Intl. Chemical Workers Union, Local 143

INTL. CHEMICAL WORKERS UNION , LOCAL 143 International Chemical Workers Union, Local 143, AFL-CIO and Lederle Laboratories, Division of American Cyanamid Company, Lederle Laborator- ies, Division of American Cyanamid Company (Ma- rian Kuhn, Joanne M. Livingston, Edward J. Secor, Richard Bomm), Lederle Laboratories, Division of American Cyanamid Company (Joanne M. Living- ston, Edward J. Secor, Richard Bomm). Cases 2- CB-4590, 2-CB-4590-2, and 2-CB-4591 February 25, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon charges filed by the Charging Parties, Led- erle Laboratories, Marian Kuhn, Joanne M. Living- ston, Edward J. Secor, and Richard Bomm, on December 21, 1967, the General Counsel of the Na- tional Labor Relations Board by the Regional Direc- tor for Region 2 issued his Order Consolidating Cases, Consolidated Complaint and Notice of Hearing on November 8, 1968, against Respondent, International Chemical Workers Union, Local 143, AFL-CIO. The complaint alleges in substance that the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and 8(b)(l)(A) of the National Labor Relations Act, as amended. In its duly filed answer, the Respondent admits certain allegations of the complaint, denies all unfair labor practices allegations, and sets up certain affirmative defenses. On April 18, 1969, the parties entered into a stipula- tion in which, inter alia, they requested that this pro- ceeding be transferred to the Board. In the stipulation the parties agreed in effect that the formal papers filed in this proceeding and the stipulation, together with the attached exhibits, would constitute the entire re- cord in the case and agreed that no oral testimony was necessary or desired. They waived their right to a hearing before a Trial Examiner, the making of find- ings of fact and conclusions of law by a Trial Examin- er, and the issuance of a Trial Examiner's Decision and Recommended Order. The stipulation provided for the filing of briefs with the Board. On April 28, 1969, the Board issued its Order Ap- proving Stipulation and Transferring Proceeding to the Board. All parties filed briefs and the General Counsel and Charging Parties, Kuhn, Livingston, Se- cor, and Bomm, together filed reply briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 705 The Board has considered the entire record in this case, including the briefs of the General Counsel and Respondents, and makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company at all times material has maintained an office and place of business at 110 Crooked Hill Road, Pearl River, New York, where it is, and has been at all times material herein, engaged in the man- ufacture, sale, and distribution of pharmaceutical products. During 1967, which period is representative of its annual operations generally, the Company, in the course and conduct of its business operations, manufactured, sold, and distributed at its place of business products valued in excess of $50,000, of which products valued in excess of $50,000 were ship- ped from said place of business in interstate com- merce directly to States other than the State of New York. Accordingly, we find that the Company is and has been at all times material engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The parties agree and we find that International Chemical Workers Union, Local 143, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On May 7, 1965, the Company and Union entered into a contract running from May 3, 1965, to May 10, 1967, covering a production and maintenance unit of about 1,500 employees and containing, inter alia, a maintenance-of-membership clause and a provision that any member could withdraw from the Union by mailing in a written resignation postmarked May 10. In 1967 there were about 1,320 union members, prac- tically all of whom had dues checkoff forms on file with the Company. In March 1967 the Union and Company began negotiations for a new contract; on May 4 the Union, in a secret election, received an overwhelmingly favorable strike vote. On May 10 some 25 employees sent letters to the Union stating they were resigning from membership as provided by the contract. After a short extension the contract expired on May 18, and the Union struck the following day. A majori- ty of employees walked out and stayed out for the strike's duration; i.e., until around August 29. During 188 NLRB No. 100 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike, a time when no contract was in effect, some 375 employees returned to work. About 208 sent res- ignation letters to the Union before going through the picket line; 9 sent letters shortly after returning to work; the remainder had sent letters on May 10 or were not union members. On August 29 the Company and Union entered into a memorandum of agreement pursuant to which, on September 22, they executed a new contract effective as of August 30, 1967. The new agreement provided for maintenance of membership for all employees who were members in good standing on September 1, 1967, for resolution of any union- security disputes by the grievance-arbitration prov- isions, and for Company notification to dues-delin- quent employees, upon certification of a list of delinquents by the Union, that they would have 30 days in which to pay their dues or be discharged. Unlike the previous agreement it contained no prov- ision for resigning from the Union. On August 30 and 31, 16 more employees sent res- ignation letters to the Union. On September 5, the Union submitted its member- ship list-almost all members, as noted, had a check- off authorization on file-and the Company proceed- ed to check off dues except for those employees who had sent the Union resignation letters. The Union then, on October 19, filed two grievances. The first charged the Company with failing to honor checkoff authorizations which had not been cancelled in ac- cordance with their terms. The second grievance was concerned with the employees' delinquent