Bay Counties District Council of Carpenters, Etc.Download PDFNational Labor Relations Board - Board DecisionsFeb 14, 1964145 N.L.R.B. 1775 (N.L.R.B. 1964) Copy Citation BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1775 whether the evidence warrants the conclusion that an antiunion employer discharged the men discriminatorily , using the cider incident as a pretext . The evidence, in my opinion, does not warrant such a conclusion . Practically the first thing that Baker admittedly told the men on the night of March 22 was that if they had been drink- ing an alcoholic beverage they were discharged . Baker was a nondrinker. He did not say that his proposition aforementioned depended upon whether the beverage af- fected the men or whether it had a little alcohol or a great deal. The proposition was as stated . No one contested this rule as a recent contrivance and the evidence does not indicate that Baker was out to "get " the men when he made the state- ment. Further, Gilbert was known to be opposed to the Union; Baker's testimony is uncontroverted that a day or so before the election Purdy had told him that "he couldn't see where this [the Union] could benefit him in any way . . that with his education . he . . . had a certain handicap , and that he felt like that he could do just as well on his own"; Baker testified that he considered that Purdy was not in favor of the Union 33 King, therefore , was probably the only one of the dischargees whom Baker regarded as prounion . In any event , I am not persuaded that the Sec- tion 8(a)(3) allegation of the complaint has been sustained by a preponderance of the evidence on the record as a whole. Dismissal is therefore recommended. CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of the Act. 2 The Union is a labor organization within the meaning of the Act. 3. By a statement made to employee Purdy in February 1963, Respondent, by its president , Brown , interfered with , restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, and has thereby violated Section 8(a) (1) of the Act 4. Respondent did not engage in unfair labor practices by discharging employees King, Gilbert, and Purdy. IV. THE REMEDY I do not believe that any useful purpose will be served by requiring the posting of a notice stating that Respondent will not interfere with the rights of its employees in violation of Section 8(a)( I) of the Act or a notice stating that Respondent will not tell employees that even though a union might be selected as majority representative it would not come into Respondent 's plant. There is a single statement to one em- ployee involved , albeit by Respondent 's president . The evidence indicates that the Union has been certified and that Respondent has recognized it Moreover, real- istically regarded , the employees , the Union , and the Respondent realize that the issue in the case was the legality of the discharges . A notice of the type aforementioned, in the circumstances , would be unmeaningful to all concerned RECOMMENDATION It is recommended that the complaint be dismissed. as It was Baker who made the basic decision regarding the drinking and the discharges. Brown thereafter concurred when lie returned from out of town Brown 's earlier state- ments to Purdy indicate Brown's belief that Purdy was prounion . It is possible that what Brown had said to Purdy, described previously in this Decision , caused Purdy to change his position or possibly Brown had been wrong in his suspicion Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO; Shinglers Union , Local 478, International Brotherhood of Carpenters and Joiners of America , AFL-CIO and Associated Home Builders of the Greater East Bay, Inc. Case No. 20-CR-909. February 74, 1964 DECISION AND ORDER On July 25, 1962, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that 145 NLRB No. 168. 1776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Intermediate Report. Thereafter, exceptions to the Intermediate Report and supporting briefs were filed by the General Counsel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs,,and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifications indicated below. For the reasons set forth in the Intermediate Report, we agree with the Trial Examiner that Respondents violated Section 8(b) (1) (A) of the Act by transferring dues payments of members covered by union-shop agreements to the satisfaction of fines levied by Respond- ents and thereafter threatening employees with loss or impairment of employment for failure to pay their dues. However, for the reasons stated in our decision in Local 283, United Automobile. Air- craft and Agricultural Implement TTTrorkers of Am,crtea. r ,_41v- AFL-CIO (TViecon.sin Motor Corporation),' we do not adopt the Trial Examiner's expression of opinion that the proviso to Section 8(b) (1) (A) does not except from the proscription of that section a union's imposition of fines upon members who violate the union's internal rules relating to production restrictions, an issue which the Trial Examiner specifically stated lie did not reach in concluding that Respondent's conduct herein violated Section 8(b) (1) (A). Simi- larly, for the reasons stated in Local 283, International Union United Automobile etc., supra. we find no merit in the General Counsel's con- tentions that Respondents also violated Section 8(b) (1) (A) by im- posing the fines. ORDER The Board adopts the Recommended Order 2 of the Trial Examiner with the following addition and modifications : that portion of the 1 145 NLRB 1099 2 The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case, and pursuant to Section 10(e) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that respondent, Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO, and Shinglers Union, Local 478. International Brotherhood of Carpenters and Joiners of America , AFL-CIO, their officers , agents , representatives , successors, and assigns , shall- The first sentence below the signature line in the Appendix attached to the Intermediate Report is amended to read: "This notice must remain posted for 60 consecutive dais from 11the date of posting. . . . BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1777 complaint alleging that Respondents violated the Act by imposing the fines be, and it hereby is, dismissed. MEMBER LEEDO1%M, dissenting in part: I agree with the Trial Examiner and my colleagues that the Re- spondents violated Section 8(b) (1) (A) of the Act by transferring dues payments of members covered by union-shop agreements to the satisfaction of fines levied by the Respondents and thereafter by threatening employees with loss or impairment of employment for failure to pay their dues. Contrary to my colleagues, however, I would, for the reasons set forth in my dissenting opinion in the Wisconsin Motor case,' also find that the Respondents further violated Section 8(b) (1) (A) by imposing fines upon members who violated internal union rules relating to production restrictions, and I would enter an order to remedy such a violation. As my colleagues are dismissing the complaint in this respect, I must dissent. MEMBER JENKINS took no part in the consideration of the above Decision and Order. 