the proposal put to the employees
at the meeting was confined to their acceptance or rejection of
the contract.
Alleged Threats
The thrust of the alleged violation herein is predicated upon
the conduct of Respondent's officials with respect to obtaining
employee signatures on check-off authorization cards follow-
ing the April 9 membership meeting.8 Throughout the
following factual recitation in this regard, in each instance the
card in question is the dual purpose card discussed above and
set forth in appendix A, the only card used by the Union
herein
Fourteen-year veteran employee, Donald Lake, testified
without contradiction that on April 9, he approached Union
Officer Baptist in the shop and told him that there were
rumors around the shop that employees would lose their jobs
if they did not sign check-off slips, and asked Baptist if they
were true Baptist replied that they were right. Lake did not
sign a card at this time, but 3 weeks later, he asked Baptist for
a card and signed it.9
Two or three days after the April 9 union meeting,
employee Edward Kodara, a 16-year veteran with the Employ-
er, was approached by President Isam Brown who told him "to
sign this slip, check-off slip because I [sic] won't sign in 30
days I will be out a job." Kodara testified that when he told
Brown that he did not think he would sign at that time, Brown
advised Kodara that "your job depends on it. You won't sign
it. You got 30 days." 10
Employee Orin Cox testified that during a lunch room
conversation before the contract was signed, Brown asked him
to sign the "union dues card." When Cox refused, Brown said
he "would be sorry," and that he "would lose his job if he did
not sign the card." According to Cox, he heard Brown and
Baptist on several occasions, tell employees in the lunch room
they would not get retroactive backpay and would lose their
jobs if they did not sign the slip. Cox later signed a check-off
card.' 1
According to the unrefuted testimony of employee James
Gogerty, in his 22nd year with the Company, on one occasion
in March or April, which I find to have been the latter, while
engaged in a conversation with three or four employees in the
company lunch room, in reply to a question of what would
8 An undetermined number of employees signed such cards volun-
tarily with no apparent objection when solicited to do so at the April 9
meeting
9 As April 9 falls on a Sunday, I assume that Lake may have been a day
or two off on his testimony. Nevertheless , I find that this occurred about
this time , which was before the contract was executed.
10 Isam Brown, no longer president of Local Union No. 14029, did
not testify in this proceeding and accordingly , any statements attri-
buted to him throughout this recitation remain unrefuted.
91
happen if the employees did not sign the check-off slip, Brown
answered, "Well, you like your jobs, don't you." When this
was followed with a more direct question of whether they
would be fired if they refused to sign check-off authorization
cards, Brown repeated, "you like your jobs, don't you "
Gogerty subsequently signed a check-off authorization slip. In
addition to Cox and Gogerty, Walter Lake also testified that,
on one occasion in April, Brown told the men in the lunch
room to "sign the slip within 30 days or lose their job."
Michael Marrota, an employee with 19 years' tenure with
the Employer, also testified that on one occasion before
signing a check-off card, which he did on April 22, Brown told
a few employees, including himself that they had to sign a card
within 30 days or they would not get their backpay.12
On April 21, a meeting was held in the company conference
room, primarily for the purpose of executing the collective-
bargaining contract previously ratified by the membership
This meeting was attended by International Officials Pohmer
and Retty, by all of the local union officers, and by several
employee members of the bargaining committee. During the
course of the meeting, but after the signing formalities had
been completed, according to the unrefuted testimony of
George Haberle, a member of the bargaining committee and a
17-year veteran with the Company, both Pohmer and Retty
stressed the point that, "the boys would have to get going on
these here check-off slips to get them signed," that "those that
didn't sign would be given 30 days and would possibly be
fired," and "those that didn't would lose their jobs."
Employee Richard Bailey, like Haberle, a member of the
employee bargaining committee, testified that at this meeting,
after he signed a card proffered by Pohmer and in reply to his
question of what would happen to employees who did not sign
the card, Pohmer replied that they had 30 days to make up
their minds, "otherwise they are out." Pohmer's testimony in
this regard indicates that, in reply to Bailey's question, he told
Bailey that as of the date of the contract, employees had 30
days within which to join, and that "we would like to try, if
possible, to get check-off authorization for the convenience of
the man," to protect him from inadvertent dues delinquency.
