Utility Co-Workers' Association

UTILITY CO-WORKERS' ASSOCIATION 849 UTILITY CO-WORKERS' ASSOCIATION and A. G. SANDUSKY, EDWIN W. COLLAR, PETER SEXTON. Case No. 4-CB-141. May 14, 1954 DECISION AND ORDER On August 14, 1953, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled pro- ceeding, 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 copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Re- spondent had not engaged in an unfair labor practice by main- taining or enforcing a contract containing an illegal main- tenance-of-membership clause, as alleged in the complaint, and recommended dismissal of that allegation. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. 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 Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the find- ings, conclusions, and recommendations of the TrialExaminer except as hereinafter set forth.' 1. For the reasons indicated in the Intermediate Report, we agree with the Trial Examiner that the Respondent violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act by threatening and attempting to cause the discharge of the three charging parties in this case. 2. We agree with the Trial Examiner that the Respondent did not maintain or enforce a contract with the Company con- taining an illegal maintenance-of-membership clause in viola- tion of Section 8 (b) (2) or 8 (b) (1) (A) of the Act. However, in so doing, we do not rely on the Trial Examiner's rationale that the alleged infirmity in the 1950 written contract in question was cured by a contemporaneous oral agreement di- rectly in conflict with the express terms of the written contract. As more fully set forth in the Intermediate Report, the Re- spondent's 1948 and 1950 contracts with the Company, dated November 1, 1948, and November 1, 1950, but in fact executed on July 11, 1949, and December 28, 1950, respectively, each provided that, as a condition of employment, those "present employees" who were members of the Respondent"onNovem- ber 1, 1948," or who became members thereafter, shall main- tain such membership in good standing for the duration of the contract. 'The Respondent's request for oral argument is hereby denied, as the record, including the exceptions and briefs, adequately present the issues and positions of the parties. 108 NLRB No. 122. 339676 0 - 55 - 55 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel contended that the maintenance-of- membership clause in the 1950 contract was invalidbecause by its terms it required those current employees who were mem- bers of the Union on or after November 1, 1948, but who, for any reason, ceased being members before the execution of the 1950 contract, to be members in good standing for the duration of the 1950 contract. According to the General Counsel, the infirmity in the 1950 contract lies in the fact that it does not by its terms extend the statutory 30-day grace period to such employees. We find no merit in this contention. The 1948 contract re- quired those employees in question to maintain their union membership during its term.' So far as appears, none of them ceased being union members before the expiration of the 1948 contract. In the absence of such evidence, we may not presume that they have not complied with the terms of the 1948 contract requiring them to maintain their union membership for the duration of the contract. As the 1950 contract, in substance, was executed contemporaneously with the expiration of the 1948 con- tract, the employees who were required by the 1948 contract to maintain union membership were thus union members at the time of the execution of the 1950 contract, and hence were not entitled to a 30-day grace period. 3 Under the circumstances, we conclude that the maintenance-of-membership clause of the 1950 contract was not violative of the Act. ORDER U on the entire record in the case , and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent , Utility Co-Workers ' Association , its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Threatening to cause , or attempting to cause , the Public Service Electric and Gas Company to discharge A. G. Sandusky, Edwin W. Collar , or Peter Sexton, or any other employee or employees , because of their failure to pay dues to, or to main- tain their membership in, the Respondent , except to the extent that such action on the part of the Respondent may be justified by the specific , permissible , and applicable terms of an agreement with the Public Service Electric and Gas Company, as authorized in Section 8 (a) (3) of the Act. (b) In any like or related manner , restraining or coercing employees of Public Service Electric and Gas Company in the exercise of their right to refrain from joining or maintaining their membership in the Respondent , except to the extent that 2 The validity of the 1948 contract is not in issue before us and the Board would in any event be barred by Section 10 (b) from passing on it. 3 See, for example, Krause Milling Co., 97 NLRB 536. UTILITY CO-WORKERS' ASSOCIATION 851 such right may be affected by the specific , permissible, and applicable terms of an agreement with the Public Service Elec- tric and Gas Company as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post in conspicuous places in its business offices at Newark, New Jersey , where notices to members are customar- ily posted , copies of the notice attached hereto as "Appendix A."' Copies of said notice, to be furnished bythe Regional Di- rector for the Fourth Region, shall, after being duly signed by the