Gladys A. Juett

GLADYS A. JUETT, ETC. 395 Gladys A. Juett, Administratrix of the Estate of C. D . Juett, De- ceased and Local No. 181 , International Union of Operating Engineers, AFL-CIO and District 50, United Mine Workers of America, Party to the Contract. Case No. 9-CA-2243. May 28, 1962 DECISION AND ORDER On August 9, 1961, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Na- tional Labor Relations Act as amended, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report, together with a supporting brief, relating only to the Trial Examiner's failure to recommend the reimbursement of dues and fees which he contends were exacted illegally. No exceptions were filed by the Respondent. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and Hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications. C. D. Juett, a road and bridge building contractor, and predecessor of the Respondent, had bargained with District 50, United Mine Workers, as the representative of his employees and had, prior to the events in issue here, entered into a series of bargaining contracts with District 50.1 Juett obtained a construction contract for a State high- way project in April 1960, and thereafter transferred to this project a number of his employees from other jobs and began to hire new employees. Work on the project began in May. As of this time, Re- spondent and District 50 were parties to an agreement which did not contain a union-security clause but which provided for a checkoff of dues and fees where authorized by employees. On June 26, 1960, this agreement was superseded by one which required employees who were members of the Union in good standing on the effective date to remain in good standing, while those who were not members on that date were required to become members on the 7th day following the effective date of the agreement. The agreement also provided that it was to be effective retroactively to April 20, 1960. 1 There is no allegation or evidence that the representative status of District 50 had been obtained improperly , nor did the General Counsel seek in this proceeding to establish a violation of Section 8(a) (2) 137 NLRB No. 47. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As new employees were hired for the project they were required, in filling out their employment application, Form 1, to authorize the Employer to check off dues, fees, and assessments levied by any union which maintained a contract and checkoff system with the Employer. Some applicants for employment were also told when they were hired to sign Form 528, a combined membership application and checkoff authorization of District 50. We agree with the Trial Examiner that Respondent violated Section 8(a) (1) and (3) by entering into and maintaining the 1960 agreement because it contained a retroactive union-security clause and because, until its amendment a year later, it required union membership on instead of after the 7th day of employment, in accordance with Sec- tion 8(f) of the Act. We also agree with his conclusion that it was unlawful for the Employer to require prospective employees to sign the checkoff authorizations on Form 1 and to require some of them to sign Form 528 at the time they applied for jobs. Although not agreeing wholly with the General Counsel's excep- tions, we believe, however, that the Trial Examiner erred in relying on our decision in Duralite Co., Inc., 132 NLRB 425, in concluding that these violations did not require any reimbursement of dues to Respondent's employees. We find merit in the General Counsel's ex- ceptions insofar as they relate to reimbursement for employees hired on and after June 20, 1960, who were not already members of District 50.2 In the Duralite case a majority of the Board found "no evidence in the record . . . that Duralite employees were coerced into joining or paying dues to" the assisted union involved, and thus interpreted the Supreme Court decision in Local 60, United Brotherhood of Carpenters and Joiners of America (Mechanical Handling Systems) v. N.L.R.B.,3 as foreclosing a general reimbursement of clues remedy in that case. However, as we have recently noted in Lapeer Metal Products Co.,. 134 NLRB 1518, the decision of the Supreme Court preserved the Board's authority to order a reimbursement remedy in order to remove the consequences of violations on record evidence that employees were illegally coerced into joining or remaining members, or joining the union "with a view of obtaining work" as well as in cases where the union was unlawfully created. Although it is true, in the instant case, that no prospective or old employee was forced to join an assisted union, we are satisfied from the record that prospective employees, were coerced into agreeing to the checkoff provisions of Form 1 in order to obtain employment with Respondent. We recognize that those applicants who were hired after June 26, 1960, were obligated to pay dues and initiation fees after the 7th day of their employment, 2 The charge herein having been filed on December 20, 1960 , the period in which viola- tions are cognizable under Section 10(b) began on June 20, 1960 3 365 U.S. 651. GLADYS A. JUETT, ETC. 397 since Respondent was engaged primarily in the building and construc- tion industry and otherwise met the requirements of Section 8(f) by its agreement of June 26, 1960, with District 50. However, by making the union-security provision of this agreement retroactive to April 20, 1960, the Respondent illegally coerced employees who were not already members of District 50 into paying union dues and fees at a time when they were not legally obligated to do so. With respect to those employ- ees who were transferred from other projects of the Employer and who were already members of District 50, we find no evidence that the checkoff of dues to their union was imposed as the price of obtaining or retaining their jobs.' THE REMEDY Since it was the Employer's practice to require execution of mem- bership applications in, and checkoff authorizations for, District 50 at the time of hire, it is clear that all employees who were not already members of District 50 were thereby coerced in violation of their rights under the Act. Accordingly, in order to expunge the coercive effect of the