Primarily for reasons relating to Pohmer's veracity, heretofore
noted, I credit Bailey's version of the conversation.
Employee Joseph Woody, another employee member of the
bargaining committee, and a 13-year employee with the
Company, testified that at this meeting, President Isam Brown
told Pohmer that they were having trouble with some of the
fellows refusing to sign check-off slips, and asked him what
could be done about it or what would happen to the fellow
who did not sign. Pohmer allegedly replied that, after 30 days
his job would be terminated.
Following the meeting, George Baptist, recording secretary
for Local 14029, approached employee Walter Lake, a 19-year
veteran with the Company, with a pad of authorization cards,
saying that he was directed by the International officials "to
tell the men to sign these slips or within 30 days they would
11 While Cox, as a witness, left much to be desired, having had his
recollection refreshed on crucial matters by referring to his pre-trial
affidavit, in view of the fact that additional credible testimony is
corroborative generally of his version of the lunch room conversation, I
give it credence.
12 It should be noted, that with the possible exception of the last
incident , the above threats by Brown and Baptist involving check-off slips
appear to have occurred before the April 21 execution of the
union-security contract and, therefore , before there was even a
requirement that employees join the Union within 30 days.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lose their jobs." Baptist then told Lake "sign the slip,
check-off slip within 30 days or lose your job." While the
quotations are taken from the testimony of Lake, Baptist
freely admitted that lie had said this to Lake and that it was
based upon Retty's statement made to other union officials
and employee members of the bargaining committee at the
close of the meeting that the check-off cards had to be signed
within 30 days or the job of the employee refusing to sign
would be terminated 13
The following day, April 22, Marrota went to Robert
Snowman, secretary-treasurer of Local 14029, and asked him
if he had to sign the check-off slip now that the Union was in,
and received a reply that he had to sign within 30 days. When
Marrota repeated Snowman's answer, saying "you have to sign
it for 30 days or else?" Sanner replied, "yes." Marrota, afraid
of losing his job, then signed a card and gave it to Snowman.
On April 24, 3 days after the meeting in the company
conference room, according to the credited and uncontradic-
ted testimony of Kodara, he talked with Baptist, and asked
him if he would really lose his job if he did not sign the
check-off card within 30 days. Baptist replied "Yes." We have
been told by Mr Pohmer if the men won't sign the check-off
slip then [sic] lose the job." Kodara signed. On this same date,
April 24, in the company lunch room, Brown told 21-year
employee James Atkins, who twice previously had refused to
sign a check-off card, that if he did not sign the card within 30
days he would be out of a job Atkins then signed the card.
According to the credited and unrefuted testimony of
employee Vincent Cangilosi, 15 years with the Company, he
signed a card on April 25 because Brown told him everybody
signed a card and if he did not sign one within 30 days he
would lose his job. Employee Allen Oldham, 9 years with
Ruberoid, testified without contradiction that he signed a card
on April 26 after Brown told him that he had to sign it in
order to get backpay. Ten-year veteran Vincent Mastrella
testified that, after twice refusing Brown's request to sign a
card, Brown approached him again with a card on April 26 and
told him to "sign or else." When asked by Mastrella "else
what?", Brown answered, "or else you are going to be out."
Mastrella signed
Employee Richard Sanner testified that some time prior to
the employees' receiving their retroactive paychecks, which
would place it in late April or early May, Brown approached
him in the locker room and told him that he "had to sign this
checkoff slip." When Sanner asked why, Brown said that if he
did not, he would be fired and would not receive his backpay.
Sanner then signed the check-off card. The following day,
having heard employees the night before discussing 3 months'
back dues, Sanner went to Brown and asked him if they had
to pay 3 months' back dues. Brown replied in the affirmative,
to which Sanner said that he read the check-off slip and it did
not say anything about back dues. Brown made no reply.