status be- cause of non-payment of dues either by checkoff or direct payment. This grievance sought to compel the Company to notify the employees that they were de- linquent in payment of dues and would be subject to discharge if the delinquency were not remedied in 30 days. The Company' s response to both grievances was, in substance, that it had no obligation under the contract either to check off dues or to notify employ- ees of their delinquent status unless the employees were members in good standing on September 1. Ac- cordingly, the Company took no action with respect to employees who had submitted resignations during the period here in question. The disagreement between the Company and Un- ion turns essentially on the effect to be given the resignations submitted by various employees from May 10 through August 31. The Company would ac- cept the resignations at face value; the Union con- tends that all were ineffective as neither its constitution nor bylaws provides for a voluntary res- ignation. This dispute was submitted to an arbitrator who, in the fall of 1968, issued his decisions in which he agreed with the Union that its constitution and bylaws were controlling. In consequence, he conclud- ed that the employee membership resignations were not effective, with the following partial exceptions: (1) the Union was estopped to deny the effectiveness of the May 10 resignations as they were pursuant to contract provisions which at least intended to provide a way for employees to escape the contractual mainte- nance-of-membership provisions; and (2) as the em- ployees obviously intended something in submitting their resignations, he construed them as effective can- cellations of those checkoff authorizations which specified no duration or escape period (the great ma- jority) but not of those which did specify a particular period for cancellation.' Thus, the arbitrator's award required all member-employees, except the May 10 resignees, to maintain their membership as a condi- tion of employment but freed the Company from checking off dues in most instances. As for any Labor Act considerations, the arbitrator expressly stated in a section of his decision entitled "The Taft Hartley Act Aspects of the Case," that he was concerned sole- ly with the interpretation and application of the con- tract and "not with reference to public policy considerations expressed or embodied in legislative enactments" and that he had "not presumed to ex- press or decide Board policy on the questions pres- ented." The Union acknowledged that it was bound by the arbitrator's award and agreed to make no de- mand or request of the Company inconsistent with the award. On three occasions-the first being around Septem- ber 28, 1967, the second about November 10, and the last January 9, 1968-the Union, having filed appro- priate charges under its constitution, held trials for a large number of employees who were seen to cross its picket line and whom it considered to be its members irrespective of the fact they had submitted member- ship resignations either before crossing or after cross- ing the picket line. A fine of $25 was levied for each time an employee was seen to cross the picket line. In a few individual cases the fines totaled as much as $600. In situations where the Union regarded the con- duct of a putative member as especially egregious, suspension for various periods from active union membership was imposed. The record does not show how many, if any, persons paid their fines.' 1 Employees signed various checkoff authorization forms Some were of indefinite duration and of these certain ones specified the amounts to be withheld, others did not Some were effective for a year subject to automatic, yearly renewal absent termination during a specified period, but some similar authorizations were blank with respect to the period for cancellation. Most of the authorizations were of indefinite duration and printed on the back of union authorization forms The checkoff and union authorizations were all separately signed. The above recital of facts pertains to the production and maintenance unit represented by the Union Also during much of the relevant period it represented a unit of about 175 technicians , which voted to, and did go out on, strike with the other employees However , some 144 of the technicians abandoned the strike, that group being composed of nonmembers of the Union, members who submitted resignations before returning to work, and some 7 members who submitted resignations after returning to work At this INTL. CHEMICAL WORKERS UNION, LOCAL 143 The Charging Parties and General Counsel contend basically that the Respondent violated Section 8(b)(1)(A) and (2) by demanding that the Company check off dues of employees who had submitted res- ignations and that it notify such employees that they were subject to discharge if they did not pay their dues within 30 days. They further maintain that Respon- dent violated Section 8(b)(1)(A) by fining employees who had resigned from the Union and by levying unreasonable and excessive fines. The Union con- tends that it has not violated the Act. It is clear that the initial disagreement between the parties turns on the effect to be given the employee resignations sub- mitted during the period from May 10 through Au- gust 31. As noted above, that issue was considered by an arbitrator who held that the Union's constitution and bylaws, which had no provision for voluntary resignations, were controlling. He concluded that ex- cept for the special partial exception of the May 10 resignations, none of the resignations were effective and that the employees remained union members. The arbitrator's result is, however, in direct conflict with Board decisions which have consistently held that where a union's constitution and bylaws have no provisions for voluntary resignations a member can resign whenever he wishes.3 Consequently, on the point here at issue, we reject the arbitrator's decision 4 and find that all the