Local 953, Textile Workers Union

National Labor Relations Board - Board Decisions

Apr 5, 1971

189 N.L.R.B. 598 (N.L.R.B. 1971)

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 953 , Textile Workers Union of
America , AFL-CIO (Visinet Mill, Bemis Company,
Inc.) and Helen Sellers. Case 14-CB-1991
April 5, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On November 27, 1970, Trial Examiner James F.
Foley issued his Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent 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 had delegated 'ts
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, the 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 Respondent, Local Union No. 953, Textile
Workers Union of America, AFL-CIO, St. Louis,
Missouri, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
recommended Order.
MEMBER FANNING, dissenting:
I would dismiss the complaint in its entirety for the
reasons set out in the dissent to International Molders'
and Allied Workers Union, Local No. 125, AFL-CIO
(Blackhawk Tanning Co, Inc.), 178 NLRB No. 25.
In addition to imposing fines, Respondent barred the four members
involved herein from representing it in any capacity for 5 years The
legality of this latter action by Respondent is not in issue in the present
case Member Kennedy therefore neither adopts nor passes on the merits
of so much of the Trial Examiner's Decision as implies that in any event
that kind of union action would not support a violation of the Act
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY, Trial Examiner: This case, 14-CB-1991,
was brought before the National Labor Relations Board
(herein called the Board) under Section 10(b) of the
National Labor Relations Act, as amended (herein called
the Act), 61 Stat. 136, 76 Stat. 579, against Local Union No.
953, Textile Workers Union of America, AFL-CIO, (herein
called Respondent and Respondent Local 953), by a
complaint issued July 7, 1970, and answer filed July 14,
1970. The complaint is premised on a charge filed February
26, 1970, and an amended charge filed March 31, 1970, by
Helen Sellers, an individual.
It is alleged in the complaint that Respondent, in
violation of Section 8(b)(1)(A) of the Act, is restraining and
coercing employees of Visinet Mill, Bemis Bag Company,
Inc., St. Louis, Missouri (herein called Visinet Mill), by
imposing, on or about March 6, 1970, on employees Helen
Sellers, Katherine Larcom, Wanda Millikan, and Robert
Kitchell, fines in the amounts of $100, $100, $100, and $50,
respectively, because these employees engaged in organiza-
tional activities on behalf of the International Union of
District 50, Allied and Technical Workers of the United
States and Canada (herein District 50) Respondent denies
this allegation of illegal conduct in the complaint.
A hearing on the complaint and answer was held before
me on September 16, 1970, in St. Louis, Missouri. The
parties were afforded an opportunity to present evidence,
make oral argument, and file briefs. Briefs were filed by
General Counsel and Respondent after the close of the
hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF VISINET MILL
Visinet Mill, a Missouri corporation with its principal
office located at 2400 South Second Street, St. Louis,
Missouri, is, and has been, engaged in the manufacture and
distribution of woven paper bags, plastic mesh bags, and
related products at its null located at 2400 South Second
Street, St. Louis, Missouri. During the year ending
December 31, 1969, it manufactured and sold at this mill
products valued in excess of $ 50,000 which it shipped
directly to points located outside of the State of Missouri.
Visinet Mill is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and assumption of
jurisdiction will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent and District 50 are labor organizations
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
On March 9, 1970, Respondent, the collective-bargaining
representative of employees of Visinet Mill, fined Helen
Sellers, an employee of Visinet Mill and a member of
Respondent, $100 and barred her from serving in any official
189 NLRB No. 87
LOCAL 953, TEXTILE WORKERS UNION
capacity as a representative of Respondent for a period of 5
years from March 9, 1970, for the alleged conduct of dual
unionism, and making false and slanderous statements
about Respondent and its officers and agents for the
purpose of discrediting it. On March 20, 1970, Respondent
took the same action against Katherine Larcom and
Wanda Millikan, employees of Visinet Mill and members
of Respondent, for the same reasons. On this date,
Respondent, for the same reasons, took the same action
against Robert Kitchell, an employee of Visinet Mill and,
according to Respondent, one of its members. Kitchell was
fined $ 50 instead of $100. General Counsel contends he was
not a member of Respondent when he was fined.'
The question is whether Respondent violated Section
8(b)(1)(A) of the Act when it fined Sellers, Larcom,
Millikan, and Kitchell.
B. Background Evidence
Respondent Textile Workers (hereinafter referred to as
Respondent) had a collective-bargaining contract with
Visinet Mill for the period June 3, 1967, to June 3, 1970.
This contract had an agency shop provision which provided
that employees could be members of the Union and pay
union initiation fees, monthly dues, and other assessments,
or nonmembers who paid service fees to the Union in
amounts equal to the Union's regular initiation fee and
monthly dues. Nonmembers did not pay assessments or
other financial payments to the Union or have any other
obligation to the Union. This contract was replaced by a
collective-bargaining contract for the period June 1, 1970,
to June 2, 1973. There is no evidence that this agency shop
provision of the new contract varies from the agency shop
provision of the prior contract.