'Local 283 , United Automobile, Aircraft and Agricultural Implement lVoibers of Amenca, UAW-AFL-CIO (Wisconsin Motor Corporation ), 145 NLRB 1099. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard before Trial Examiner Martin S. Bennett at San Francisco, California, on June 11 and 13, 1962 The complaint i alleges that Respondents, Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO, and Shinglers Union, Local 478, International Brotherhood of Carpenters and Joiners of America, AFL-CIO, had jointly engaged in unfair labor practices within the mean- ing of Section 8(b)(1)(A) of the Act by fining employees on various dates in 1961 for exceeding production ceilings or quotas unilaterally established by Re- spondents and by thereafter applying dues payments of said employees to the satis- faction of said fines. A motion by Respondents to dismiss the complaint was denied, was later renewed, and is disposed of by the findings hereinafter made. Oral argu- ment at the close of the hearing was waived and briefs have been submitted by the General Counsel and by Respondents. Upon the basis of the entire record in the case , and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Associated Home Builders of the Greater East Bay, Inc., is a voluntary association of employers engaged in the home construction industry and bargains collectively in behalf of its members with the representatives of the employees of the latter. The members of Home Builders annually purchase materials valued in excess of $50,000 which are shipped to them directly from points outside the State of Cali- fornia and annually sell goods and services valued in excess of $1,000,000. I find that the operations of Home Builders and its members affect commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein. i Issued April 5, 1962, and based upon a charge filed January 17, 1962, by Associated IIome Builders of the Greater East Bay, Inc., herein called Home Builders. The first stated appearance for the Charging Party was made after the close of the hearing. 1778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATIONS INVOLVED Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO, and Shinglers Union, Local 478, International Brotherhood of Carpenters and Joiners of America, AFL-CIO, affiliated with the former, herein respectively called District Council, Local 478 is "subordinate" to the Council which in turn reports to the of the Act. III THE UN1,AIR LABOR PRACTICES A. The issue; introduction The issue herein is whether Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act by fining certain members for exceeding production ceilings unilaterally established by Respondents and by ap- plying dues payments to the satisfaction of such fines in October of 1961 and there- after. While the complaint sets forth the names of eight union members who incurred such fines, the General Counsel has adduced evidence of dues being applied to these fines in but two cases. There is the additional and, in view of the Trial Examiner, dispositive factor that these employees are covered by union shop contracts, com- pelling them to maintain membership in Respondents, in the language of Section 8(a)(3) of the Act, "as a condition of employment" Stated otherwise, they were vulnerable to discharge if their dues payments were not made. All members of Respondents who work in the 46 counties of Northern California are covered by union-shop contracts, as will appear, with a chapter of the Associated General Contractors. As the complaint attacks the treatment only of these em- ployees and no others, I construe the issue presented before me as directed solely to them. This report will therefore not treat with (1) the fining of union members for violation of trade rules such as pacemaking, standing alone, or (2) the allocation of dues payments to such fines in the absence of a union-shop contract Thus. the Intermediate Report in Local 283, U.A.W. (Wis(,onsin Motor Corp.), 145 NLRB 1099, cited by Respondents, is deemed not to be in point. Bay Counties District Council of Carpenters has 29 local unions which belong to it. including Local 478. According to C. R Bartalini, executive-secretary of the Council, Local 478 is "subordinate" to the Council which in turn reports to the parent International, United Brotherhood of Carpenters and Joiners of America. He defined subordinate as meaning "the next line of command " While each local is "autonomous" to the extent that it adopts its own bylaws and constitution, "they are not adopted so that they are in conflict with those of the District Council. In other words, the District Council is the governing body." It is conceded that in May and June of 1961, the Council approved a resolution by Local 478 to impose certain quotas or norms on the installation of shingles, i e., each workman would install a minimum of so many units and would not exceed a specified maximum, a decision which ultimately led to the instant case. Respondents do not challenge the claim that they are jointly responsible for the action taken with respect to the tried and fined union members, the record so discloses, and the findings here- inafter are made on that posture. B. History of the production ceilings As noted, the employees whose alleged rights are under consideration herein are covered by collective-bargaining agreements containing the customary union-shop clause. One is between the District Council and Northern and Central California Chapter, The Associated General Contractors of America, Inc., for the period 1959- 1962 and is applicable to San Francisco, San Mateo, Marin, and Alameda Counties. The jurisdiction of Local 478 is in Alameda County, although its members are allowed to work in adjoining Contra Costa County Work in the latter county is similarly covered by another contract for in essence the same period between United Brotherhood of Carpenters and Joiners of America and the same employer associa- tion as part of a 42-county agreement. Thus, these two contracts encompass 46 counties of northern California, a common grouping for bargaining in the area Although,the precise reason for the imposition of the fines is