Finally, Walter Lake testified that in June, Pohmer and
Gentile, who were visiting the plant, called him into the
13 Based in part upon the testimony of Baptist , Walter Lake, Haberle,
Bailey, and Woody, which I find to be credible , I find the testimonial
attempts of Pohmer and of Retty to tie these threats in with the
membership requirement of the union-security contract rather than to the
check-off authorizations to be unpersuasive , and I do not credit their
testimony in this regard.
14 I do not credit Pohmer's testimony to the extent that it conflicts
with that of Lake. Lake, to this day, is the only employee still working at
the plant who has not signed a check-off, and in fact, has not even joined
the Union.
lunchroom and suggested that he get on the bandwagon with
the rest of the boys and sign the check-off slip. When Lake
refused, Gentile allegedly said that, "we insist on you signing "
Lake then asked whether, if he signed, would he have to pay
dues back to February, and was told that he would. Gentile
was not questioned on this incident, but Pohmer testified that
on this occasion he talked with Lake, explaining the benefits
accruing from the contract Pohmer admitted requesting Lake
to sign an application, telling him that he would "like to get
the place all on a check-off," but that when Lake refused,
there was nothing further he could do about it.1 4
Analysis and Conclusions
The General Counsel contends that, in violation of Section
8(b)(1)(A), employees were coerced into signing check-off
authorization slips by threats of losing their jobs and retro-
active pay benefits, that, by the same threatening conduct,
employees were coerced into signing check-off slips authoriz-
ing retroactive dues deductions during a period when no
union-security agreement was in effect and therefore during a
period when there existed no contractual obligation to do so as
a condition of employment General Counsel further asserts
that Respondents violated Section 8(b)(2) by causing the
Company to make dues deductions and retroactive dues
deductions based upon coercively obtained check-off authori-
zation cards. The Respondent, in denying the commission of
any violation, asserts that there were no threats made which
would constitute violation of Section 8(b)(1)(A), in effect,
arguing that the statements attributed to Respondent's offi-
cials were geared to the valid 30-day union membership
requirement rather than to the check-off authorization, and
that at the April 9 meeting the members voted to pay 3
months' retroactive dues, which constitutes a permissive
voluntary act by the members, validating the Union's action in
subsequently requesting the Company to make the retroactive
dues deduction
Treating first with each of the two premises upon which the
Respondent's position relies, I have already found that the
statements made to employees by Respondent's officials,
Pohmer, Retty, Baptist, and Brown, during this period, were
directed to the signing of check-off authorizations and not to
the 30-day membership requirement contained in the union-
security provisions of the collective- bargaining contract. On
the Respondent's second position , again, I have made the
finding, above, that the decision to make the dues requirement
retroactive to February 1, was made by the Respondent's
officials and announced to the members on April 9, with no
vote having been taken on the matter.' 5 Furthermore, the
evidence in this case clearly supports a finding that the
Company's employees, generally, were led to believe, contrary
to the fact, that they were required to sign a check-off
authorization in order to keep their job, and that the
leadership of both the International and the Local was
15 Belatedly, it would appear, the Respondent made a slight effort to
lead one to believe that the 3-month retroactive dues was in fact an
initiation fee. There is credible evidence throughout the record
establishing the fact that such was not the case and that, from the very
outset, no initiation fee for anyone who was employed prior to the
execution of the contract was contemplated. Even Union Officer Baptist
testified that during this period he was unaware of retroactive dues being
equated to a form of initiation fee.
