Intl Union of Dist. 50, UMW

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