not relevant herein, inasmuch as the issue ultimately developed turns on the transfer of dues payments to the satisfaction of fines, irrespective of their cause, it may be helpful to set forth briefly the background leading up to the imposition of the fines. As will appear, the fine in the case of Kenneth Disney, to which dues were applied, was apparently imposed for violation of two trade rules other than the trade rule relating to production ceilings. BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1779 The precise date of the initial promulgation of these production ceilings is not disclosed, although they did receive initial publicity in 1959. Steven Dolan, owner of Haywood Roofing Company, a roofing contractor and member of Home Builders, uncontrovertedly testified that about 2 years prior to August 1961, Business Agent Warren Wright of Local 478 informed him that production quotas were being established After several months, they were dropped by Local 478 after employer objection. Local 478 then issued bylaws and trade rules late in 1959 or 1960 which provided in section 5 of the trade rules that a workman would install a minimum of 5 squares and a maximum of 6 squares of wood shingles or shakes per 8-hour day and that on composition shingles the minimum would be 8 and the maximum 10 squares per 8-hour day. The working rules further provide as follows: SEC. 12a. Pace Setting. Any member who hurries or works at excess speed or tries to get his fellow workman to do the same to complete his quota in less than eight (8) hours and leaves the job before 4:30 p.m. or the time allowed, shall be paid by the contractor on a pro rata basis or actual time worked. (b) Any shingler can prefer charges against pace makers and any member found guilty of pace setting or rushing members with a view of holding his job and bring up the other members employed to an excess standard of speed shall be fined.2 The bylaws and trade rules of the District Council in effect at the time material herein treat similarly with pacemakers, for section 36 of its trade rules states as follows- Any Carpenter can prefer charges against pace makers, and any member found guilty of pace setting or rushing members, with a view of holding his job, and bring up the other members employed to an excess standard of speed, shall be fined. As will appear, trials of the pacemakers involved herein were conducted by the District Council and therefore section 36 of its trade rules was considered to be applicable rather than the identical rule promulgated by Local 478. After discussion at a meeting in May 1961, Local 478 passed a resolution at its June meeting and this resolution was formally approved that same month by the District Council. It states as follows: AN AGREEMENT POLICY SUBSCRIBED AND AGREED TO BY ALL MEMBERS OF SHINGLERS LOCAL UNION 478 For quite sometime certain conditions have become prevalent on the job which are detrimental to the overall welfare of the membership of this Local Union. It is only through unified action and agreement within the member- ship of our Local Union that we can successfully bring under control the deplorable condition which has crept into our industry whereby an unreasonable amount of work performed by some of our members and expected to be maintained by some of our employers, and to such an extent that such high quotas are impossible to meet by the majority of our members, which has reflected on their employment as well as having had a disastrous effect on conscientious employers because of the unfair competitive nature of these conditions, therefore, we subscribe and agree to the following policy to be approved and ratified by the Bay Counties District Council of Carpenters, with the understanding that violations of this policy by members of Local Union 478 shall be treated in the same manner as violations of the Local Union and District Council Trades Rules. 1. The minimum amount of work required by a member of the Shinglers Local Union shall be five squares of wood shingles or shakes in eight (8) hours' work, and eight (8) hours shall constitute a day's work. 2. The maximum amount of shingles shall be six squares of wood shingles or shakes in eight (8) hours' work. 3. The minimum amount of composition shingles shall be ten squat es in eight (8) hours, and eight (8) hours shall constitute a day's work. 2 A new edition of this document was approved by a general vice president of the Inter- national Union on August 22, 1961, and was distributed to members of Local 478 in February 1962. Section 35 of the new edition is identical with section 12(a) and (b) of the earlier edition except that it adds one sentence at the end of the first paragraph reading, "For a violation of this Section he shall be fined " 1780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The maximum amount of work shall be thirteen squares in eight (8) hours' work. In reference to the minimum amount of either wood shingles or composition shingles on old work and cut up roofs shall be given due consideration. Violation of this policy shall be preferred against violating members under Section 12, paragraph (b) of the Trade Rules of Local Union 478. I AFFIRMED AND SUBSCRIBED TO THE ABOVE POLICY ON-------- (Date) ------------------------------------------ (Signature) As is readily apparent, this attained the status of -a trade rule maintained by both Respondents. It does not appear in any of the contracts. On or about August 9, 1961, Dolan, as he testified, was informed by Wright that Haywood Roofing's shinglers would be going on a "limitation" basis as to their output. Dolan contended that his crew would not go along with this and Wright replied that "If they don't go along with it, we will take care of them " As all this work is covered by union-shop con- tracts, it would follow, and no contrary contention is made, that these employees were members of Local 478 or of sister locals. William T. Leonard, executive vice president of Home Builders, was informed by Dolan and other members of this new policy expression by Wright. He contacted C. R. Bartalmi, executive secretary- treasurer of the District Council, and arranged a meeting for September 6, 1961 with the latter and Wright. Various other contractors also attended. Leonard protested this limitation upon output to 6 and 13 squares daily for wood and composition shingles, respectively. The chief employer position was that this was establishing a piece rate contrary to the language in their collective-bargaining agreements and further, that production records disclosed that production averages had been substantially higher than the new limits. One employer announced that his