Respondent's official representative, be posted by it immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered , defaced, or covered by any other material. (b) Notify the Re ional Director for the Fourth Region in writing, within ten (g10) days from the date of this Order, what steps it has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respond- ent maintained or enforced a contract containing maintenance- of-membership provisions in violation of Section 8 (b) (2) or 8 (b) (1) (A) of the Act. Member Rodgers , dissenting: I agree with the majority of the Board that the Respondent violated Section 8 (b) (1) (A) and 8 (b) (2) of the Act by threaten- ing and attempting to cause the discharge of the three charging parties. However , I would find these acts to be violative of the Act not only because the employees in question were never in fact members of the Union, but also because in my opinion the maintenance -of-membership clause of the 1950 contract was illegal and, therefore, incapable of validating the Respondent's conduct whether or not the employees ever became union members. The 1950 contract was dated November 1, 1950, and was executed on December 28, 1950 . It provided with respect to "present employees " that "All employees who, on November 1, 1948, were members of the Union in good standing . . ., and all employees who become members after that date, shall, as a condition of employment , maintain their membership in the Union in good standing . . . ." Since this languages does 41n the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." s Insofar as their opinion may be taken as a reversal of the Trial Examiner's admission into evidence of an oral understanding to controvert the plain meaning of the 1950 contract, I agree with the majority of the Board. See Petersen & Lytle, 60 NLRB 1070; New Castle Products, Inc., 99 NLRB 811; Seattle Bakers' Bureau, Inc., 101 NLRB 1344. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not, as -required by the proviso to Section 8 (a) (3), allow a 30-day grace period to employees who were either members of the Union on November 1, 1948, or became members there- after , but who subsequently discontinued their membership and therefore were not members of the Union on the effective date of the 1950 contract , I believe the provision to be defective and illegal. The majority apparently concedes that discontinuity of mem- bership in the Union before 1950 would render the 1950 contract illegal. The majority seeks, however , to avoid the application of this principle on the hypothesis that the 1949 contract, the immediate precursor of the 1950 contract , assured that all employees who were union members as of November 1, 1948, or who thereafter became union members, continued their membership until the effective date of the 1950 contract. They would thus bring this case within the rule of Krause Milling, 6 where the Board held that the 30 -day grace period does not extend to employees who are union members upon the effective date of a union - security provision . Even were I willing to accept Krause Milling as a correct statement of the law, I am unable to agree that the 1949 contract supports the majority ' s position. Factually , the 1949 contract did not assure continuity of union membership between November 1, 1948 , and the effective date of the 1950 contract . The 1949 contract was dated November 1, 1948, but in fact was executed on July 11, 1949. It contained a clause identical to the above -quoted clause of the 1950 contract , requiring "present employees " who were union mem- bers on November 1, 1948, or who became such thereafter, to maintain their membership in the Union . In addition , section 1 (c) of article IV provided: The provisions of this Section 1, Subsection ( a) and (b) above, of Article IV of the Agreement [the union- security provisions ], shall become effective on the date of the sign- ing of this Agreement , only if the Union complies with the provisions of law regarding Union security and obtains legal authorization to conclude such Union security provi- sion , if such compliance and authority is necessary under the law. It further appears that under the then applicable law the Union was authorized for the first time to execute a union-security provision on October 29, 1949. T It is thus apparent that , by the terms of section 1 (c) of article IV, the union- security provisions of the 1949 contract did not become effective on July 11, 1949. Moreover, in view of that clause, it is extremely questionable whether the union- 6 Krause Milling Co., 97 NLRB 536. 7 Public Service Electric and Gas Co. of the State of New Jersey, Case No. 2-UA-5244. UTILITY CO- WORKERS' ASSOCIATION 853 security provisions ever had operative effect, for there is nothing in the clause to indicate that they were to become effec- tive after the execution date of the contract had passed. More- over , even by reading into section 1 ( c) of article IV something which is not explicitly stated therein, the most that can be said is that the union-security provisions might have become effective at the earliest on October 26, 1949. Obviously, then, if the union- security provisions of the 1949 contract never became operative , there was never in being prior to 1950 a contract which could have prevented discontinuance of union membership . If, on the other hand, the union - security provi- sions were in fact operative after October 26, 1949, there nevertheless remained a period of some 11 months following November 1, 1948, during which time there