Oil, Chemical and Atomic Workers Int'l Union, Etc.

436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain, or to refrain from becoming or remaining , members in good standing of said Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. AMERICAN COMPRESSED STEEL CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381-2200, if they have any questions concerning this notice or compliance with its provisions. Oil, Chemical and Atomic Workers International Union, AFL- CIO and Its Local 8-718 and United Nuclear Corporation, Fuel Division. Case No. 1-CB-877. May 5,1965 SUPPLEMENTAL DECISION AND ORDER On August 28,1964, the National Labor Relations Board, by a duly designated panel, issued a Decision and Order in this case, 148 NLRB 629, finding that the Respondents had violated Section 8(b) (1) (A) and (2) of the National Labor Relations Act, as amended, by attempt- ing to invoke the sanctions of a maintenance-of-membership clause in its contract with the Company against 50 employees for nonpayment of dues for January 1963-the month prior to the execution of the con- tract-and against 16 of these 50 employees, who the Board found had resigned from the Union prior to the signing of the contract on Febru- ary 12, 1963, for nonpayment of dues not only for January but also for subsequent months.' In reaching this conclusion, the Board affirmed the Trial Examiner's finding that the 50 employees had become union members although they had not satisfied the formal require- ments set forth in Respondent's constitution for the acquisition of membership. The Board found it unnecessary to pass on the question 1 The maintenance-of-membership clause provided as follows: Any employee who is a member in good standing of the Union as of the date of this agreement or who thereafter voluntarily joins the Union during the term of this agreement shall remain a member of the Union in good standing as a condition of employment by the Company. For the purpose of this article , an employee shall be considered a member of the Union in good standing if he tenders the periodic dues and the initiation fees uniformly required as a condition of employment. 152 NLRB No. 41. OIL, CHEMICAL & ATOMIC WORKERS INT'L UNION, ETC. 437 of whether Respondent's filing of a grievance to compel the Company to apply the maintenance-of-membership clause to these employees was also violative of the Act. The Board ordered Respondents to cease and desist from the unfair labor practices found and to rescind the demand for January dues from the 50 employees and the demands for later dues from the 16 employees who had resigned from the Union. Respondents complied with the Board's Order, but the Company petitioned the Court of Appeals for the First Circuit for a review of the Board's Decision, contending that the Board erred in finding that the employees had become union members and in failing to find that the Union's action in filing a grievance against the Company was violative of the Act. The Company prayed the court set aside the Board's Order insofar as it (1) failed to find that the Respondents committed an unfair labor practice under Section 8(b) (1) (A) and (2) of the Act by filing a grievance to compel the Company to violate Section 8(a) (3) of the Act, and failed to order the Respondents to desist from such action; and (2) failed to find that the Respondents violated Section 8(b) (1) (A) and (2) of the Act by demanding payment of dues as a condition of employment of the 50 employees here involved, and failed to direct the Respondents to rescind such demand. On January 18, 1965, the court sustained the Company's petition. In its opinion, the court, inter alia, interpreted the provisions of the maintenance-of-membership clause of the contract in the light of the provisions of the union constitution and concluded that the parties intended the term "member," as used in the contract, to mean compli- ance with the formal membership requirement set out in the union constitution. Since the 50 employees had not followed the procedure for continuing membership outlined in the Union's constitution, the court held that none had become union members and that any attempt by the Union to apply the maintenance-of-membership clause to these employees, including the filing of grievance against the Company for that purpose, was violative of the Act. The court remanded the case to the Board with directions to make such findings and modifications of its Order as may be necessary to fulfill, in toto, the Company's prayer, as summarized above. The court noted that nothing in its opinion is to be construed as ordering relief beyond the scope of the amended complaint .2 The Board a has decided to accept the remand and, for the purposes of this case, to make the findings required by the remand. Accord- 8 United Nuclear Corp. v. AT L R.B., 340 F. 2d 133 (C.A. 1). 