average production for the past 5 years was 71/2 squares per day; others expressed themselves to the same effect. According to Dolan, his concern had averaged 8 squares per day. Bartalmi pointed out that the quality of the work had slipped and that older employees could not compete with younger men Mention was made of the fact that this limitation added to the cost of the house Some of the subcontractors protested that their men, having achieved the maximum quota by midafternoon, were spending the remainder of the workday in their auto- mobiles. Bartalini said that this should not be done and that he would take care of the matter. Indeed, he stated that the employer should lay off men who engaged in such conduct 3 Bartalim, as he testified, pointed out that the Union's concern was based upon the fact that a substantial portion of union members were complaining that they could not keep up with faster men, the result being that employers were not retaining the slower members on their payrolls? C. Enforcement of the trade rules The parties differ as to whether these trade rules are to be termed as quotas or norms. Be that as it may, the rules do establish production ceilings and there is no dispute that they were enforced by Respondents in the manner described below. Initially, it should be noted that the complaint attacks Respondents' conduct with respect to eight named employees as well as "other unknown employees." Actual allocation of dues payments to fines was established, as will appear, only in the cases of two. One, Peter Rebiejo, was named in the complaint. The other, Kenneth Disney, was not but the issue involving him was fully litigated. Indeed, his union file was received in evidence early in the hearing as an example of action taken in his case, that of Rebiejo and a third employee The parties agree that eight men, not named in the complaint, were charged with violations of section 36 of the trade rules of the Council; that they were tried by the Council; and that in each case the charge was dismissed There is further agree- ment that 14 named persons, including the 8 named in the complaint, were variously 3 There is no allegation in the complaint of featherbedding within the meaning of Sec- tion 8(b) (6) and I do not pass upon it, although it may well be argued that to the extent payment Is made for hours which are not to be worked, this is conduct which falls within the very limited area which this section regulates I It would seem that the only way Bartalini could realistically take care of the matter, in view of the language of section 12(a) of the trade rules penalizing the workman for stopping work early, would be to instruct the workman to slow down and stretch his output to last 8 hours. BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1781 fined in October and December 1961 for violation of rule 36 and, in several cases, violations of other rules as well. All were fined amounts ranging between $8 and $49.50 with the usual fine amounting to $30. There are three examples of the trial proceedings in evidence That of Leonard Childress, not named in the complaint but offered as the typical case, is one. The proceedings were initiated by a letter from Business Agent Wright of Local 478 to Secretary C. R. Bartalini of the Council on or about August 21, 1961. Therein, Wright preferred charges against Disney for violation of trade rule 36, namely, "Pace setting by laying an excessive amount of squares per day." The trial board of the Council heard the case on August 31 and Childress was fined $30. On Octo- ber 4, Bartalini wrote Childress that the District Council concurred in the verdict. The next two examples lead to the issue under consideration herein, namely, the application of dues payments to the satisfaction of fines. In the case of Peter Rebiejo, Wright wrote to Bartalini on the same day and preferred a charge under section 36, identical with that described above, and also under section 45 "For obstructing the Business Agent in the lawful discharge of his duties in not revealing names." 5 Rebiejo was tried on October 3 by the trial board; was found guilty of violating section 36 and fined $45; and was found not guilty of the other charge On October 11 Bartalini notified him that the District Council concurred in the verdict. The other case is that of Kenneth Disney. Here, Business Agent Wright preferred charges under sections 36, 45, and also 15a Disney was charged under the first two sections with "Laying over a quota of wood shakes" and "obstructing the business representative in the performance of his duties " The charge under section 15a ac- cused him of "Mouthing galvanized nails." This would seem to be a reference to a trade rule of Local 478 forbidding this practice unless the nails were "sterilized blue nails " Disney was tried on December 13 and fined $19 50 for violating sec- tion 15a and $30 for violating section 45. He was acquitted under section 36. On December 26 Bartalini notified him that the District Council concurred in the verdict. It should be pointed out that the present issue is not moot For, according to Business Agent Wright, eight members of Local 478 are currently scheduled to undergo trial for violation of section 36 prohibiting pacesetting or pacemakers The parties are also in agreement that these trials have been and are to be held pursuant to the procedure set forth in the International constitution and general laws of Janu- ary 1961 with particular reference to section 55-57 of the general laws which supersede the laws of the District Council on matters of trial. D. Application of dues to fines Business Agent Wright sent the following form notice to Rebiejo on the letter- head of Local 478: 6 On 10-3-61 you were found guilty under Sections 36 of the Bay Counties District Council of Carpenters By Laws and Trade Rules. The Trial Board has found you guilty and have assessed a fine of $45.00 against you. The report of the Trial Board was concurred in by the District Council of Carpen- ters. As you did not exercise your rights to appeal the action of the Trial Board and made no attempt to pay the fine it becomes mandatory on the part of the local union to apply this fine to your dues, and our General Constitution and Laws provide that failure to pay your dues in full, you may be removed from the job, and after six months' delinquency you may be dropped from membership. Therefore, it is advisable that you meet your obligation in full by 12-30-day of DEC. 1961. Fraternally yours, WARREN B. WRIGHT, Financial Secretary and Business Representative. INCLOSED IS A RECEIPT OF $7.25 WHICH I HAVE CREDITED TO THE ABOVE FINE SEE PAGE 43 PAR. D OF THE [INTERNATIONAL] CONSTITUTION AND LAW W. B. WRIGHT 5 The precise facts behind the latter charge are not disclosed This section in essence requires a member to cooperate with the business agent in a number of respects 'This is an undated form notice with accompanying dues receipt dated November 22, 1961 In view thereof, I find that the letter was sent on or shortly after November 22 Added in ink or pencil to the form notice are the name and address of the addressee, the dates and figures; and the last five lines 734-0 70-64-vol 145-114 1782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The receipt is dated November 22 and is a filled-in form As will be apparent, a line is drawn through the printed phrase "Initiation Fee in Union No." There is also inserted in print the phrase "Applied to D.C. Fine" and I find that D C. stands for District Council. The form in its entirety is as follows: Bay Counties District Council of Carpenters No. 3952 11-22-61 RECEIVED FROM Peter Rebiejo The Sum of Seven and 25/100 Dollars $7 25 Address 2062 Bandoni Ave . San Leandro initiation Yee is $atea Na- Applied to D.C Fine Balance Due 37.75 Final Payment on your application is Due and Payable Within 30 Days from date of your First Payment. Unless extension of time is granted by a repre- sentative of your union for accident , sickness , unemployment or other cause, partial payment made on your application will be forfeited after 30 days. W B. WRIGHT, Business Agent. Wright conceded that a second receipt of identical tenor once existed. Indeed, on February 2, 1962, Wright wrote to Rebiejo with reference to both receipts and stated: This is to inform you that all monies sent in by you for dues for November, December, January and February have been applied to your dues for the said months. Enclosed are your work cards for those months. Receipt #3952 dated 11-22-61 written in the amount of $7 25 and receipt #3956 dated 12-20-61 written in the amount of $7.25 stating that those certain amounts had been applied to the fine levied against you by the Bay Counties District Council of Carpenters on October 4, 1961, are null and void and the records of Local 478 will continue to show that you have not paid any part of the said fine. Inasmuch as you refused to return receipts #3952 and #3956 for correction, this will serve to clarify the situation. [Emphasis added.] Wright was asked to explain the language in the earlier form letter to Rebiejo that "it becomes mandatory on the part of the local union to apply this fine [$45] to your dues." He proffered section 45 D of the general laws of the International as the source of this statement. While this may or may not be an accurate appraisal by Wright of the clause, the fact still remains, and I find, that this was the official position of Respondent Local 478 and for that matter of Respondent District Council.? As stated, the February 2, 1962, letter to Rebiejo announced that his dues pay- ments of $7.25 on November 22 and again on December 20, previously transferred to the payment of his fine, had been reallocated by Respondents to his dues obliga- tions and that the receipts stating that they had been used to pay his fine were null and void. It may be noted that dues payments are made in person or by mail by the members of Local 478 and its sister locals as the contracts do not provide for any checkoff of dues. I find that this reallocation of the dues payments from fines to dues was not an acknowledgment of a clerical error on the part of Respondents. For Wright con- ceded that the dues payments had been deliberately allocated to the outstanding fines in the hope that it would induce other fined members to pay their fines He also testified that he wanted to make two test cases of Rebiejo and Disney. The record further discloses that Wright had personally asked Rebiejo several days prior to Section 45 D states as follows. All fines imposed and assessments legally levied including strike assessments shall be charged by the Financial Secretary to the member from whom due, and must be paid within thirty days to entitle the member to any privilege, rights or donations If a member owes a fine or assessment for a period of thirty days, lie shall be notified by the Financial Secretary that unless the amount owing is paid within thirty days thereafter, his name shall be stricken from membership, except in case of a fine where an appeal is pending. BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1783 sending the February 2 letter to return the two receipts, telling him that the money had been applied to his dues. On that occasion, Rebiejo refused and this led to the sending of the February 2 letter by Wright. In the case of Rebiejo, as in that of Disney discussed below, Wright, with commend- able candor, admitted that the alteration of the receipt from one stating that the dues had been allocated to payment of a fine .back to a straight receipt for dues was done "to avoid trouble " Wright admitted that in December 1961 he sent a letter to Kenneth Disney substan- tially similar to that sent in November to Rebiejo which contained a statement that the recipient "may be removed from the job." The only difference, according to Wright, was that Disney was informed he had been found guilty of violating three specified sections of the trade rules. As in the case of Rebiejo, he was also told therein that it was "mandatory on the part of the local union to apply this fine [$49.50] to your dues." One inconsistency or perhaps inadvertency on the part of Wright presents itself. The file of Disney's trial is in evidence and discloses, as noted, that he was tried for violating three sections of the trade rules, namely, sections 15a, 45, and 36; that he was fined a total of $49.50 for violations of sections 15a and 45; and that he was acquitted of the charge that he violated section 36 by engaging in pacemaking. Wright, however, later testified that this file reflected fines of Disney for violation of all three sections of these trade rules. Be that as it may, this does not affect the basic issue which relates to the applica- tion of dues payments to satisfy a union fine, irrespective of the cause of the fine. And it is crystal clear that Disney's case was viewed and treated by Respondents precisely as that of Rebiejo. Thus, Disney attempted to and nominally did pay $21.50 in dues on December 19, 1961. The carbon copy of his receipt is in evidence and it is the same form used in the case of Rebiejo. After the normal insertion of the payor's name, address, and the amount received, Wright crossed out the line applicable to initiation fee and wrote in "APPLIED TO DISTRICT COUNCIL FINE." Beside this entry, he printed "FINE 13.50 DUES 21.75 TOTAL 35.25 The computation and breakdown is unexplained for the original fine amounted to $49.50. On December 29, Disney visited Wright's home, apparently to make a payment of dues, fines, or both. Wright then informed him that his earlier dues payment which had been applied to his fine had been reallocated and credited to his dues. Wright went further and made some additional entries on the December 19 dues receipt discussed above. He printed "VOID" at the top and, at the bottom, added "CREDITED TO KENNETH DISNEY'S DUES 12-29-60." 