The Textile Workers Union of America, AFL-CIO, is
comprised of an international union, herein called Interna-
tional Union, joint boards affiliated with International
Union (herein called Joint Boards jointly, and Joint Board
severally), and locals affiliated with Joint Boards (herein
called Locals jointly and Local severally). Respondent
Local 953 is affiliated with the St. Louis Joint Board, and
the latter is affiliated with International Union Under the
Constitution of the International Union, the Bylaws of the
St. Louis Joint Board and the Bylaws of Respondent,
Respondent has authority to discipline its members, and
the members disciplined have the right of appeal to the St.
Louis Joint Board, and then to the International Union.
The executive board of Respondent, the executive board of
St. Louis Joint Board, and the executive council of
International Union act in disciplinary actions on behalf of
Respondent, St. Louis Joint Board, and International
Union respectively.
Members of Respondent may be disciplined by Respon-
dent for violations of the Constitution of the International
Union, a decision of Respondent or the St. Louis Joint
Board, or for dishonesty, misconduct or conduct detrimen-
tal to the welfare of the International Union, St. Louis Joint
Board and other Joint Boards, and Respondent and other
locals. The discipline includes a fine, removal from office,
1 General Counsel's motion at the hearing for leave to amend the
complaint, by adding an allegation that Kitchell was not a member of
Respondent but paid Respondent a service fee as permitted by the
599
disqualification from running for office, or suspension or
expulsion from membership.
Disciplinary action by Respondent is initiated by the
filing of charges with the recording secretary of Respon-
dent. By registered mail to the charged member's last known
address, the recording secretary transmits a copy of the
charges to the member charged along with notice of
opportunity to appear before the executive board in a
hearing on the charges to be held not less than a week after
the date of the notice. If the charged member receives the
required notice, the hearing on the charges may be held
even though he or she fails to appear at the hearing. The
executive board determines the disciplinary action to be
taken after the hearing on the charges. As stated, the
member disciplined then has the opportunity to appeal the
executive board's action to the executive board of the St.
Louis Joint Board. He has a final appeal to the executive
council of International Union from the action of the
executive board of the St. Louis Joint Board.
C. Respondent's Alleged Illegal Conduct to Helen
Sellers
In a letter to Helen Sellers dated March 9, 1970, signed by
Betty Moss, recording secretary of Respondent, Respon-
dent informed Sellers as follows:
You were charged February 27, 1970 by the Officers of
Local 953, TWUA AFL-CIO with conduct detrimental
to the organization. After proper notice to you, a
hearing was held by the Executive Board of Local 953,
TWUA AFL-CIO in accordance with the International
Constitution and the By-laws of the Local. After due
deliberation at the hearing held March 6, 1970 you were
found guilty of Acts harmful to the organization as
follows:
(1) Engaging yourself in dual unionism.
a. Inviting representative of an antagonistic
union (District 50 United Mine Workers) into
your home for the purpose of promoting the
welfare of District 50 at the expense of Local 953
TWUA AFL-CIO.
b. Signing a card authorizing District 50 to act
as your representative.
c Taking District 50 cards for the purpose of
influencing others to abandon Local 953 of
TWUA AFL-CIO.
(2) Making false statements pertaining to the Labor
Agreement and the Textile Workers Union of America
with the express purpose of casting discredit on the
organization to which you belong-TWUA AFL-CIO.
In view of the foregoing you are hereby:
(1) Barred from serving in any official capacity as a
representative of Local 953 TWUA AFL-CIO includ-
ing but not limited to holding office as an Officer or
Steward for a period of five years from this date.
(2) A Fine of $100 due and payable immediately
upon receipt of this notice to the Financial Secretary of
Local 953, TWUA AFL-CIO, Maxine Crain, 1601
South Broadway, St. Louis, Mo. 63104.. .
collective-bargaining contract between Respondent and Visinet Mill, was
granted Respondent's motion for leave to amend its answer by adding a
denial of the new allegation in the complaint was also granted
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a letter dated February 27, 1970, and signed by
Waunita Wuertz, president of Respondent, James W.