INTL. UNION OF DIST . 50, UMW
responsible for creating this erroneous impression, both through
direct statements and answers to employee inquiries and through
the use of the dual-purpose card. 16 This, together with the
Respondent's announcement on April 9 concerning the 3-month
retroactive dues, requires the finding that in signing the
check-off, the employees were aware that they were authorizing
the deduction of monthly dues as well as retroactive dues from
their pay.' Coupling these findings with the threats of loss of
jobs and/or loss of contract benefits made by the Respondent's
officials in their attempts to secure check-off authorizations
from employees, as recited above, some of which were made
even before the contract was executed, the ulterior design of the
Respondent's action is inescapable 18
Turning briefly to the General Counsel's position, with
which I must wholeheartedly concur, under Section 7 of the
Act it is axiomatic that an employee has a right to sign or not
to sign a check-off authorization, whether there exists a
union-security membership requirement or not.' 9 Accord-
ingly, threatening employees with discharge or with loss of
contract benefits for refusing to sign a check-off authorization,
such as was the case here, clearly constitutes a violation of
Section 8(b)(1)(A) of the Act, and I so find. Furthermore, it is
also well-established that a union shop contract cannot be
retroactively applied as to require employees to pay union
dues during a period when there existed no contractual
obligation for them to do so as a condition of employment.'
In the Namm's, Inc., case the Board made it clear that "back
dues are plainly more than periodic dues or initiation fees that
could be lawfully imposed by a labor organization upon
employees covered by a union-security agreement as a con-
dition of obtaining membership in good standing." Thus, held
the Board, "the Union's requirement of back dues to achieve
membership in good standing, which the union shop agreement
made a condition of employment, necessarily conveyed the
implied threat to employees that they risk discharge.s2 r
Accordingly, I find that by requiring and coercing employees
to sign check-off authorizations for the deduction of retro-
active dues for the months of February, March, and April
1967, during which period no union shop contract existed, the
Respondent necessarily restrained and coerced employees in
the exercise of their rights guaranteed by Section 7 and
thereby violated Section 8(b)(1)(A) of the Act.22 It follows, I
find, that by causing the Company to make retroactive dues
deductions, and, in fact, any dues deductions from employees'
pay based upon coercively obtained check-off authorizations,
the Respondent violated Section 8(b)(2) of the Act.23
Apart from the rationale of the above, but directly related
thereto, it is apparent that the vehicle which enabled the
Respondent to accomplish that which it set out to do, namely,
16 As to the International , Baptist 's testimony suffices to hold the
International officials responsible for directing and imparting misinforma-
tion to employees , testimony that at the April 21 meeting Retty told
those present , including Local officers and employee members of the
bargaining committee , that the check -off cards had to be signed within 30
days or the job of the employee refusing to sign would be terminated.
17 That employees generally were aware of this fact does not
necessarily indicate that they were in agreement with it. Haberle's
testimony , in fact, reflects that , at one point at least , there was
considerable employee concern in this regard for a petition with some 92
employee signatures had been circulated to stop dues until an explanation
was forthcoming as to the retroactive dues requirement.
18 I deem it unnecessary to make specific findings of coercion with
respect to each incident alluded herein. While one or two of the statements
made by Respondent 's officials may not have amounted to threats perse,
93
to obtain check-off authorizations from all unit employees
and, thereby, to secure retroactive dues from all unit em-
ployees, was the dual-purpose "Membership Application And
Check-off Authorization Card." In signing this card, in
conformity with the membership acceptance of the first
paragraph, an employee agrees "to pay all reasonable amounts
of money lawfully required as a condition to obtain and
maintain membership in good standing." Pursuant to the
check-off authorization provision of the second paragraph, the
employee agrees to permit his employer to deduct from his
wages and turn over to the Union "all such amounts of money
above outlined and limited to the amounts provided in" the
collective-bargaining contract. A perusal of the contract,
including the membership requirement, reflects that no speci-
fic amounts of money are set forth. The check-off provision of
the contract, however, states in part that, upon receipt of an
employee check-off authorization, the Company will deduct
each month from wages, such initiation fees, membership dues
and legal assessments "in amounts designated by the Union."
Viewing this whole picture, it is readily apparent that the
Union has an employee at its mercy. For, under the valid
union-security contract, he is required to join the Union and to
remain a member of the union as a condition of employment.