resignations submitted during the period in question were effective when received by the Union 5 and that none of the employees submit- ting such resignations were members of the Union on the critical maintenance-of-membership contract date of September 1, 1967. Consequently, such employees were not subject to the contract's maintenance-of- membership provision and, therefore, a dues obliga- point the history of the two units diverges for there was no new contract signed for the technicians . Rather, on September 13, 1962, the Union as a result of an election in Case 2-RD--697, was decertified as the bargaining representative of the technical unit In consequence , it did not seek the continued checkoff of technicians' dues nor their discharge for failure to pay dues It did, however , fine a number of technicians for working behind the picket line 3 Booster Lodge No 405, International Association of Machinists and Aeros- pace Workers, AFL-CIO (The Boeing Company), 185 NLRB No 23, In I I and cases there cited The holding in those cases is not made inapplicable here because the Union's contract with the Company provided for voluntary withdrawal of membership by mailing in a resignation dated May 10 The rights of union membership cannot be held to vary with the shifting agree- ments the Union may reach with the Company, and as indicated above the membership escape period was not continued in the Union's new agreement with the Company See New Jersey Bell Telephone Company, 106 NLRB 1322, 1324 And, to anticipate our consideration of the fine issue dealt with below, we further conclude that the I-day May 10 escape date did not alone render union membership voluntary within the intent of the Supreme Court's lan- guage in Scofield holding lawful the imposition of union rules upon "mem- bers who are free to leave the union and escape the rule." Scofield et at v N.L R B, 394 U S 423 4See Spielberg Mfg Co, 112 NLRB 1080, 1082 5 See Local 1012, United Electrical, Radio & Machine Workers of America (General Electric Co) 187 NLRB No 46 707 tion could not lawfully be imposed upon them as a condition of employment. Nevertheless, as stated above, the Union demanded that the Company notify the employees in question that they must pay the union dues within 30 days-a demand we construe as an attempt to have the Com- pany apply the contract union-security discharge provision to the employees who resigned. Conse- quently, we find that the demand was an attempt by the Union to cause the Company to violate Section 8(a)(3) and that the Union thereby violated Section 8(b)(2) and (1)(A) of the Act.' It is also alleged, as indicated, that the Respondent violated Section 8(b)(1)(A) by demanding that the Company check off dues of the resignees after Sep- tember 1, such demand being predicted upon alleged- ly continuing valid authorizations. As the request for continued checkoff was made separate and apart from the demand that the Company apply the union- security provisions of the contract to the resignees and as that request was directed only to the Company, there is no basis for finding that the request violated Section 8(b)(1)(A). Furthermore, at the time the Un- ion made its request, it had on file checkoff authoriza- tions from the employees whose dues it wished checked off. None of the authorizations had automat- ically expired by their terms and, though all the au- thorizations became terminable at will after the contract expired on May 18, 1967, the record shows that only a few of the employees who resigned union membership specifically sought to terminate the checkoff of their dues. To be sure, the arbitrator con- strued the resignations of employees who signed au- thorizations of indefinite duration not as resignations of memberhsip but as revocations of authorizations. However, the Union made its request for the contin- ued checkoff prior to that decision. Clearly, before the arbitration it was reasonable for the Union to con- clude that absent specific revocation it continued to be entitled, pursuant to the provisions of their authori- zations, to the checkoff of the disputed dues. This issue is essentially one concerning the validity of the authorizations in the face of the membership resigna- tions, and is a dispute involving contract interpreta- tion rather than one involving an interpretation and application of the Act.' In these circumstances and as the Union has, insofar as the record indicates, pro- ceeded in good faith in pressing its claims to checkoff, we find that the Union did not here violate Section 8(b)(1)(A) of the Act. 6 International Union, United Automobile, Aircraft, Agricultural Implement Workers ofAmerica (John I Paulding, Inc), 130 NLRB 1035, 1044, also Local Union No 621, United Rubber, Cork, Linoleum and Plastic Workers of Ameri- ca, AFL-CIO (Atlantic Research Corporation d/b/a R & G Sloane Manufac- turing Division of Atlantic Research Corporation), 167 NLRB 610 7 Cf Morton Salt Company, 119 NLRB 1402, also Nathan's Famous of Yonkers, Inc, 186 NLRB No 19, section III 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, it is alleged that the Union violated Section 8(b)(1)(A) by fining certain employees for working behind its picket line and also by levying fines that were unjust and unreasonable. The employees fined can be separated into several groups: (a) those who submitted membership resignations before crossing the picket line, (b) those who submitted resignations after crossing the picket line and continued to work behind the picket line, and (c) those who submitted resignations after the strike ended. The Union fined employees in all three groups indiscriminately for each time the employee was seen to cross behind the picket line. It is now settled that a union may lawfully fine former members, as well as members, for breach- es of union discipline occurring while they were mem- bers of the union but not for such conduct occurring after the employee has submitted and the union re- ceived his resignation .'Here we have found all