Taylor, vice president of Respondent, and Maxine Crain,
financial secretary of Respondent, Sellers was informed
that she had been charged with conduct detrimental to
Respondent, and in accordance with the bylaws and
constitution of Respondent and the Textile Workers Union
of America, AFL-CIO, she was requested to appear before
Respondent's executive board in a hearing on the charge at
4:30 p.m., Friday March 6, 1970. The hearing was held as
scheduled, but Sellers did not appear. At the hearing, the
executive board heard members of Respondent state that
Sellers invited District 50 representatives to meet with her
and other employees at her home, and she and other
employees met with District 50 representatives at her home
on February 6 and 11, 1970. They also heard that at the
second meeting Sellers and other employees made dispar-
aging statements about Waunita Wuertz, as president of
Respondent, the collective-bargaining contract between
Respondent and Vismet Mill, and the benefits received
under the contract, and Sellers compared the insurance
benefits the employees received as members of Respondent
with the benefits of an insurance program she had in her
possession, and that a District 50 representative stated that
if they selected District 50 to represent them they would not
lose any benefits they were receiving under the contract
between Respondent and District 50, and he passed out
authorization cards, which were signed and returned to him
by some of those present, and he gave additional cards to
some of those present for them to solicit signatures on The
District 50 representative told them not to pass out the
cards in the plant during working hours. Charles Sallee,
business agent of the executive board of Respondent and of
the executive board of the St. Louis Joint Board, summed
up what was stated by the members who were present at the
February 6 and 11, 1970, meetings at Sellers' apartment and
recommended the discipline Sellers should receive Sallee
was not a member of the executive board. The executive
board found that Sellers engaged in the conduct set out in
2 It is undisputed that he was International Representative Bolen of
District 50
l As stated the expiration date was June 3, 1970 The period during
which a petition can be filed by an out union is the 30-day period between
90 days and 60 days before the expiration of the contract Leonard
Wholesale Meats, Inc, 136 NLRB 1000 The period is identified as the
insulated period With respect to the contract between Respondent and
Visinet Mill it was the 30 days between March 3, 1970. and April 3, 1970
There were in excess of 500 employees in the unit Authorization cards
from 30 percent of the employees in the unit must support the petition
4 Johanna Harms and Presch gave testimony to Respondent's executive
board on March 6, 1970, of what occurred at the first meeting at Sellers'
apartment
`> Rocket and Harms reported to the executive board on March 6 what
occurred at the second meeting Respondent held two sessions of a regular
meeting on March 9, 1970, one at 12 30 p m and one at 3 30 p m Two
sessions were held so that members on different shifts at Vismet Mill could
attend President Wuertz presided at both sessions At the first session, she
stated that some of their members had contacted another union, and it was
the understanding that they did not like the president She stated that if
they were unhappy with what was being done they should try to change
what was being done, and that she was also unhappy but was doing the
best she could She talked about what the members would be giving up if
they went to another union She said that she was ashamed of members
trying to destroy Respondent, and did not intend that another union would
come in and take over Business Agent Sallee asked the members to make
Respondent's letter to Sellers dated March 9, 1970, and
determined she should be disciplined as stated in this letter.
Sellers testified at the hearing before me that on February
3, 1970, she saw a gentleman wearing a District 50 badge in
the parking lot of Visinet Mill, and offered him her
apartment as a meeting place . He was obviously organizing
for District 50 or at least seeing what the possibilities were
for an organizational campaign .2 On February 4, 1970,
Bolen came to the door of her apartment, brought her to the
automobile he came in, and introduced her to District 50
International Representative Ring who was in the automo-
bile. Sellers had a conversation with Bolen and Ring at the
automobile. Ring asked her when the contract between
Respondent and Visinet Mill expired. He explained to her
that there was a certain period of time, not less than 30
days, before a contract expired during which a union may
file a petition with the Board seeking to replace the union
having the contract with the employer.3 They agreed on the
date of Friday, February 6, 1970, for the first meeting at
Sellers' home (an apartment). The meeting was held on this
date. Sellers was ill with a cold in bed, but the meeting was
held in the living room of her three room apartment, and
access to it was through her bedroom. The entrance to the
apartment was to the kitchen. The bedroom was between
the kitchen and the living room. She did not hear what was
said at the meeting as drapes separated her bedroom from
the living room. She testified that employees Wanda
Millikan, Katherine Larcom, Robert Mitchell, Audrey
Shanks, Pauline Smith, and another gentleman attended
the meeting. Other evidence discloses he was George
Presch.4 Sellers testified that District 50's International
Representatives Bolen , Ring and Morgan were also present.
She testified that present at the second meeting were she,
Millikan, Larcom, Mitchell, Harms, a lady from the day
shift, and District 50's International Representatives Ring
and Morgan. Other evidence discloses that the other lady
was Mary Rocket.5
Sellers talked to the employees present at the second
meeting in her apartment. She was not ill and heard
everything said openly. She testified on cross-examination
notes of what they wanted in the contract proposal to be negotiated for a
new contract He asked members to take note of the pledge given by new
members to support Respondent , and to be strong and stand together at
the end of the collective bargaining contract He referred to District 50 as a
labor organization that capitalized on the misfortune of other labor
organizations He referred to employees represented by District 50 that
were formerly represented by Respondent, and claimed that District 50's
contract with their employer did not compare with the contract
Respondent had with Vismet Mill He stated that it had been reported that
Helen Sellers had had meetings set up in her home, that five or six
members had knowledge of the meetings President Wuertz stated that
members Audrey Shanks and Katherine Larcom were involved with
District 50 At the second session President Wuertz stated to those present
that one of the problems Respondent had to consider was the reaching of
some members for another union and that Respondent intended to stop
them with the members' help Business Agent Sallee told the members that
District 50 was threatening Respondent by efforts to organize companies
having contracts with Respondent He told the members to tell District 50
to get lost , and to organize the unorganized Sallee referred to the District
50 February 6 meeting in Sellers' apartment He said that five or six
members had seen what happened Wuertz talked about Respondent's
members who were involved with District 50, and stated that members
Audrey Shanks and Katherine Larcom, along with Sellers, were involved
Wuertz also stated that the members had a strong feeling that some action
should be taken against any member found guilty of destroying their
Union
LOCAL 953, TEXTILE WORKERS UNION
that she spoke against President Wuertz of Respondent.