illegal exaction of dues, we shall require the Respondent to reim- burse those of its employees who were employed at the project involved herein and who were not, on the date of their employment, already members of District 50, for all dues and fees checked off and paid to District 50 for all periods in which such dues and fees were not legally required to be paid. Specifically, we shall require Respondent to reim- burse employees hired any time before June 26, 1960, who were not already members of District 50, for all dues checked off between Julie 20 and July 4, 1960 (7 days after the date on which the agree- ment was executed and, therefore, the earliest date upon which new members of District 50 were obligated to pay dues), and for all initia- tion fees checked off during that period from employees who left Respondent's employ on or before July 4, 1960.5 We shall also require Respondent to reimburse all employees hired after June 26, 1960, who were not already members of District 50, for all dues which they were required to pay for the first 7 days of their employment, and for all initiation fees checked off from such employees who did not work at least 7 days.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 4 Paul Buizevieh et at., d/b/a MV "Liberator," 136 NLRB 13 5 Cadillac Wire Corp , 128 NLRB 1002, 1007, and Double A Products Company, 134 NLRB 222. 6 Member Rodgers would find that the unlawful contract and illegal practices of the Respondent inevitably coerced all employees of the Respondent at this project to become or remain members of the Union Accordingly, as a remedy to expunge the coercive effect of such unlawful conduct, he would direct the Respondent to reimbuise all dues and fees collected from all its employees pursuant to the unlawful contract from a date 6 months prior to the filing of the charge herein. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board orders that the Respondent, Gladys A. Juett, Admin- istratix of the Estate of C. D. Juett, Deceased, her officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist : (a) Encouraging membership in District 50, United Mine Workers of America, or in any other labor organization, by : (1) Requiring employees or applicants for employment as a condi- tion of employment to sign checkoff authorizations for, or applications for membership in, District 50, United Mine Workers of America, or in any other labor organization. (2) Giving effect to the retroactive portions of the union-security clause in the contract signed June 26, 1960. (3) Deducting dues, fees, or other moneys from employees' earnings for the aforesaid or any other labor organization unless such em- ployees shall have executed a valid checkoff authorization before the commencement of such deductions. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Reimburse all employees for dues and fees illegally exacted from them, in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (b) Post at its place of business at Winchester, Kentucky, and at its jobsite at Breathitt County, Kentucky, copies of the notice attached hereto marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, after being duly signed by the Respondent, shall be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecutive days there- after in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. In 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 " GLADYS A. JUETT, ETC. APPENDIX NOTICE TO ALL EMPLOYEES 399 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, as amended, I hereby notify you that : I WILL NOT encourage membership in District 50, United Mine Workers of America or any other labor organization by : (a) Requiring applicants for employment as a condition of em- ployment to sign checkoff authorizations for, or applications for membership in, the above-named or any other labor organization. (b) Giving effect to the retroactive portions of the union- security clause in the contract with District 50, United Mine Workers of America, signed June 26, 1960. (c) Deducting dues, fees, or other moneys from employees' earnings for the aforesaid or any other labor organization unless such employees shall have executed a valid checkoff authorization before the commencement of such deductions. I WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of their rights to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. I WILL reimburse my employees for dues and fees illegally ex- acted from them. GLADYS A. JUETT, ADMINISTRATRIX OF THE ESTATE OF C. D. JUETT, DECEASED, Employer. 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. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth & Vine Streets, Cincinnati, Ohio; Telephone Number, Dunbar 1-1420, if they have any question concern- ing this notice or compliance with its provisions. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Charges in the above-entitled case having been filed and duly served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, was held in Winchester, Kentucky, on July 11, 1961, before the duly designated Trial Examiner. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. General Counsel argued orally and filed proposed findings, conclusions, and remedial recom- mendations. The Respondent filed a brief. Disposition of the Respondent's motion to dismiss the complaint, upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE DECEDENT AND THE RESPONDENT The following allegations of the complaint are admitted by the answer and are here found as facts: .