res- ignations to be effective. Consequently we find that the Union violated Section 8(b)(1)(A) by fining the employees in group (a) above whose resignations were received by the Union before they crossed the picket line and those in group (b) for the times they crossed the picket line after having thus resigned. We also find that the Union did not violate the Act by fining group (b) employees for activities prior to their effective res- ignations or by fining group (c) employees for any crossing of the picket line during the strike. Also we find, contrary to the position taken by the General Counsel and Charging Parties, that the size of "rea- sonableness" of the fines is irrelevant in assessing their legality under the Act .9 CONCLUSIONS OF LAW 1. Lederle Laboratories, Division of American Cyanamid Company, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Chemical Workers Union, Local 143, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By demanding that the Company apply to em- ployees not subject to the maintenance-of-member- ship union-security section of the relevant bargaining agreement the dues payment requirement or dis- charge provisions of that section, the Respondent Un- ion attempted to cause the Company to violate Section 8(a)(3) of the Act and thereby violated Sec- tion 8(b)(2) and (1)(A). 4. By fining employees for crossing and working behind its picket line at the Company's plant for such activities occurring after the employee had resigned The Boeing Company, supra, General Electric Company, supra. International Association of Machinists and Aerospace Workers, AFL- CIO, Local Lodge No 504 (Arrow Development Co), 185 NLRB No 22 from membership in, and was no longer a member of, the Union, the Union restrained and coerced employ- ees in the exercise of their rights protected by Section 7 of the Act and thereby violated Section 8(b)(1)(A). 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the Company's operations described in section I, above, have a close, intimate, and substantial relationship 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. THE REMEDY Having found that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act, we shall order that it cease and desist and that it take certain affirma- tive action which will effectuate the policies of the Act. We shall order the Respondent Union not to re- quest the Company to apply the maintenance-of- membership provision to employees who resigned from the Union prior to the contract's critical date. We shall also order that the Union cease from fining employees who have resigned from the Union for breaches of union rules occurring after their resigna- tions and that it reimburse those employees, if any, for any fine unlawfully levied they may have paid, with interest on such sum to be refunded at 6 percent a year. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Inter- national Chemical Workers Union, Local 143, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Requesting that Lederle Laboratories, Division of American Cyanamid Company, to apply the main- tenance-of-membership provision of their collective- bargaining agreement to employees who have submit- ted resignations to the Union and who have not rejoined the Union prior to the contract's critical date for applicability of the maintenance-of-membership provision. (b) Restraining or coercing employees , who had INTL. CHEMICAL WORKERS UNION , LOCAL 143 resigned from and who were no longer members of the Union, in the exercise of their rights guaranteed in Section 7 of the Act, by imposing fines on such employees because of their post-resignation conduct in working at the Company's plant during the summer 1967 strike. (c) In any like or related manner restraining or coercing employees in the exercise of their rights guar- anteed in Section 7 of the Act. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Reimburse or refund to any employees, de- scribed in paragraph 1(a) of this Order, who have paid fines under the circumstances described in that para- graph, the amount of said fines imposed because of post-resignation conduct in working at the plant. (b) Post at its office and meeting hall and at the Pearl River, New York, plant of the Company if the Company is willing, copies of the attached notice marked "Appendix."10 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by an authorized representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that those portions of the complaint as to which no violation has been found be, and they hereby are dismissed. 10 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order Of The National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of The United States Court of Appeals Enforcing an Order of The National Labor Relations Board " APPENDIX NOTICE TO MEMBERS 709 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT request the Company, Lederle Lab- ratories, Division of American Cyanamid Compa- ny, to tell employees who have resigned from the Union and were not members on September 1, 1967, or any later critical date for application of any bargaining agreements maintenance-of-member- ship provision that they must pay their union dues or be discharged. WE WILL NOT restrain or coerce employees who had resigned from the Union and who, in the exer- cise of their rights guaranteed in Section 7 of the Act, worked at the Company's Pearl River, New York, plant during the summer 1967 strike, by im- posing fines upon those employees for crossing or working behind the Union's picket line at times after the Union had received their membership res- ignations. WE WILL reimburse such employees for any fines they may have paid to us for working during the said strike after the Union received their resigna- tions. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of rights guaranteed to them in Section 7 of the National Labor Relations Act. INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL 143, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0300.