She said she was not a good president except for special
people, and did not process grievances fairly.6 She also said
that insurance programs and programs bargained for by
Respondent were no good. When talking about the
insurance program she produced a document containing an
insurance program and said it was better than the one the
employees had. She denied she said that prescriptions were
not filled at stores of the St. Louis Joint Board at wholesale
prices, but heard someone say that prescriptions and other
drugs could be obtained more reasonably at the Joint
Board stores, but heard others say that they cost just as
much at the Joint Board stores as they did in the open
market . Sellers also admitted she said Respondent had
never done anything for her. Sellers testified she never
attempted to cancel or withdraw from her membership in
the Union, or appeal the executive board's decision of
March 9, 1970, although she knew she could appeal.
Sellers testified that she signed a District 50 card at the
second meeting. She received it from International
Representative Morgan. The card she signed was received
in evidence. It is stated on the card that the signer requests
and accepts membership in District 50 and of his or her
own free will authorize District 50 to act as representative
or agent for collective-bargaining purposes. She returned
the signed card to Morgan. She saw Millikan, Larcom, and
Kitchell sign cards. Their testimony discloses they signed
cards, and like Sellers, returned them to Morgan. At the
time Morgan passed out the cards he said they were not for
District 50 but for the Board, and if cards were signed by 50
percent of the employees they could get an election and
vote the way they wished.
Morgan testified that at the second meeting he passed out
cards and said that if enough people signed them District 50
would file a petition with the Board to get an election at
which District 50 could be selected to represent them if it
received 1 percent over 50 percent of the votes cast. Morgan
also testified that in addition to the cards signed and
returned to him he passed out cards to some of those
present for them to solicit other employees to sign them.?
Morgan also testified that at the first meeting there was
asked the question how you go about changing unions, and
one of the District 50 representatives said that a certain
number of cards had to be signed to support a petition to
the Board for an election. He testified that at this meeting
International Representative Ring asked for a copy of the
contract between Respondent and Visinet Mill to find out
its expiration date.
On or about March 21, 1970, employees Millikan and
Larcom, who had attended the February 6 and 11 meetings
at Sellers' apartment, received from Respondent identical
letters dated March 20, 1970, signed by Maxine Cram,
financial secretary and acting recording secretary. These
letters are identical with the letter dated March 9, 1970, and
signed by Recording Secretary Moss, sent to Sellers (supra)
except that the date stated therein that they were charged
6 Sellers was not satisfied with the way a grievance she filed was
processed by Respondent.
7 Sellers, Millikan , Larcom, and Kitchell testified they received
additional cards from Morgan . Millikan, Larcom , and Kitchell testified
they passed them out to other employees , and told them as they passed
them out they were for an election . I credit this testimony
601
with conduct detrimental to the welfare of Respondent is
March 11, 1970, and the date the hearing was held on the
charge is stated as March 19, 1970, and subparagraph 1(a)
in Sellers' letter which referred to Sellers' inviting District
50 to use her home to promote its welfare is not included.8
Millikan and Larcom were notified in the letters dated
March 20, 1970, that they were found guilty of the charge
and barred from holding office for 5 years and fined $100.
On or about March 12, 1970, Larcom and Millikan received
letters dated March 11, 1970, from Respondent signed by
President Wuertz, Vice President Taylor and Financial
Secretary Crain, in which they were notified that they were
charged with conduct detrimental to the welfare of
Respondent, and requested to appear at a hearing on the
charge before Respondent's executive board on March 19,
1970.
On or about March 21, 1970, Kitchell, who also attended
the February 6 and 11 meetings in Sellers' apartment,
received from Respondent a letter identical with the letters
dated March 20, 1970, received by Larcom and Millkan,
with the exception that he was notified that the fine was $ 50.
Larcom and Millikan were each fined $100. Kitchell
received a letter dated March 11, 1970, in which he, like
Larcom and Millikan, was charged with conduct detrimen-
tal to the welfare of Respondent, and was requested to
appear at an executive board hearing on the charge on
March 19, 1970.