likewise was in existence no contract which could have prevented discontinu- ance of union membership. There is still another reason why the 1949 contract may not be relied upon to show a continuity of union membership until the effective date of the 1950 contract. The 1949 contract, like the 1950 contract , was invalid because it , too, did not grant the 30-day grace period to those employees who had discon- tinued their union membership before its effective date.8 In the case of the 1949 contract, moreover, there was no prior contract to which it is possible to advert in order to predi- cate a hypothesis of legality . Nor was the legal deficiency of the 1949 contract cured, as the Trial Examiner found, by the above-quoted language of section 1 (c) of article IV. There is nothing in the latter clause to justify the tortured conclusion drawn therefrom by the Trial Examiner that the November 1, 1948, date was thereby written out of the contract. On the contrary, as already indicated , that clause merely eliminated, or at the most deferred , the operation of the union-security provisions as they were written, if on the date of the contract's execution the Union had not complied with statutory re- quirements. The majority also asserts in support of its position that there is no factual evidence of discontinuance of union membership before the effective date of the 1950 contract . The lack of such evidence, I believe , is of little significance . The answer to the majority' s assertion is, of course , that there is likewise no factual evidence that some employees did not drop their union membership -- an hypothesis which is the more plausible in view of the demonstrated factual and legal deficiencies in the 1949 contract. 8The majority asserts that the Board is "barred" by Section 10 (b) from "passing on" the 1949 contract. I agree that Section 10 ( b) precludes the Board from predicating an un- fair labor practice finding on the execution or maintenance of the 1949 contract. However, Section 10 (b) does not preclude the Board from a consideration of the 1949 contract for the purpose of throwing light upon the 1950 contract. See N L. R B v. Luzerne Hide ,9, Tallow Co , 188 F 2d 439, 443 (C. A 3), cert. denied 342 U.S. 868; Axelson Manufacturing Company, 88 NLRB 761, 765-766; McCann Steel Company, 106 NLRB 41. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I cannot accept the majority view that the patent invalidity of the union-security provisions of the 1950 contract is cured either by reference to the 1949 contract or by the silence of the record itself. I would, therefore, find that the Respondent violated Section 8 (b) (1) (A) and 8 (b) (2) not only by its actions with respect to the charging parties, but also by executing and maintaining the maintenance-of-membership provision of the 1950 contract. Member Beeson took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL MEMBERS OF UTILITY CO-WORKERS' ASSOCIATION and ALL EMPLOYEES OF PUBLIC SERVICE ELECTRIC AND GAS COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT threaten to cause or attempt to cause Public Service Electric and Gas Company to discharge A. G. Sandusky, Edwin W. Collar, or Peter Sexton, or any other employee or employees, because of their failure to pay dues, to or maintain their membership in, our Association , except to the extent that such action on our part may be justified by the specific, permissible and applicable terms of an agreement with Public Service Electric and Gas Company as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT in any like or related manner restrain or coerce employees of Public Service Electric and Gas Company in the exercise of their right to refrain from joining or maintaining their membership in our Associa- tion, except to the extent that such right may be affected by the specific, permissible, and applicable terms of an agreement with Public Service Electric and Gas Company, as authorized in Section 8 (a) (3) of the National Labor Relations Act. UTILITY CO-WORKERS' ASSOCIATION, Union. Dated ................ By.................................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. UTILITY CO-WORKERS' ASSOCIATION Intermediate Report and Recommended Order STATEMENT OF THE CAS 855 The amended complaint in the instant case alleges , in substance , and the Respondent's answer denies , that the Respondent labor organization committed unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, (a) by enforcing an illegal maintenance- of-membership provision of its contract with Public Service Electric and Gas Company (a New Jersey corporation herein called the Company); and (b) by threatening and attempting, under the aforesaid contractual provision, to cause the discharge of employees A.G. Sandusky, Edwin W. Collar, and Peter Sexton between March 21, 1952, and April 14, 1952, because they had failed to pay dues to, and maintain membership in, the Respondent , although these three employees were not then members of the Respondent nor, even under the terms of the con- tract, required to be or remain members of the Respondent. From the evidence adduced and the arguments and representations made by counsel at a hearing held before the undersigned Trial Examiner at Philadelphia, Pennsylvania, on February 10 and 11, 1953, it appears that the issues in the instant case are: (1) Whether the maintenance-of-membership clause in 1948 and 1950 contracts between the Respondent and the Company was permissible under the proviso to Section 8 (a) (3) of the Act; and (2) whether , assuming it was legal, employees Sandusky , Collar, and Sexton , by signing bargaining authorizations to, and applications-for-membership in, the Respondent in October or November 1949 became members of the Respondent and were thereafter required to main- tain membership in the Respondent. i Upon the entire record in the present case , and from his observation of the witnesses, the undersigned makes the following• FINDINGS OF FACT I. THE CONTRACTS AND THEIR UNION-SECURITY CLAUSES Respondent is a labor organization organized by, and consisting of, employees in the Company's 21 commercial offices, including 1 located at Burlington, New Jersey. As the certified exclusive bargaining representative of the employees in all the Company's com- mercial offices (Case No. 2-RC-787) with authority by vote of a majority of them in a Board-conducted election to execute the type of union-security contract permitted by Section 8 (a) (3) of the Act (Case No. 2-UA-5244), the Respondent entered into successive 2-year contracts with the Company, dated November 1, 1948, and November 1, 1950, but in fact executed on July 11, 1949, and December 28, 1950, respectively. By their terms, each of these contracts, including their union-security clauses, was to continue in effect beyond its 2-year period during negotiations for an ensuing contract.2 Moreover, by almost iden- tical language, article IV of both contracts provided in substance that: (1) As a condition of employment, those "present employees" who were members of the Respondent on November 1, 1948, or who became members thereafter, were to be required to maintain their membership in the Respondent "with respect to initiation fees and dues." (2) As a condition of employment, "new employees" were to be required to join the Re- spondent within 30 days after their hire and thereafter maintain their membership. (3) Upon the request of the Respondent, the Company would terminate the employment of any member of the Respondent who, having allowed his membership to lapse for non- i There appears to be no question that the Company, which is a public utility engaged in the sale and distribution of gas and electric power, is engaged in a business affecting commerce nor, therefore, that the Board has and should exercise jurisdiction in the present case. Indeed, the Board, in a representation proceeding, certified the Respondent as the exclusive bargaining representative of the employees involved in the present proceeding (81 NLRB 1191), and also certified a majority vote in a union-security election, which con- ferred authority upon the Respondent as bargaining representative to execute a union-se- curity agreement of the type permitted by Section 8 (a) (3) of the Act. (Case No. 2-UA-5244). 2 See article XX, section 2, of each of these contracts. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payment of initiation fees or dues, further failed "to reestablish his membership" within 15 days after written notice from the Respondent to him and to the Company.$ The General Counsel contends that the maintenance-of-membership provision of the 1950 contract was invalid since it required maintenance of membership or the reestablishment thereof as a condition of employment not merely on the part of employees who were members on the date the 1950 contract was executed (as the Board has held would be proper)4 but also on the part of employees who had been previously members of the Respondent, i.e., on or since November 1, 1948--thus giving the provision a retroactive effect which the Board has held in somewhat similar cases to be improper.5 In making this contention, however, the General Counsel has failed to consider the history and continuity of the provision under both the 1948 and 1950 contracts. By a provision incorporated in the 1948 contract;6 although not in the 1950 contract, it was made clear that the maintenance-of-membership provision as to current employees and the union-shop provision with respect to new employees were to be effective, not on 3Article IV of both contracts contains the following language except for the bracketed phrase in section 1 (b), which appears in the 1948 contract but not in the 1950 contract: ARTICLE IV Maintenance of Membership Maintaining Membership Sec. 1. (a) Present Employees All employees who, on November 1, 1948, were members of the Union in good standing with respect to initiation fees and dues, and all employees who become members after that date, shall, as a condition of employment, maintain their membership in the Union in good standing with respect to initiation fees and dues for the period of this Agreement. (b) New Employees All persons, except temporary employees, hired on or after the date of the signing of this Agreement,] for job classifications within the bargaining unit shall, as a condi- tion of employment, be required to affiliate with the Union within 30 days after the date of their employment and maintain membership in the Union during the period of the Agreement. Notice of Lapse in Membership Sec. 3. In the event that a Union member allows his membership in good standing to lapse for nonpayment of initiation fees or dues, he shall receive due notice in writing from the Secretary of the Union, or from the Secretary of the Local Council, with a copy to the Commercial Manager, and shall have 15 days thereafter in which to reestablish his mem- bership. Should he fail to reestablish his membership in good standing with respect to initiation fees or dues, within the said period, his employment, upon request by the Union, shall be terminated. 