Bay Counties District Council of Carpenters, Etc.

National Labor Relations Board - Board Decisions

Feb 14, 1964

145 N.L.R.B. 1775 (N.L.R.B. 1964)

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.