Under the procedure here, the only way that he can comply
with the law and join the Union is to sign an application card
which, by reference to the contract, provides, additionally, for
the Company to check off dues from his pay "limited" to
amounts "designated by the Union." Thus, he has been given
no alternative and no choice but to sign this card if he wants to
keep his job. In so doing, he has been required to agree to
more than that to which he can lawfully be made to agree,
namely, to authorize a check-off. While arising in a different
context, and admittedly under quite distinguishable facts,
nevertheless, the practice here is not too far from that which
the Board long ago denounced in the Parker Brothers case.24
There, in a Section 8(a)(2) assistance situation, the contract
alone contained the unlawful ingredients by providing in part
that "the Company agrees that each new employee when hired
shall be presented with a printed form of application for
membership in the Union, which shall contain an authorization
for deduction from the employee's pay in the amount of his
initiation fee and monthly fees in the Union which form shall
be executed by the new employee ...... The coercion result-
ing from the Parker Brothers situation is not unlike that
inherent in the procedure adopted herein by the Respondent. I
find that where, as here, a dual-purpose check-off card alone is
used by a union to obtain union membership under a
union-security contract with an employer, its use is illegal
they, made in conjunction with the dual -purpose card , certainly were
coercive , and I so find.
19 American Screw Company, 122 NLRB 485 at 489.
20 Namm 's, Inc , 102 NLRB 466
21 In this regard, see also, the Eclipse Lumber Company, Inc., 95
NLRB 464; Colonie Fibre Co. v. N.L R.B., 163 F 2d 65 (C.A. 2),
New York Shipbuilding Corp, 89 NLRB 1446, and General Ameri-
can Transportation Corp., 90 NLRB 239.
22 See Local 140, Furniture Workers, 109 NLRB 326 at 327.
23 Even, contrary to the fact , had there been a membership vote on
April 9 in favor of the retroactive dues proposition , it would not, in my
opinion, have altered this finding, for the principle of Namm's, Inc., and
the other cited cases would still prevail.
24 Parker Brothers and Company, Inc., 101 NLRB 872
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 operation of Ruberoid
Company, a division of General Aniline and Film Corporation,
set forth 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
It having been found that the Respondents have engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act, it is recommended that the
Respondents cease and desist therefrom and that they take
certain affirmative action which is necessary to effectuate the
policies of the Act.
It has been found that the Respondents unlawfully coerced
employees into signing union check-off authorizations for the
deduction of dues and retroactive dues, the latter covering a
3-month period when there was no union-security contract in
existence. It has also been found that, based upon said
coercively obtained check-off authorizations, the Respondents
unlawfully caused the Company to make improper employee
dues deductions and retroactive dues deductions Therefore, it
is only fitting and just, and I recommend, that the Respon-
dents be made to reimburse employees for (a) any dues
checked off pursuant to coercively obtained check-off authori-
zations for any period prior to May 22, 1967, the cut-off date
when, under the union-security agreement, all employees who
were employed on the execution date of the contract were
legally required to submit dues to the Union, and (b) any
3-month retroactive dues checked off pursuant to coercively
obtained check-off authorizations or pursuant to any check-off
authorization which was signed by an employee who was led
to believe that he was required to make such payment as a
condition of continued employment.
These provisions are not intended to require the Respon-
dents to reimburse any employee who voluntarily wishes to
contribute to the Respondent the 3-month retroactive dues
payment. However, since it was the Respondents' act which
led employees generally to believe, contrary to the fact, that
they had to make this retroactive dues payment, in conjunc-
tion with the union-security provision of the contract, it rests
upon the tortfeasor "to disentangle the consequences for
which it was chargeable from those from which it was
immune."25 Accordingly, the burden rests upon the Respon-
dents to show, during the compliance stages of this proceeding
that any given employee voluntarily agrees to his 3-month
retroactive dues payment being retained by the Respondents
Questions concerning dues reimbursements to employees are
to be determined during these stages.