(1) Prior to January 26, 1961, the Decedent (C. D. Juett) was engaged as a general contractor in the construction of highways and bridges in the State of Ken- tucky. During the calendar year 1960 the Decedent received in excess of $500,000 from the State of Kentucky for the construction of State highways and bridges which connected with and constitute essential links in the system of interstate high- ways. During the same period the Decedent had a direct inflow in interstate com- merce of equipment, materials, and supplies of a value in excess of $50,000 which were purchased by and shipped to him directly from points outside of said State. (2) On or about January 26, 1961, the Decedent died. At the time of his death he was a resident of Clark County in said State. (3) On or about January 31, 1961, the Respondent was duly appointed Ad- ministratrix of the estate of the Decedent by the county court of said county then having jurisdiction over the administration of estates of decedents who were residents of said county at the time of their demise. (4) On or about January 31, 1961, said court authorized, empowered, and directed the Respondent, as such Administratrix, to carry on the Decedent's said business operations, in the administration of said estate,, for a period of not to exceed 2 years from January 26, 1961, and the Respondent at all times thereafter has been and is carrying on said business operations for said estate in her capacity as such Administratrix. (5) At all times material to the issues herein prior to his death, the Decedent was an "employer" as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act. (6) At all times material to the issues herein subsequent to her appointment as Administratrix the Respondent in her capacity as such Administratrix has been and is an "employer" as defined in Section 2(2) of the Act, engaged in commerce and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Both Local No. 181, International Union of Operating Engineers, AFL-CIO, and District 50, United Mine Workers of America are labor organizations as defined by the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and issues The chief issues raised by the complaint stem from the execution in June 1960, and maintenance thereafter of an exclusive collective-bargaining contract between the Decedent and the UMW. In substance, it is General Counsel's contention that employees were unlawfully coerced and discriminated against by: (1) the execution and maintenance of said contract; (2) requiring as a condition of employment signing of authorizations for GLADYS A. JUETT, ETC. 401 the checkoff of UMW fees, dues, and assessments; and (3) deducting dues and other moneys from wages whether such deductions had been authorized or not. A minor issue involves the allegation that Superintendent Eugene Juett, to dis- courage membership in the Charging Union, threatened to find an excuse to dis- charge an employee. B. Facts as to the contract and checkoff The following facts are not in dispute; being chiefly established by stipulation or undisputed testimony: (1) In April 1960, the Decedent was awarded a contract to construct a portion of a Kentucky highway. Work on the project was begun in May 1960, and was still in progress at the time of the hearing. (2) Hiring of new employees began on May 2, 1960, and at the same time, apparently, an undetermined number of his regular employees were transferred by the Decedent from other jobs to this one. (3) On June 26, 1960, the Decedent and UMW executed a 2-year contract retroactively effective to April 20, 1960. (4) This contract, until April 7, 1961, contained the following provision: Art. III, sec. 3. It shall be a condition of employment that all employees of the Employer covered by this agreement who are members of the Union in good standing on the effective date of this agreement shall remain members in good standing and those who are not members on the effective date of this agreement shall on the seventh day following the effective date of this agree- ment become and remain members in good standing in the Union. It shall also be a condition of employment that all employees covered by this agreement and hired on or after its effective date shall on the seventh day following the beginning of such employment become and remain members in good standing in the Union. (5) The same contract contained at the time of its execution and still contains the following provision: Art. VII, sec. 1. The Company, where so authorized and directed by an employee, in writing, upon an authorization form will deduct on the first pay day of each month the membership dues of the Union, which include monthly dues in the amount of $4 per month, initiation fees in the amount of $10.00, and lawful assessments in amounts designated by the Union. Said deductions are to be remitted promptly to District 50, United Mine Workers of America, 1435 K Street NW, Washington, D.C., and shall be made payable to District 50, United Mine Workers of America. (6) Before the execution of this contract, which states specifically: Art. VIII, sec. 1. This Agreement shall supersede all existing and previous contracts and all local rules, regulations and customs heretofore established, in conflict with this Agreement. Prior practices and customs not in conflict with this agreement may be continued. there existed between the same parties a 1-year contract dated November 4, 1958, which contained a continuation clause from year to year thereafter unless appro- priate notice was filed by either party. (7) This earlier contract contained no "union security" clause, as quoted in (4) above, but did provide (in article VII) for checkoff of union dues, initiation fees, and lawful assessments, where so authorized by employees. (8) In April 1961 the parties amended article III, section 3, of the current con- tract as quoted in (4) above, to read as follows: It shall be a condition of employment that all employees of the Employer covered by this agreement who are members of the Union in good standing and those who are not members on the effective date of this agreement shall after the seventh day following the effective date of this agreement become and remain members in good standing in the Union. It shall also be a condition of employment that all employees covered by this agreement and hired on or after its effective date shall after the seventh day following the beginni-g of such employment become and remain members in good standing in the Union. (Emphasis in original.) (9) At the hearing the parties stipulated, and it is found, that "at the time of employment each employee is expected to and is required to sign a `Form 1' as part of his employment application." 