8 Because of this visit, Wright deemed it unnecessary to write to Disney as he later did to Rebiejo inform- ing him of this action. As noted in the case of Rebiejo, this was not a clerical error. It was rather a deliberate application of dues payments to fines with the view that it would induce other members to pay their fines, existing and future, and this action was rescinded at a later date in both cases "to avoid trouble." E. Conclusions A union rule forbidding members to produce or work beyond a specified quota would not appear on its face to be a rule concerning the acquisition or retention of membership in a labor organization, this being the precise language used in the proviso to Section 8 (b) (1) (A). However, for the purposes of this decision, I shall assume that this proviso is to be interpreted broadly, contrary to the customary nar- row construction of provisos, and that a rule of this nature may be stretched to fall within the proviso. See Local No. 1400 United Brotherhood of Carpenters, etc. (Pardee Construction Co.) 115 NLRB 126. Nevertheless, on the facts of this case, with union members under union-shop contracts and vulnerable to discharge for nonpayment of dues, a fact not challenged herein, it is my considered view that the transfer of dues payments to the satisfaction of fines, per se, would tend to restrain and coerce employees in the exercise of their rights guaranteed under Section 7 of the Act. Indeed, in the two specific cases considered above, Respondents went further; the men were notified that it was mandatory to apply fines to dues and they were flatly warned that under the union constitution and laws, "[for] failure to pay your dues in full, you may be removed from the job." I cannot think of a more specific threat of loss of employment. 8 Wright inadvertently used the wrong year. 1784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As an initial premise, one logically starts with the language of the Supreme Court in Radio Officers' Union v. N.L.R.B., 347 U.S. 17. The Court pointed out that em- ployees could be "good, bad, or indifferent [union] members ... without imperiling their livelihood" and later that "Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees." Respondents do not contend that the fines in this case constitute dues or fees; nor could they. Another basic premise herein is reflected in a very recent decision by the Court of Appeals for the District of Columbia. International Union of Electrical, Radio and Machine Workers, Frigidaire Local 801 v. N.L.R.B. (General Motors Corp.), 307 F. 2d 679 (C.A.D.C.). The court there used language which followed the above view of the Supreme Court and stated as follows: The general scheme of the Labor Act makes it illegal to require union mem- bership as a condition of employment or to discharge an employee for non- membership. Congress permitted an exception where the collective bargaining contract makes union membership a condition of employment. But that ex- ception was carefully narrowed by the terms of the statute. Even under a valid union security contract a union cannot lawfully demand the discharge of an em- ployee if membership "has been denied . on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required" of members. Can it then reasonably be claimed that an employee under a union-shop contract whose dues payments, without his authorization, have been allocated to the payment of fines; who has been expressly notified of such action; and who has been warned in writing that by failure to pay his dues (a second time) he "may be removed from the job" has not been exposed to conduct which would reasonably tend to restrain or coerce him in the exercise of the rights guaranteed him by Section 7 of the Act? I think not. It would seem fatuous to claim that this was not a genuine threat of economic punishment against one who, ill-advisedly as it may seem, had decided to work for his employer to the utmost of his capability. A labor organization may sue a member for fines or may expel him and deprive him of the benefits and privileges of union membership. It may even deny him membership forevermore. But it may not through a subterfuge punish him by depriving him of his job or threaten to do so other than for willful or unexplained failure to pay his dues. Radio Officers' makes this clear. In the present case, these men have paid their dues as a condition of enjoying continued employment with building contractors in the area. Respondents may require no more. Union Starch & Refining Co. v. N.L.R.B., 186 F 2d 1008 (CA. 7), cert. denied 342 U.S. 815. See also N.L.R.B. v. Local 776, I.A.TS.E., 303 F. 2d 513 (C.A. 9). As the court of appeals pointed out in the Frigidaire Local 801 case, "A union may not treat as adversaries either its members or those potential members whose continued employment is dependent upon union membership." Later in the decision, the court further stated that "Out-of-hand rejection of the money order [in payment of dues], without a word of explanation, amounts in our view to an arbitrary failure on the Union's part to meet its obligations and peculiar responsibilities under the Act " Nor is it of assistance to Respondents that no demand for discharge was made with respect to Rebiejo and Disney. The conclusion is warranted that an employee covered by a union-shop contract whose dues payments have been allocated to fines is restrained and coerced when he is informed of this action even without being notified that a failure to pay his dues may result in his loss of employment. I believe that it would take an unduly strong-minded, foolhardy, and unrealistic individual to be unmoved by such conduct in so thoroughly organized an industry .9 9I do not believe that documentation is necessary to demonstrate that the building trades, with several partial regional exceptions, are thoroughly and solidly organized by labor organizations. Nor may it be logically contended that the construction industry plays a minor role in the industrial complex of the United States. According to a state- ment by an official of the AGC appearing in