4Krause Milling Co., 97 NLRB 536; Southland Paper Mills, 97 NLRB 896; Kuner Empson Co., 97 NLRB 898; General Chemical Division, 97 NLRB 1248. 5See e.g., New York Shipbuilding Corp., 89 NLRB 1446; General American Aerocoach, 90 NLRB 239. 6Section (1) (c) of article IV in the 1948 contract provided that The provisions of this Section 1 Subsections (a) and (b) above, of Article IV of the Agreement, shall be effective on the date of the signing of this Agreement, only if the Union complies with the provisions of law regarding Union and obtains legal authori- zation to conclude such union security provisions, if such compliance is necessary under the law. UTILITY CO-WORKERS' ASSOCIATION 857 November 1, 1948, the date of the contract, but "on the date of the signing of this Agree- ment." Furthermore, according to the credited, uncontradicted testimony of Morgan Sweeney, the Respondent's president, although the Respondent's representatives insisted on retaining the November 1, 1948, date in the membership clause of the 1950 contract as a "monument" of their achievement, it was agreed by the representatives of the parties, as it had been when they negotiated and then conferred concerning the interpretation of the 1948 clause, that the determinative initial date for the requirement of maintenance of membership was the date of the execution of the 1948 contract (July 11, 1949) rather than November 1, 1948. In the opinion of the undersigned, the construction given to the maintenance-of-member- ship provision in and by the 1948 contract was extended to the maintenance clause in the 1950 contract. As a result, the maintenance-of-membership clause in the 1950 contract must reasonably be construed, like that of the 1948 contract, as requiring maintenance of member- ship by old employees as a condition of continuing employment only in the cases of old employees who were members of the Respondent on July 11, 1949 (the date the 1948 contract was executed) or who thereafter became members. Since, by its terms, the 1948 contract continued in effect until the 1950 contract was executed, the two contracts made continuous, identical provision for maintenance of membership as a condition of employment. When so viewed, the 1950 contract did not have the improper retroactive effect ascribed to it by the General Counsel. The undersigned therefore rejects the General Counsel's contention and concludes that the maintenance-of-membership clause in the 1950 contract was valid and that the Respondent, so far as it may have sought to enforce it in accordance with the understand- ing of the parties , committed no unfair labor practice. There remains for consideration, of course, the question of whether, in the light of the relevant evidence, the maintenance-of-membership clause was properly applied to employees Sandusky. Collar, and Sexton. II. THE THREATS OF DISCHARGE UNDER THE MAINTENANCE- OF-MEMBERSHIP CLAUSE IN 1952 A. The structure of the Respondent and membership therein The Respondent's constitution provides for its organization upon the basis of local "Coun- cils ," or "Affiliates," each consisting of 10 or more members, for whom the Respondent has issued a charter.7 Thus, the constitution provides generally that all employees of the Com- pany or its affiliated or subsidiary companies shall be eligible for membership in the Re- spondent "upon acceptance of membership in either a Council or an Affiliate. ..."8 Further specific provisions relating to membership require that applications be made "on a form provided by" the Respondent;9 that "every application must be approved by the Council or Affiliate concerned;i10 and finally that "No applicant shall be considered a member of this Association until such applicant has paid his first month's dues in addition to whatever initiation fee his Council or Affiliate by-laws provide." 11 On their face, the provisions of the Respondent's constitution concerning the election of its general officers, its executive committee, and its executive council also reflect the general scheme wherein the local council or affiliate is the essential, basic unit. For the con- stitution provides for the election of the Respondent's general officers and trustees, who together constitute the executive committee, by delegates chosen by and for the members of each of the local councils; and for the composition of the executive council by these offi- cers and, in addition, by the chairmen of the local councils. Thus, no provision is made in the Respondent's constitution for the participation of its members in the election of officers or of the executive council, except as members of, and through, their respective local coun- cils. Indeed, the Respondent's constitution itself gives no recognition to possible member- ship or substantial membership rights, except through membership in, through, and with the approval of, a local council or affiliate. 7Articles XVII and XIX; 8 Article IV and article V, section 1. 9Article IV, section 3. iOArticle IV, section 4. 11 Article IV, section 5. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, Walter F. Radley, the Respondent's executive secretary, testified that, in prac- tice though without sanction of any specific, enabling constitutional provision, the Respondent, through its executive council, has admitted as "members at large" the employees in offices of the Company where no local council is in existence, and has, in such cases, dispensed not only with the constitutional requirement of approval by a local council of each member- ship application, but also by a suspension of dues, with the further requirement that the applicants pay their first month's dues before they may be considered to be members of the Respondent. According to Radley's testimony, and the Respondent's contention, the power of the exe- cutive council thus to dispense with the specific constitutionally prescribed conditions pre- cedent to membership is to be found in the provision of article XII, section 3 of the consti- tution that, "The Executive Council may act in any case where a decision on a dispute is sought, to interfere and enforce the Constitution and By-Laws of this Association, and ini- tiate any program in the interest of the membership." Regardless of the merit or lack of merit to this contention, it is clear from Radley's testimony, and the undersigned accordingly finds, that the Respondent has made no attempt, constitutional or otherwise, to accord to "members at large" the substantial rights of mem- bers of the local councils to participate in the election of the Respondent's general officers, its executive committee, or its executive council, and so, even indirectly, to exercise any influence in the conduct of the Respondent's affairs. B. The 1949 membership applications of Sandusky, Collar, and Sexton, and the Respondent's subsequent action and inaction with respect thereto Preparatory to the creation of a council for the employees in the Company's Burlington office, some of whom had previously been members of the Respondent but had withdrawn from membership and had briefly been members of an AFL union, the Respondent held 2 organizing meetings in the fall of 1949, the first of which was attended by 5 Burlington employees and the second by 7 of them. Following these meetings, either in the latter part of October or in November 1949, 7 of these Burlington employees, including A. G. Sandusky and Edwin W. Collar (both of whom had worked for the Company for more than 20 years), and also Peter Sexton (who had worked for the Company for more than 2 years) signed cards whereby they applied for membership in tliie Respondent and designated it as their bargaining representative. The Respondent has never succeeded in securing membership applications from 10 or more of the employees in the Burlington office, and has not, therefore, chartered a local council for that office. On November 28, 1949, upon the recommendation of its executive committee which reported "a scant attendance" at the recent Burlington organizational meetings, the Respondent's executive council passed a resolution "that the collection of dues [from Burlington applicants] be waived until a council is formed and set in action in Burlington." With respect to Sandusky. Collar, and Sexton, it is undisputed that (1) until January 18, 1952, the Respondent never notified them whether their 1949 membership applications had been accepted; (2) the Respondent never gave them notice of the 1949 "waiver" of dues; (3) none of these 3 men paid or attempted to pay dues during 1949, 1950, 1951, or the first quarter of 1952; (4) after the 1949 organizational meetings which preceded their signing of the membership applications, none of the 3 men attended any meetings of the Respondent; and (5) the Respondent never did hold any further meetings for the Burlington employees. However, the Respondent contends in substance that, in spite of the Respondent's omission to notify the men of its acceptance of their applications and of the temporary suspension of their dues obligation, it recognized the status of these men as members and indicated that fact to them by the manner in which it treated them. In support of this contention, Executive Secretary Radley testified that their names were placed on the Respondent's mailing list as "members at large" and, accordingto his instructions, were to be sent copies of such notices as amendments to the constitution and annual financial statements. But Radley was unable to testify that these notices and statements were actually sent to these men. All 3 men, on the other hand, denied ever having received any copies of constitu- tional amendments. The only notice or statement as to which there was any evidence of re- ceipt by any of the 3 men was the 1951 financial statement, which could not have been mailed until January 1952. Although Collar denied having received it, Sandusky testified that he had UTILITY CO-WORKERS' ASSOCIATION 859 received it, and Sexton testified that he might have received it. The undersigned regards this evidence as insufficient to show a recognition by the Respondent of the status of these men as members or as an implicit acceptance by the Respondent of their 1949 membership applications. As to Collar, there is additional evidence upon which the Respondent relies to show a manifestation of its acceptance of his 1949 membership application. It contends, in sub- stance, that Collar became the representative or "contact man" of the Respondent among the Burlington employees , and that he also sought for himself , as a member , the Respondent's aid in attempting to secure a raise and a promotion . Upon this basis , the Respondent'as- serts, there is no question but that it recognized Collar as a member and that Collar under- stood that he was so regarded. The evidence in question, however, does not justify the conclusion either that Collar acted as a member and representative or agent for the Respond- ent or that he sought benefits as a member of the Respondent. All the evidence shows is that: (1) Contemporaneously with his own signing of the 1949 membership application, he procured applications from several other employees; (2) for a short period after he signed his 'own membership application, James L. Shaunnessy, the Respondent's Burlington or- ganizer, called Collar and obtained information as to job postings and, in 1 case, as to the qualifications of a particular fellow employee who had applied for the job; and (3) on 2 such occasions Collar asked Shaunnessy for help, first in getting a change in his own job title, and then to secure a promotion. However, Collar was an employee in the bargaining unit represented by the Respondent and entitled to representation and help regardless of whether he was a member of the Respondent. And acceptance by a representative labor organization of the cooperation of an employee in the bargaining unit does not indicate that the labor organization regards and accepts the cooperating employee as a member . The undersigned therefore rejects the Respondent's contention that its relationship with Collar after his 1949 application shows that it had accepted his application and treated him as a member. C. The. Respondent ' s 1952 threats and attempts to procure Sandusky ' s, Collar's , and Sexton ' s discharges On January 18, 1952, and thus more than 2 years after Sandusky, Collar, and Sexton had signed their membership applications , Executive Secretary Radley of the Respondent in- formed them by letter that monthly dues would become payable beginning with February 1, 1952. On March 21, 1952, Radley again wrote to the 3 men , calling their attention to the fact that they had failed to pay their monthly dues beginning with February 1, as requested in his earlier letters to them , and warning them "of the seriousness of the provisions of Article IV, section 3 of the present Company-Union Contract [making failure to maintain membership the basis for discharge] which we would be required to invoke if your dues are not brought up to date by the first of April." In spite of these letters from Radley, none of the three men paid any dues by April 1, 1952. Sexton made no response to these letters . In separate letters mailed to the Respond- ent on March 27 , 1952, Collar and Sandusky in substance expressed surprise that after so long a time, in which they had heard nothing from the Respondent , the Respondent sought to treat them as members and to require them to pay dues. On April 14, 1952, Radley sent the following identical letters to Sandusky, Collar, and Sexton: Since you have permitted your membership in good standing in this association, as iutlined in Article VII, section 1 of its constitution and by-laws to lapse; I must with regret, notify you that you are hereby subject to the provisions of Article IV, section 3 of the agreement with the Company. On the same day, Radley sent copies of the foregoing letters to Manager J. L. Fuller of the Company 's Burlington office , together with the following letter relating to Sandusky, and similarly worded letters relating to Collar and Sexton: Mr. A. G. Sandusky, an employee of the Burlington Commercial Office, has per- mitted his membership in good standing in this association, as outlined in Article VII, section 1, of its constitution and by-laws to lapse. Therefore, it is with regret 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that I must notify you that he is subject to the provisions of Article IV, section 3 of the agreement between the Company and the Union. Enclosed you will find a copy of the letter which was sent to Mr. Sandusky in noti- fication of his status. In the next few days, Manager Fuller spoke to Sandusky, Collar, and Sexton, telling them in effect that unless they paid their dues, he would have to discharge them. Thereupon each of the 3 men paid the Respondent 1 month's dues under protest. As a result, they have not been discharged by the Company. D. Conclusions Upon the facts already found, it is clear, and the undersigned accordingly finds, that the Respondent not only threatened , but actually attempted to cause the Company to discharge Sandusky , Collar, and Sexton under the maintenance -of-membership clause of its contract with the Company , because these three employees , whom it claimed to be members upon the basis of their 1949 applications , refused to pay dues on and after February 1, 1952. In essence, what the Respondent did was to threaten and attempt to cause the Employer to discriminate against these employees in regard to their tenure of employment , with the necessary and intended result of encouraging membership in the Respondent labor organi- zation. In view of the union -security proviso to Section 8 (a) (3) of the Act, the Respondent's action would have been permissible under the valid maintenance -of-membership clause, if these 3 men were actually members of the Respondent. If, however, they were correct in denying that they were members, the maintenance-of-membership clause did not apply to them nor, therefore, justify the Respondent's action, and the Respondent must be held to have committed unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act by threatening and attempting to cause the Employer to discriminate against these employees in violation of Section 8 (a) (3). For the reasons which follow, the under- signed has come to the conclusion that, notwithstanding their submission of membership applications in 1949 , the 3 men did not become members of the Respondent within the mean- ing of the maintenance -of-membership clause of the Respondent's