649856-63-vol. 137-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (10) Form I in addition to other information customarily called for in employ- ment applications, contains the following text: I hereby authorize C. D. Juett by whom I will be employed, to check out any and all initiation fees, dues and assessments levied upon me by the Union that holds jurisdiction over the above named craft and maintains a contract and checkoff system with C. D. Juett on the job with which I am employed for a period of one year. (11) In addition to the authorization above quoted (which as noted above all employees signed upon application) some employees were also asked by a company representative at the time of hiring to sign, and did sign, a document referred to in the record as "Form 528" of the UMW, which is a membership application and checkoff authorization combined-at least one copy being retained by the Employer. (12) The record contains a deal of stipulated information as to a long list of employees, the amounts of money checked off and whether or not the Employer has in its possession copies of Form 528 for such employees. This information General Counsel has sorted and assembled in several Appendixes attached to his brief. His compilation appears to be accurate upon checking. In view of the recommended disposition of this phase of the remedy, however, which follows, the Trial Examiner perceives no necessity to attach such Appendixes to this report. (13) General Counsel introduced direct evidence from only two employees as to whether they voluntarily signed either of the two checkoff authorizations-Form 1 or Form 528: H. B. Smith, Jr., and Ambrose Rose. (14) Smith said he had no objection to signing Form 528, but was not asked if he objected to signing Form 1. (15) Rose said he signed both forms on the same day, signed Form 1 "volun- tarily," asked Timekeeper Boone, who gave him Form 528 to sign, what it was for, was told that it was "for checkoff" and was "just a formality that everybody had to sign it that worked there," and then he signed it. C. Conclusions The foregoing facts support General Counsel's contention that the June 26, 1960, contract was, at the time of its execution, and still is defective because it contains an unlawful "retroactive" union-security clause. (See Burke Oldsmobile, Inc., 128 NLRB 79.) And the same contract was, until April 1961, technically defective because it required union membership on the seventh day, instead of after the sev- enth day, according to Section 8(f) of the amended Act. Requiring employees to sign the checkoff authorization on Form 1 and, as to some of them, to sign Form 528, at the time of applying for employment was also unlawful, as the Board determined in J. W. Saltsman, doing business as Saltsman Construction Company, 123 NLRB 1176. The Trial Examiner therefore concludes and finds that the Decedent and the Respondent have engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act, as amended. D. The implied threat The record also contains testimony concerning a visit made by Superintendent Juett to the motel room of a representative of the Charging Union, in September 1960, when employees Smith and Rose (previously identified) were present. It appears that an argument developed between Rose and the superintendent con- cerning the former's discharge and reinstatement, sometime before this incident. During the argument and following a challenging remark by Rose, Juett declared, in effect. that he could fire Rose again even if he had to say that his work was unsatis- factory to support the discharge. There is no direct evidence that the implied threat in any way involved Rose's membership in or activity on behalf of the Charging Union, or any other labor organization. Only through suspicion and by inference may such conclusion be drawn. The incident, so far as the record shows, was isolated. The remark was ambiguous. For these reasons the Trial Examiner believes General Counsel has failed to sustain the allegation of the complaint concerning this incident. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Decedent and Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 403 merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Decedent and the Respondent have engaged in certain unfair labor practices, the Trial Examiner will recommend that the Respondent cease and desist therefrom, and take affirmative action to effectuate the policies of the Act. In his proposed "remedy" General Counsel urges that the Respondent be required to refund dues and initiation fees deducted from employees' pay since June 26, 1960. The Trial Examiner believes that the Board decision in Duralite Co., Inc., 132 NLRB 425, released on July 26, 1961, is governing in this case. There the Board declined to order refund of dues because it did not find that the union involved "was a company-dominated union and does not order its disestablishment," relying upon the Supreme Court decision rejecting the "Brown-Olds" principle in Local 60, United Brotherhood of Carpenters v. N.L.R.B., 365 U.S. 651. For this reason General Counsel's proposed remedial recommendation is rejected. At the hearing General Counsel specifically disclaimed any wish to have the contract involved set aside, and the complaint contains no allegation of company domination, or even of assistance to the UMW within the meaning of Section 8(a) (2) of the Act. Upon the basis of the foregoing findings of facts and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By entering into and maintaining a contract containing an unlawful union- security clause, and by requiring checkoff authorizations to be signed at the time of employment application, thereby encouraging membership in a labor organization, the Decedent and the Respondent have engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Leggett's Department Store of Princeton, West Virginia, Inc. and United Store Employees Union, Local 347, Retail, Whole- sale & Department Store Union, AFL-CIO. Case No. 9-CA- 2369. May 19, 1962 DECISION AND ORDER On January 24, 1962, Trial Examiner Benjamin B. Lipton issued his Intermediate Report herein, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Re- port attached hereto. The Trial Examiner also found that the Re- spondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed as to such allega- tions.1 Thereafter, the Respondent filed exceptions to the Intermedi- ate Report. i As no exceptions have been filed with respect thereto, we adopt pro forma the Trial Examiner's recommendations that these allegations be dismissed. 137 NLRB No. 42.