the June 16 issue of Business Week, p. 86, the construction industry is a $78 billion a year industry as contrasted with the steel industry's production of $14 billion a year While the figures of the U.S. Department of Commerce of which I take notice refer to new construction as reaching $60 billion per annum in 1962, this conclusion would be equally applicable in either instance Finally, it is common knowledge that production quotas exist with respect to other building trades Hence, this is not a problem involving but one local union, indeed, there are 29 locals in this one District Council alone. BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1785 As the Board has recently pointed out in an analogous situation, the fact that a sanction has not been enforced by a labor organization "does not preclude the finding of a violation, for it is the restraining and coercive effect of the 1-year sanction, which is tantamount to a threat of loss of employment opportunity in the contract area, that contravenes the Act." District Council No. 19 and Local 334, Painters (Pitman), 137 NLRB 682. In a somewhat similar situation, United Stone and Allied Products Workers, Local No. 24, (Gibsonburg Lime Products Company), 121 NLRB 914, the Board adopted language by Trial Examiner Arthur Leff that: Just as employees have a right protected by the Act to assist a union by sup- porting its position on a grievance through testimony or otherwise, so, too, they have a similarly protected right to refrain from assisting a union through nonsupport of, or even active opposition to, the Union's position. A union which threatens employees with damage to their job tenure for failing thus to aid its cause engages in illegal restraint and coercion within the meaning of Section 8(b)(1) (A). The report later pointed out that: It must be remembered that the employees in question were covered by a union-shop contract which required them to remain union members as a condition of employment, and which did not on its face indicate any exception from the generality of that requirement. In these circumstances, Etchison [Respondent] must have been aware, or at least reasonably should have anticipated, that a threat of membership ouster unaccompanied by any quali- fying explanation might well be interpreted by the employees addressed as carrying with it a threat of job ouster. The Board has found that a union engaged in an unfair labor practice within the meaning of Section 8 (b) (1) (A) by warning employees that they risked discharge under the terms of a union-security clause unless they paid sums of money in excess of periodic dues and initiation fees. I would assume that the double payment of dues would so qualify. The Board stated, "A union may not lawfully threaten to do what would be unlawful for it to do." The Eclipse Lumber Company, 95 NLRB 464, enfd. 199 F. 2d 684 C.A. 9). See also Florence Brooks, 131 NLRB 756, and Inter- national Association of Bridge, Structural & Ornamental Iron Workers, Local Union No. 84 (Buie Building Materials Co ), 112 NLRB 1059. The Board has elsewhere pointed out that Section 8(b) (2) of the Act proscribes "not only a Union's actual causation of discriminatory employer action, but also its attempted causation of such employer action. Further, Section 8(b) (1) (A) of the Act more broadly interdicts any union conduct threatening the job security of an employee or otherwise actually endangering it because of an employee's refusal or failure to abide by union mem- bership conditions. . . " [Emphasis added ] Marlin Rockwell Corporation, 114 NLRB 553 The Court of Appeals for the Seventh Circuit has noted that "Coercive action, whether by way of fine, discharge or otherwise, which deprives a member of his right to work and his employer of the benefit of his services, cannot be said to relate only to the internal affairs of the union." Allen Bradley Company v. N.L.R.B., 286 F. 2d 442. In similar fashion, the Board has recently pointed out in International Union, United Automobile, etc. Workers and Local 899, United Automobile Workers (John I. Paulding, Inc.), 137 NLRB 901 as follows: Our conclusion that the Respondents had no right to demand dues of the 10 employees under its maintenance-of-membership clause leads us inevitably to to the conclusion that the letters sent to the employees demanding payment of such dues restrained and coerced them in the exercise of their right to refrain from union activities. We therefore find that the letters of February 28 de- manding dues from the 10 employees were also violative of Section 8 (b) (1) (A) of the Act. In essence then, with public policy dictating that the union-shop proviso is to be narrowly contrued, one must conclude that an employer or a labor organization 1which tampers with dues payments does so at its peril. In the present case, union members paid their dues and were entitled to have them credited as such. Re- spondents chose to do otherwise. I perforce conclude that these union members, covered by a union-shop contract, whose dues were allocated to fines were by con- duct, standing alone, restrained and coerced in the exerise of their rights to refrain 1786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from engaging in union and concerted activities as guaranteed by Section 7 of the Act. The simple fact is that Respondents by allocating dues payments to fines rendered these two men vulnerable to discharge for loss of good standing as union members. Morevore, dues payments were required de novo on threats of loss of employment. In sum, assuming that the conduct of Respondents falls within the proviso that Respondents may regulate the acquisition or retention of union membership, a result which I accept but doubt, it does not follow that Respondents, with their members bound to a union-shop contract, may reallocate dues payments to the payment of other union obligations as fines and thereby imperil the employment status of these workmen. The Radio Officers' decision commands otherwise. It hardly requires stating that the payment of dues under a union-shop contract amounts to a lifeline to continued employment. If dues payments are allocated to the payment of fines, the erstwhile dues payor is at that point placed in danger of discharge. I deem it a fair statement that a reasonable and prudent man would perforce be restrained and coerced by such conduct in the exercise of his rights under Section 7 of the Act to refrain from engaging in the union activity of re- stricting output. The Board recently noted that "except as permitted by the Section 8(a) (3) proviso, the union's right to prescribe rules [under the proviso to Section 8 (b) (1) (A) ] does