contract with the Com- pany, and that, therefore , the Respondent , by threatening and attempting to procure their dis- charges , violated the Act. It has been noted in the analysis already made that the Respondent 's constitution makes provision for the acquisition of, and the exercise of the rights of , membership only through membership in a local Council , and that two of the express conditions precedent to mem- bership are the approval of a council and the payment of the applicant's first month's dues. To any applicant for membership. these are the conditions and terms with which he might reasonably be expected to acquaint himself, and which therefore must be regarded as nor- mally controlling whenever the question may arise as to whether any given applicant has in fact and as a matter of right, become a member . While perhaps the Respondent 's executive council had the power under article XII , section 3 , to "waive" these conditions, as it ap- parently attempted in the case of the Burlington applicants , by providing for "members at large" with a temporary suspension of dues payments, 12 the effectiveness of the "waiver" in its bearing upon whether an applicant became a member would, in any event, seem clearly to depend upon its communication to the applicant so that he would know of his admission to membership in spite of his failure to meet the usual, constitutional conditions for their admission. In the cases of Sandusky, Collar, and Sexton, they not only received no notice from the Respondent of the "waiver" of the usual conditions with respect to admission, but for more than 2 years received no express or unplicit acceptance of their applications. On this score alone the undersigned is impelled to find that Sandusky , Collar, and Sexton did 12 The undersigned believes it unnecessary to decide in the present case whether, upon a proper construction of article XII, section 3 of the Respondent's constitution , its executive council had the power to "waive " the constitutionally prescribed conditions precedent to membership, or to create "memberships at large" in addition to memberships through local councils. UTILITY CO-WORKERS ' ASSOCIATION 861 not become members of the Respondent by reason of their submission of their 1949 appli- cations for membership. There is an additional, equally cogent reason for coming to this conclusion. As has been noted, "memberships at large," even assuming that the Respondent could properly have cre- ated them under its constitution, conferred none of the substantial membership participation and voting rights enjoyed by members of local councils under the constitution. In the opinion of the undersigned, the provisions of the Respondent's and the Company's contract making maintenance of membership a condition of employment in the cases of old employees, must be construed as referring to the full and only membership status provided for by the Respondent's constitution. For the contract itself, which would afford the sole basis under the Act for excusing the Respondent's action, gives no definition or qualification in its use of the terms "member" and "membership." 13 Since Sandusky, Collar, and Sexton could have been regarded at best as "members at large," without the substantial mem- bership rights of members of local councils, they were not "members" within the only possible, reasonable meaning to be given to the contract, and the contract therefore affords no justification for the Respondent's insistence that they "maintain" membership or suffer discharge. For the foregoing reasons, the undersigned concludes that by threatening to cause, and at- tempting to cause, the Company to discharge Sandusky, Collar, and Sexton because they re- fused to pay dues in 1952 and "maintain" their membership, the Respondent, in violation of Section 8 (b) (1) (A), restrained and coerced these employees in the exercise of their rights guaranteed in Section 7 of the Act, and also, in violation of Section 8 (b) (2), attempted to cause the Company to discriminate against them in violation of Section 8 (a) (3) of the Act. M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section II, 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. Upon the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. By threatening to cause, and attempting to cause, the Company to discharge A. G. Sandusky, Edwin W. Collar, and Peter Sexton because they refused to pay dues and "main- tain" their membership in the Respondent, Respondent restrained and coerced these em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, thereby committing an unfair labor practice within the meaning of Section 8 (b) (1) (A); and also attempted to cause the Company to discriminate against them in violation of Section 8 (a) (3) of the Act, thereby committing an unfair labor practice within the meaning of Section 8 (b) (2) 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. 3. The Respondent has not committed unfair labor practices within the meaning of the Act, by maintaining in force the union-security provisions contained in its contracts with Public Service Electric and Gas Company, which were dated November 1, 1948, and Novem- ber 1, 1950. [Recommendations omitted from publication.) 13Cf. Public Service Company of Colorado, 89 NLRB 418, in which the Board found that less than full membership (e.g., payment of a monthly working fee "for the support of the bargaining unit") might specifically be made a condition of employment within 60 days after hire or the date of signing the contract.