Furthermore, in view of the fact that the dual purpose card
used by the Respondents herein lent itself readily to the
unlawful obtaining of employee check-off authorizations, for
reasons set forth heretofore, I recommend, as a necessary
remedial course of action that the Respondents, International
Union of District 50, and Local Union No. 14029 of District
50, United Mine Workers, be required to cease and desist from
further use of this card, or any similar card, in their
relationship with employees of this Employer or any employer
with whom either has a union-security contractual relation-
ship under which employees are required to become and
remain union members as a condition of employment.
Because of the character and the scope of the unfair labor
practices engaged in by the Respondents, it is recommended
that the Respondent cease and desist from in any other
manner interfering with, restraining and coercing, employees in
the exercise of the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the
entire record in this case, I make the following-
CONCLUSIONS OF LAW
1 The Respondents, International Union of District 50,
and Local Union No 14029, International Union of District
50, United Mine Workers of America, are labor organizations
within the meaning of Section 2(5) of the Act
2 Ruberoid Company, a division of General Aniline and
Film Corporation is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3 By threatening employees with discharge and loss of
retroactive contract benefits if they failed to sign union
check-off authorizations for the deduction of union dues, the
Respondents engaged in, and are engaging in, unfair labor
practices within the meaning of Section 8(b)(1)(A) of the Act
4 By threatening employees with discharge and loss of
retroactive contract benefits if they failed to sign union
check-off authorization for the deduction of retroactive union
dues for a 3-month period during which there was no
union-security contract in existence, the Respondents engaged
in, and are engaging in, unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act
5. By causing Ruberoid Company to make dues deductions
from the pay of employees based upon coercively obtained
check-off authorizations the Respondents engaged in, and are
engaging in, unfair labor practices within the meaning of
Section 8(b)(2) of the Act
6 By causing Ruberoid Company to make retroactive dues
deductions from the pay of employees for a 3-month period
during which there was no union-security contract in exist-
ence, the Respondents engaged in, and are engaging in, unfair
labor practices within the meaning of Section 8(b)(2) of the
Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this matter,
it is recommended that International Union of District 50, and
Local Union No 14029, International Union of District 50,
United Mine Workers of America, their respective officers,
agents, and representatives, shall
1. Cease and desist from:
(a) Threatening employees with discharge and loss of
retroactive contract benefits if they fail to sign union check-off
authorizations for the deduction of dues.
25 N.L.R B v Remington Rand, Inc., 94 F 2d 862 (C A 2)
INTL. UNION OF DIST. 50, UMW 95
(b) Threatening employees with discharge and loss of
retroactive contract benefits if they fail to sign union check-off
authorizations for the deduction of retroactive dues for a
3-month period during which there was no union security-
contract in existence
(c) Giving effect to any check-off authorization cards
that were coercively obtained and causing the Ruberoid
Company to make dues deductions from the pay of employees
based upon such authorizations
(d) Causing the Ruberoid Company to make retroactive
dues deductions from the pay of employees for a 3-month
period during which there was no union-security contract in
existence
(e) Using a card entitled "Membership Application And
Check-off Authorization," or any similar dual purpose card
which serves both as a union membership application and as a
dues check-off authorization, in the Respondents' relationship
with employees of Ruberoid Company or the employees of
any employer with whom either Respondent has a union-
security contractual relationship under which employees are
required to become and to remain union members as a
condition of employment
(f) In any like or related manner, or in any other
manner, 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) Reimburse employees for any dues checked off
pursuant to coercively obtained check-off authorizations for
any period prior to May 22, 1967, as set forth above in the
section entitled, "The Remedy."