not extend to interference with the relationship between employee and employer." UA.W. and Local 899 U.A.W. (Paulding), supra. This case also disposes of Respondents' contention that those fined have no standing herein because they did not resort to the appeal provisions of Respondents' constitution and laws. I find, in view of the foregoing, that by allocating the dues payments of employees covered by a union-shop contract to the payment of fines, Respondents have re- strained and coerced employees in the exercise of the right to refrain from engaging in union activities as guaranteed by Section 7, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act I further find, independently, that by threatening union members with loss of employment for failure to pay their dues a second time, under these circumstances, Respondents have violated Section 8(b)(1)(A) of the Act. N.L.RB. v. Brotherhood of Painters etc. (Spoon Tile Co.), 242 F. 2d 477 (C.A. 10) and N.L.R.B. v. Philadelphia Iron- Works, Inc, and Local 13, International Brotherhood of Boilermakers, etc, 211 F. 2d 937 (C.A. 3). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connec- tion with the operations of the employers 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 thereof. V. THE REMEDY Having found that Respondents have engaged in unfair labor practices violative of Section 8 (b) (1) (A) of the Act, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as Respondents have already reallocated dues payments. to their original purpose, viz, the satisfaction of dues, no recommendation to that effect is made. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO, and Shinglers Union, Local 478, International Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2 Associated Home Builders of the Greater East Bay, Inc., and its members, are employers within the meaning of Section 2(2) of the Act. 3. Respondents Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO, and Shinglers Union, Local 478, International Brotherhood of Carpenters and Joiners of America, AFL-CIO, have engaged in unfair labor BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS, ETC. 1787 practices within the meaning of Section 8(b)(1)(A ) of the Act by (a) transferring the dues payments of members covered by a union-shop contract to the satisfaction of fines , and independently by (b) threatening said employees with loss or impair- ment of employment for failure to pay a second time dues so transferred. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce 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, it is recommended that Respondents Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO , and Shinglers Union, Local 478, International Brotherhood of Carpenters and Joiners of America, AFL-CIO , San Francisco and Oakland, respectively, their respective officers, representatives , agents, successors, and assigns shall: 1. Cease and desist from. (a) Transferring dues payments by any of its members who are covered by union-shop contracts to the satisfaction of union -imposed fines. (b) Threatening members covered by union-shop contracts with loss of employ- ment for failure to pay a second time dues payments which have been trans- ferred by Respondents to the satisfaction of union -imposed fines. (c) In any like or related manner restraining or coercing members covered by union-shop contracts in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent that such union membership may be required as a condition of employment , as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at their respective offices and meeting halls in San Francisco and Oak- land, California , copies of the attached notice marked "Appendix ." 10 Copies of said notice , to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by an official representative of Respondent District Council and Respondent Local 478, be posted by them immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by other material. (b) Notify the Regional Director for the Twentieth Region, in writing within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps they have taken to comply herewith." "In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner " in the notice In the further event that the Board ' s Order be enforced by a decree of a United States Court of Appeals , the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." "In the event that this Recommended Order be 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 Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL OUR MEMBERS , OFFICERS , REPRESENTATIVES , AND AGENTS 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 Rela- tions Act, as amended , we hereby notify you that: WE WILL NOT transfer dues payments by any of our members who are covered by union -shop contracts to the satisfaction of union-imposed fines. WE WILL NOT threaten members covered by union -shop contracts with loss of employment for failure to pay a second time dues payments which have been transferred by us to the satisfaction of union-imposed fines. WE WILL NOT in any like or related manner restrain or coerce members covered by union-shop contracts in the exercise of the rights guaranteed by 1788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act, except to the extent that union membership may be re- quired as a condition of employment as exercised in Section 8(a) (3) of the Act. BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) SHINGLERS UNION, LOCAL 478, INTERNATIONAL BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (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. Employees may communicate directly with the Board' s Regional Office, 830 Market Street, Room 703, San Francisco, California, Telephone No. Yukon 6-3500, Extension 3191, if they have any question concerning this notice or compliance with its provisions. Becker & Sons , Inc. and Teamsters Union Local 795, affi liated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Case No. 17-CA- 2173. February 14, 196.4 DECISION AND ORDER On November 4, 1963, Trial Examiner Owsley Arose issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. He also found that allegations of other unfair labor practices set forth in the complaint had not been sustained. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with the following : I In the absence of exceptions thereto, the Board adopts pro forma the Trial Examiner's findings that the allegations of the complaint relating to the Respondent's alleged sur- veillance and creating the impression of surveillance, and with respect to the discharge of Kenneth Esicks, have not been sustained. 145 NLRB No. 169. Copy with citationCopy as parenthetical citation