The executive board hearing was held on March 19 as
scheduled. The evidence presented to the board at its
hearing on March 6 regarding the February 6 and 11
meetings in Sellers' apartment was reviewed. Larcom,
Millikan, and Kitchell did not attend the hearing. As stated,
Johanna Harms who attended both meetings in Sellers'
apartment reported . what occurred at those meetings.
Harms' testimony before me and the minutes of the
executive board meetings contain no reference to District
50's Morgan statements at the second meeting regarding
the purpose behind the signing of District 50 cards, and the
necessity of filing a timely petition for an election
supported by a required number of signed authorization
cards as the means by which the employees could obtain an
election in which to express their decision to replace or not
replace Respondent as bargaining representative. Annavere
Turner, a member of Respondent's executive board who
was present at both the March 6 and 19 executive board
hearings testified in the hearing before me what she heard
at both hearings. Her testimony in general discloses that the
board heard substantially what occurred at the February 6
and 11 meetings in Sellers' apartment with the exception of
what the District 50 representative said about the purpose
of the cards and the filing of the petition.9 Turner testified
in the hearing before me that at the March 19 hearing
before the executive board she told that board that in 1970
Larcom said to her in the plant that Wuertz only fights for
whom she likes, and that the officers were a bunch of
B Sellers was the only one who invited District 50 to use her apartment
for meetings.
9 The minutes of Respondent's regular meeting on February 9, 1970,
which are in evidence disclose that Respondent was aware that District 50
was attempting to replace Respondent as bargaining representative.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crooks. On cross-examination she testified that Larcom
made these statements close to July 1970.10
Kitchell testified before me that when he was employed
on February 10, 1969, he signed checkoff application, and
an application for membership in Respondent. The
application included an authorization to pay the initiation
fee. When he had paid the initiation fee about 2 months
later, he received from Respondent a membership card for
1969. He did not recall whether he received it from the shop
steward or it was clipped to his timecard. When he began
employment with Visinet Mill he did not know of an
employee who was not a member. He did not know of any
when he testified. He took the membership oath at
Respondent's regular meeting on June 3, 1970. This was the
first meeting of Respondent he ever attended. He received a
membership card for 1970 shortly after he was sworn as a
member. He tore up this card. There is no evidence that
Kitchell informed Respondent he tore up this card. On
cross-examination Kitchell testified he thought he was a
member after he signed the forms when he began
employment in February 1969 contrary to his testimony on
direct that he did not know. As I have previously found,
Kitchell attended the February 6 and 11, 1970, meetings at
Sellers' home, signed a District 50 card and received
additional District 50 cards to solicit signatures on, and
passed them out. At the meetings he said Respondent was
not a good union , and he criticized its medical program.
Larcom and Millikan voiced disapproval of Respondent as
a union, and expressed the opinion the employees needed a
change.
Millikan, Larcom, and Kitchell testified they did not
resign or attempt to resign from the membership of
Respondent, or appeal the disciplinary actions of Respon-
dent's executive board against them. There is no evidence
that Sellers , Larcom, Millikan, and Kitchell have paid the
fines or have made any attempt to do so, or that
Respondent has attempted to collect the fines, or has taken
any disciplinary action against Sellers, Larcom, Millikan,
and Kitchell for their failure to pay them.
I credit the testimony of Sellers and Morgan of what
occurred at the February 6 and 11, 1970, meetings in
Sellers ' apartment and Sellers' testimony of her February 3
meeting with District 50's Bolen , and her February 4
meeting with Bolen and District 50' s Ring. I reach this
conclusion of fact after evaluation of the testimony in the
context of the record as a whole.
Analysis, Findings of Fact and Conclusions of
Law
The only issue is whether Respondent violated Section
8(b)(1)(A) of the Act by fining employees Sellers, Larcom,
Millikan, and Kitchell of Visinet Mill, the employer with
which it had a collective-bargaining contract at the time it
10 1 do not credit Turner's testimony that she said to the executive
board at the March 19 meeting what she testified in the hearing before me
what Larcom had said to her in the plant about Wuertz and the other
officers of Respondent, in view of her testimony , Larcom said to her close
to July 1970 If she said them at that time , Turner obviously could not
report them to the executive board at the March 19 hearing
11 See Machinists Lodge No 405 (The Boeing Co ), 185 NLRB No. 23, 75
LRRM 1004.
12 Respondent could not produce Kitchell 's 1969 membership card, as
imposed the fines. It is undisputed that Sellers, Larcom, and
Millikan were members of Respondent at the time the fines
were imposed. General Counsel contends Kitchell was not
a member when he was fined and Respondent contends he
was. If Kitchell was not a member the fine imposed on him
is illegal irrespective of the nature of his conduct as the
proviso to Section 8(b)(1)(A), exempting its application to
conduct that is a union's action regulating its internal
affairs except where the exemption would be in conflict
with statutory public policy, affords Respondent no
protection."