(b) Reimburse employees for any retroactive dues
checked off for the months of February, March, and April,
1967, or any portion thereof, pursuant to coercively obtained
check-off authorizations or pursuant to any check-off authori-
zation which was signed by an employee who was led to
believe that he was required to make such payment as a
condition of continued employment, as set forth above in the
section entitled "The Remedy "
(c) Post in conspicuous places in its office and union
hall, in Newburgh, New York, and at its offices in the Fisk
Building, West 57th Street, New York City, including all places
where notices to its members are customarily posted, copies of
the notice attached hereto marked "Appendix B."26 Copies of
said notice, on forms to be provided by the Regional Director
for Region 2, shall, after being duly signed by a representative
of each Respondent be posted immediately upon receipt
thereof, and maintained by it for at least 60 consecutive days
thereafter Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Promptly, upon receipt of copies of said notice from
the Regional Director, return to him signed copies for posting
by Ruberoid Company, a division of General Aniline and Film
Corporation, it being willing, at all places where notices to the
Company's employees are customarily posted
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Trial Examiner's Decision, what
steps the Respondents have taken to comply herewith.27
26 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 Recommendations of a Trial Examiner " in the notice In
the further event that the Board 's Order is enforced by a decree of
the United States Court of Appeals , the words , "a Decree of the
United States Court of Appeals Enforcing an Order" shall be substi-
tuted for the words "a Decision and Order."
27 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
the Respondent has taken to comply herewith "
APPENDIX A
Membership Application and Check-off Authorization
District 50, United Mine Workers of America
I hereby request and accept membership in District 50,
United Mine Workers of America, and authorize it to represent
me in my behalf to negotiate and execute any and all
agreements pertaining to wages, hours, and conditions of work.
This power to act in my behalf expressly revokes and shall
supersede all previous authorizations which I may have given
to any other person or organization for the purpose of
representing me as an employee. The Constitution, Laws,
Rules, Policies, Regulations and Edicts of the above Union and
all amendments thereto shall be binding upon me In consider-
ation for services rendered and to be rendered by the above
Signature
Address
Employed by
Social Security No
Union, I agree to pay all reasonable amounts of money
lawfully required as a condition to obtain and maintain
membership in good standing
My employer, therefore, is hereby authorized to deduct
from my wages and turn over to the officer or representative,
as designated in the applicable agreement, all such amounts of
money above outlined and limited to the amounts provided in
the applicable agreement between the above Union and my
employer, and this authorization and assignment shall be
irrevocable for the term of the applicable contract between the
Union and the Company or for one year, whichever is the
lesser, and shall automatically renew itself for successive yearly
or applicable contract periods thereafter, whichever is the
lessor , until I give written notice to the Company at least 60
days and not more than days before any periodic renewal
date of this authorization and assignment of my desire to
revoke the same.
.. Clock No. . .
...... Date ..... .
This paper UNION MADE by District 50, UMWA Dist. 50 Form 528 Revised 11-1-60
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF
DISTRICT 50, AND LOCAL UNION No. 14029, INTER-
NATIONAL UNION OF DISTRICT 50, UNITED MINE WORKERS,
OF AMERICA, AND TO ALL EMPLOYEES OF RUBEROID
COMPANY
Pursuant to the Recommended Order of a Trial Examiner 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 threaten you with discharge and loss of
contract benefits if you fail or refuse to sign union check-off
authorizations for the deduction of dues.
WE WILL NOT give effect to any check-off authoriza-
tion cards that were coercively obtained and WE WILL
NOT cause the Ruberoid Company to make dues deduc-
April 1967, or any portion thereof, if, in signing a check-off
authorization card you were led to believe that you were
required to pay these dues as a condition of employment.
Dated By
LOCAL UNION No. 14029,
INTERNATIONAL UNION
OF DISTRICT 50, UNITED
MINE WORKERS OF
AMERICA
(Labor Organization)
(Representative ) (Title)
UNITED MINE WORKERS OF
AMERICA
(Labor Organization)
tions from the pay of any of you based upon such Dated By
authorizations.
WE WILL NO LONGER use a card entitled "Member-
ship Application and Check-off Authorization" while we
continue to represent you under a union-security contract
with the Ruberoid Company.
WE WILL reimburse you for any dues checked off
pursuant to coercively obtained check-off authorizations for
any period prior to May 22, 1967.
WE WILL reimburse you for retroactive union dues taken
out of your pay for the months of February, March, and
(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 di-
rectly with the Board's Regional Office, Fifth Floor, Squibb
Building, 745 Fifth Avenue, New York, New York, 10022,
Telephone 751-5500, Ext 852.