8 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman McCulloch and Members Fanning and Jenkins]. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly, we find that it was the intention of the parties in agreeing to the maintenance-of-membership clause that the term "member" means an employee who has complied with the formal membership requirements in Respondents' constitution.4 As the 50 employees did not follow the procedure for achieving membership outlined in the constitution, we find that none of them became union members and that Respondents violated Section 8(b) (1) (A) and (2) of the Act by attempting to apply the maintenance-of-membership clause to all of them for non- payment of January dues, and as to 16 of them for nonpayment of dues for subsequent months as well. As we noted in our earlier Decision, another reason for concluding that Respondents have violated the Act is that Respondents attempted to condition employment on payment of dues for January, the month prior to the execution of the contract. Even if the 50 employees had become union members, the attempted application of the maintenance-of-membership clause to them for the month of January would be unlawful. In addition, we find that Respondents further violated Section 8(b) (1) (A) and (2) by filing a grievance against the Company for the same purpose of compelling the Company to apply the maintenance-of-membership clause to these employees. THE REMEDY We have found that Respondents violated Section 8(b) (1) (A) and (2) in the manner set forth above. We shall amend our Order in a manner appropriate to remedy the violations found. ORDER IT IS HEREBY ORDERED that the Order previously issued in this case be, and it hereby is, amended in the following manner : A. Redesignate paragraph 1(b) as 1(d) and add as paragraphs 1(b) and 1(c) the following: "1(b) . Demanding of employees of the said Employer who are not members of Respondents payment of dues for the month of January 1963, or for any other period during which they are not members of Respondents, as a condition of continued employment." "1(c). Filing grievances or instituting or maintaining arbitration proceedings against the said Employer for the purpose of causing the said Employer to discharge or otherwise discriminate against its employees for their failure to pay dues for the month of January 1963.1', 4 The constitution requires that the names of proposed members be presented to the members, that the membership vote on these persons, that the applicants appear at initiation ceremonies , and that an oath be administered to them. RAMAPO MANOR NURSING CENTER 439 B. Redesignate paragraphs 2(c) and 2(d) as 2(d) and 2(e), respec- tively. Delete existing paragraph 2(e). Add as paragraph 2(c) and 2(f) the following: "2(c). Notify the said Employer that it is withdrawing the griev- ance concerning the Employer's failure to discharge employees for failure to pay dues for the month of January 1963, which was filed against the Employer on August 27,1963." "2(f). Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith." C. Add the following paragraph to the notice: WE HAVE WITHDRAWN the grievance we filed against the Com- pany on August 23, 1963, concerning the Company's refusal to discharge employees who refuse to pay dues for the month of January 1963. Ramapo Manor Nursing Center and Local 1199, Drug and Hos- pital Employees Union, AFL-CIO. Case No. A0-83. May 5, 1965 ORDER DISMISSING PETITION FOR ADVISORY OPINION This is a petition filed on February 19, 1965, by Ramapo Manor Nursing Center, herein called the Petitioner, pursuant to Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended, requesting an Advisory Opinion in which it would advise that the Board would assert jurisdiction over the Petitioner herein. The Petitioner has filed a brief in support of its position, while Local 1199, Drug and Hospital Employees Union, AFL-CIO, herein called Local 1199, has filed a brief in opposition. There is presently pending between the Petitioner and Local 1199, a representation proceeding, Docket No. SE-38515, before the New York State Labor Relations Board. Ivan McLeod, Regional Director for Region 2 of the National Labor Relations Board, herein called the Regional Director, had administratively dismissed, on jurisdictional grounds, a representation petition in Case No. 2-RM-1376, involving the same parties; and there has been pending before this Board, the Petitioner's appeal from this dismissal. The appeal has been admin- istratively denied by the Board this date. The Board has duly considered the petition and briefs, and has taken official notice that the Board has denied the Petitioner's appeal, thereby affirming the Regional Director's dismissal of Case No. 2-RM-1376 on 152 NLRB No. 35.