On the testimony of Kitchell, General Counsel's witness,
I find and conclude that he was a member of Respondent
when he was disciplined on March 20, 1970. He signed a
checkoff authorization which included an authorization to
pay Respondent's initiation fee and an application for
membership on February 10, 1969, the first day of his
employment with Visinet Mill. On the first day of his
employment he did not know of any employee of Visinet
Mill who was not a union member, and at the time he
testified he still did not know of any employee who was not
a union member. He finished paying the Respondent's
initiation fee about 2 months after February 10, 1969, and
shortly thereafter received a membership card. He received
it from a shop steward or it was clipped to his time card. He
kept this membership card, and did not destroy it although
he could not recall where it was at the time he testified
before me.12 Kitchell testified on direct examination he did
not know if he was a member, but on cross-examination he
testified he thought he was a member. He was not sworn in
as a member until June 3, 1970 at a regular meeting. But he
never attended a meeting until he attended the June 3
meeting. There is no evidence that taking the membership
oath is a condition precedent to membership. There is no
evidence that discloses why he took the membership oath
including the pledge of loyalty to Respondent if he did not
intend to be a member and was not a member. He received
a membership card for 1970 shortly after June 3, 1970 when
he took the oath. He testified he tore up this card, but there
is no evidence that he informed Respondent he tore up the
card. On this evidence, I find Kitchell was a member.
There is no evidence that the membership Kitchell held in
1969 was withdrawn prior to or on March 20, 1970, or that
Kitchell had withdrawn from union membership or was
expelled or suspended from it by March 20, 1970.
General Counsel appears to argue that since the service
fee that a nonmember is required to pay under the agency
shop provision of the contract between Respondent and
Visinet Mill is equal to the amount of monthly dues and the
initiation fee, no weight can be given to his checkoff
authorization of monthly dues and the initiation fee as
evidence of union membership because Respondent did not
present independent evidence that Kitchell intended to
Kitchell, General Counsel's witness, and not Respondent's had been in
possession of the card and could not recall where it was Kitchell testified
as General Counsel's witness that he received the 1969 membership card
but did not know where it was. I find no merit in General Counsel's
contention that no weight can be given to Kitchell 's testimony that he had
a 1969 membership card because it was Respondent 's burden to produce
the card On this record the best evidence available is Kitchell's testimony
General Counsel seeks to impeach his own witness
LOCAL 953, TEXTILE WORKERS UNION 603
authorize the checkoff of union dues and the union
initiation fee, and did not intend to merely authorize the
checkoff of the service fee Respondent charged nonmem-
bers. I find that the authorization for checkoff of the dues
and fee on this record are evidence, although alone not
conclusive, that Kitchell was a member when disciplined.
General Counsel presented no evidence, direct or indirect,
that in authorizing Respondent checkoff of Respondent's
monthly dues and the Respondent's initiation fee, Kitchell
as a nonmember, or an employee who did not intend to
become a member, only intended to authorize the checkoff
of the service fee. The burden was on General Counsel to
furnish evidence that what Kitchell did was not what he
appeared to be doing. It was not the burden of Respondent
to show by independent evidence that what Kitchell did
was what he appeared to be doing and was not doing
something else.
The evidence shows that Sellers, Larcom, Milhkan, and
Kitchell were notified they were fined, and barred from
representing Respondent in any capacity for 5 years,13 for
signing cards authorizing District 50 to act as their
collective-bargaining representative, taking additional
District 50 authorization cards to have other employees
sign them, and by making false statements pertaining to the
contract between Respondent and Visinet Mill, and to the
Respondent, for the purpose of discrediting Respondent.
Sellers was also informed she was disciplined for engaging
in dual unionism by inviting District 50 representatives to
use her home to promote District 50 at the expense of
Respondent.
The evidence shows, and I find, that Sellers, Larcom,
Millikan, and Kitchell, on February, 1970, signed District
50 cards which were authorizations to District 50 to act as
their bargaining representative and applications for mem-
bership in District 50, and on the same date accepted
additional cards from District 50 for the purpose of having
other employees of Vismet Mill sign them, and did solicit
other employees to sign them. I find that Sellers invited
District 50 representatives to use her home for meetings to
solicit employees of Visinet Mill to replace Respondent
with District 50 as their bargaining representative. I find
that at the February 11 meeting Sellers spoke unfavorably
of President Wuertz of Respondent with respect to her
work as president of Respondent in the administration of
the contract between Respondent and Visinet Mill, and
Sellers, Larcom, Millikan, and Kitchell at that meeting
spoke unfavorably of the provisions of the collective-
bargaining contract between Respondent and Visinet Mill
and benefits received under this contract, and of Respon-
dent's adequacy as their bargaining representative.
I find and conclude that the evidence of what transpired
at the February 6 and 11 meetings in Sellers' apartment
discloses that Sellers invited District 50 to use her
apartment for meetings, and she and other employees met
there with District 50 representatives to find a way to
replace Respondent as their collective-bargaining repre-
sentative. They signed District 50 cards and took additional
cards from Morgan of District 50 for other employees to
sign after they inquired of the District 50 representatives
what steps had to be taken to replace Respondent with
District 50 as bargaining representative, and District 50's
Morgan told them that this could be done in an election in
which District 50 received 51 percent of the votes the
election to be held by the Board after being requested to do
so in a petition supported by a certain number of
authorization cards filed within a 30-day period before the
expiration of the contract between Respondent Visinet
Mill.
I find and conclude that statements made by Sellers,
Larcom, Millikan , and Kitchell were expressions of
dissatisfaction by them with the provisions of the contract
between Respondent and Visinet Mill which Respondent
negotiated and executed, with the benefits provided by the
contract, and with the way Respondent administered the
contract. I find nothing slanderous or false, within the
meaning of these terms , in the statements made by Sellers,
Larcom, Millikan, and Kitchell. They were fair comments
with respect to the contract, its provisions, the benefits
received under it, and the work of the collective-bargaining
representative in administering the contract, whether made
in a meeting held by the Respondent or in an outside
meeting to explore the means of replacing Respondent as
bargaining representative.
In both sessions of a regular meeting Respondent held on
March 9, 1970, President Wuertz and Business Agent Sallee
referred to the February 6 and 11 meetings held in Sellers'
apartment. Wuertz stated that members were seeking out
another union to represent them, and that these members
should be disciplined. Sallee remarked that District 50 was
threatening Respondent by attempting to organize plants
already organized instead of organizing the unorganized.
He referred the members present to the pledge of loyalty to
Respondent taken by new members. President Wuertz
referred to the remarks made about her at the February ll
meeting in Sellers' apartment, and in connection with her
reference to these remarks stated that she was doing the
best she could as president, but the way for members to
remedy what was being done that was the subject of their
complaints was to change this way of doing things by
action within their own union. Discipline was mentioned by
Wuertz only in connection with the efforts of Sellers and
her associates to replace the Respondent as bargaining
representative. There is no probative evidence that the
executive board was apprised of alleged slanderous and
false statements against Respondent at the March 6 and
March 19 executive board hearings other than the
statements made at the February 11 meeting in Sellers'
apartment. What was heard by the executive board on
March 19 was largely a review of what it heard at its
hearing on March 6.
This evidence discloses, and I find, that the fines were
imposed at least in substantial part for the efforts of Sellers,
Larcom, Millikan, and Kitchell to replace Respondent as
bargaining representative. It was on the same day of the
meeting, March 9, that Respondent informed Sellers of the
is As stated, the legality of the discipline of barring them from and Assistants ' Union of North America, AFL-CIO (Westvaco Corporation,
representing Respondent for five years is not in issue Under Printing H & D Container Division), 183 NLRB No 125, this union discipline of
Specialties and Paper Products Union No 81, International Printing Pressmen members is not violative of the Act
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disciplinary action against her taken by its executive board
following the hearing before it on March 6.
The evidence also discloses, and I so find and conclude
that the action taken by Sellers, Larcom, Millikan, and
Kitchell to replace Respondent as bargaining representa-
tive was to give signed authorizations to District 50 to act as
their bargaining representative and to solicit other employ-
ees of Visinet Mill to give signed authorizations to District
50 to act as their bargaining representative to support
petition for a certification election to be filed with the
Board by District 50 within the period of March 3, 1970, to
April 3, 1970, the 90-60-day period prior to the expiration
date of June 3, 1970, of Respondent's collective-bargaining
contract with Visinet Mill. The Board requires that this
petition be supported by authorization cards of 30 percent
of the employees in the unit, and that it be filed within the
90-60-day period prior to the expiration date of the in-
union's collective-bargaining contract.14
Section 8(bXl)(A) makes it a violation for a labor
organization to restrain or coerce employees with respect to
their rights stated in Section 7 of the Act. One of these
rights is the selection of a collective-bargaining representa-
tive. The Board has held that a labor organization restrains
and coerces members with respect to their right to select a
bargaining representative in violation of Section 8(b)(1)(A)
when it fines its members for filing a deauthorization
petition or circulating it to obtain signatures on it or for
soliciting authorizations resulting in the timely filing of a
petition for a certification election. The members of
Respondentwere fined for engaging in essential preliminary
work attendant on the timely filing of a petition with the
Board for a certification election. This conduct is the same
as the conduct the employees engaged in in Printing
Specialties and Paper Products Union No. 81 for which they
were fined by their union. The Board found that the union
violated Section 8(b)(1)(A) of the Act by the fines. Under
the law established in that case, I find that Respondent
violated Section 8(b)(1)(A) of the Act by the fines. The fact
that no petition was filed does not provide Respondent with
a defense. The fines were imposed on March 9 and 20, 1970.
The period within which to file did not expire until April 3,
1970. Respondent's actions of March 9 and 20 could well
have prevented the obtaining of the required number of
authorizations to support a timely petition for a certifica-
tion election.
A contrary decision in this case would make meaningless
the Board's decisions that employees or their representa-
tives are protected from fines by unions of which they are
members for filing timely petitions for deauthorization or
circulating the petitions, or for obtaining authorizations to
support a timely petition for a certification election. The
Board has decided that there is no merit to Respondent's
defense that the fined employee should have exhausted the
14 See Leonard Wholesale Meats, supra, and Sections 102.60 and 1J2.61
of the Board 's Rules and Regulations , Serves 8, as amended , and Section
101 17 of the Board's Statement of Procedure, Series 8, as amended
15 Printing Specialties and Paper Products Union, supra, International
Molders' and Allied Workers Union, Local No 125, AFL-CIO (Blackhawk
Tanning Co, Inc), 178 NLRB No. 25; United Lodge No. 66, International
Association of Machinists and Aerospace Workers, AFL-CIO (Smith Lee Co,
Inc), 182 NLRB No. 129, Automotive Salesmen 's Association (A S A)
remedies provided by the constitution and bylaws before
going to the Board.15
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
employer named 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.
CONCLUSIONS OF LAW
1. By imposing fines against Helen Sellers, Katherine
Larcom, Wanda Millikan, and Robert Kitchell because
they had signed collective-bargaining authorizations and
solicited fellow employees to sign collective-bargaining
authorizations for a rival union to support a timely filing of
a certification election petition with the Board, Respondent
has engaged and is engaging in unfair labor practices within
the meaning of Section 8(bxl)(A) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent Union has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act.
To remedy the coercive effect of the fines assessed by
Respondent, I will recommend that Respondent Union
rescind the fines assessed against Sellers , Larcom, Millikan,
and Kitchell. As their conduct was discussed during at least
the two sessions of the March 9 regular membership
meeting, I will further recommend that the notice attached
hereto as Appendix A be read at a regular membership
meeting immediately upon receipt of said notice.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER l6
Respondent , Local Union No. 953, Textile Workers
Union of America, AFL-CIO , its officers , agents and
representatives , ^shall:
1. Cease and desist from:
(a) Assessing fines against its members, including
officers, for signing bargaining authorizations of, for
soliciting fellow employees to sign bargaining authoriza-
affiliated with Siuna, AFL-CIO (Spider-Demer, Inc.), 184 NLRB No 64;
Local 138, Operating Engineers (Charles Skura), 148 NLRB 679, 684.
16 In the event no exceptions are filed as provided by Sec. 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 Sec . 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.
LOCAL 953, TEXTILE WORKERS UNION
tions for a rival union to support the timely filing of a
certification election petition with the Board.
(b) In any like or related manner restraining or coercing
employees in the exercise of their 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) Rescind the fines assessed against Helen Sellers,
Katherine Larcom, Wanda Millikan, and Robert Kitchell
for signing bargaining authorizations and for soliciting
fellow employees to sign bargaining authorizations for a
rival union to support the timely filing of a certification
election petition with the Board, or for attempting to have a
certification petition for a rival union filed with the Board.
(b) Read to the membership the contents of the attached
"Appendix A" at a regular membership meeting immedi-
ately upon receipt of said Appendix.
(c) Post in conspicuous places in Respondent's business
offices, meeting halls, and all places where notices to
members are customarily posted, including Visinet Mill's
bulletin boards if Respondent has access to them, copies of
the attached notice marked "Appendix A." 17 Copies of said
notice, to be furnished by the Regional Director for Region
14, shall, after being signed by Respondent's authorized
representative, be posted by it immediately upon receipt
thereof, and be maintained by it for a period of 60
consecutive days thereafter. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Sign and mail to the Regional Director for Region 14
sufficient copies of said notice, to be furnished by him for
posting by Visinet Mill, if it is willing, at places where it
customarily posts notices to its employees.
(e) Notify the Regional Director for Region 14, in, writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent has taken to comply therewith.18
lr In the event that the Board 's Order is enforced by ajudgment 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."
is 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, 20 days from the date of this Order, what steps Respondent
has taken to comply herewith."
605
APPENDIX A
NOTICE TO
EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assess a fine against any members of
our union for signing collective bargaining authoriza-
tions or soliciting employees to sign bargaining
authorizations to support a petition to the National
Labor Relations Board for a certification election
petition for a rival union filed with the National Labor
Relations Board.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of your rights guaranteed
in Section 7 of the Act.
WE WILL rescind the fine assessed against Helen
Sellers , Katherine Larcom, Wanda Millikan and Robert
Kitchell for signing bargaining authorizations or for
soliciting fellow employees to sign bargaining authori-
zations for a rival union to support a petition for a
certification election petition to be timely filed with the
Board.
LOCAL UNION No. 953,
TEXTILE WORKERS UNION
OF AMERICAN , 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, 210
North 12th Boulevard, Room 448, St . Louis, Missouri
63101, Telephone 314-622-4174.