Chauffeurs, Teamsters and Helpers, Etc.

National Labor Relations Board - Board Decisions

Oct 21, 1965

155 N.L.R.B. 273 (N.L.R.B. 1965)

CHAUFFEURS, TEAMSTERS & HELPERS, ETC. 273
unit, and that the unit here sought is inappropriate. We shall there-
fore dismiss the petition.
[The Board dismissed the petition.]
Chauffeurs, Teamsters and Helpers "General" Local No. 200,
affiliated with International Brotherhood of Teamsters, Chauf-
feurs, and Warehousemen and Helpers of America [ State Sand
and Gravel Company ; Hillview Sand and Gravel , Inc.] and
Fred H. Sinner and Arthur A. Dietrich . Case No. 30-CB-9
(formerly 13-CB-1654). October 21, 1965
DECISION AND ORDER
On January 19, 1.965, Trial Examiner W. Gerard Ryan issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch anti Members Brown and Zagoria].
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 and the entire record in this case, including the
foregoing exceptions and briefs, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the follow-
ing additions and modifications.
1. The complaint alleges, and the Trial Examiner found, that the
Respondent violated Section 8(b) (2) of the Act by causing Hillview
Sand and Gravel, Inc., hereinafter called Hillview, to discharge
employee Sinner and by causing State Sand and Gravel Company,
hereinafter called State, to discharge and to reduce the seniority of
employee Dietrich.
The Respondent initially contends that the complaint in this pro-
ceeding is barred by the 6-month proviso to Section 10(b) of the Act.'
1 This provides that:
no complaint shall issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board and the service of
a copy thereof upon the person against whom such charge is made . . . .
155 NLRB No. 31.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts relating to this contention are as follows : The Respondent's
letters requesting the discharge of Sinner and Dietrich were mailed on
October 15, 1963; they were received by the respective employers on
October 16; the employees were discharged on October 19 and 21,
respectively; the charge was filed on April 13, 1964, and was served
on the Respondent on April 16.2 Thus, while the requests for dis-
charges were mailed outside the 6-month period provided in Section
10(b), the discharges occurred within the 10(b) period. In Plumbers
f Pipe Fitters Local Union 214 (D. L. Bradley Plumbing and Heating
Co.),3 the Board held in a similar factual context that although the
respondent union's attempts to cause an employee's discharge began
before the 10(b) period, since the coercion "was clearly efficacious
within the 10(b) period at the time of the discharge," the complaint
alleging a violation of Section 8 (b) (2) was not barred by the 6-month
limitation. We believe that the Bradley decision is controlling in the
instant case. Since the Respondent is being charged with unlawfully
having caused the discharges, it is apparent that the unfair labor prac-
tices were not consummated until the discharges took place, which was
within the 10 (b) period. Indeed, since here, unlike Bradley, the letters
requesting the discharges were received by the Employers within the
10(b) period, the conclusion that the complaint is not barred is even
more compelling than in Bradley. Accordingly, we find that the com-
plaint is not barred by Section 10 (b).
2. We agree with the Trial Examiner that the Respondent violated
Section 8(b) (2) of the Act by causing the discharges of Dietrich and
Sinner.
Hillview and State are engaged in business in and around Plilwau-
kee, Wisconsin, and have been members of the Allied Construction
Employers' Association since at least 1959. Since June 1, 1959, the
Association has been a party to collective-bargaining agreements with
the Respondent which contain a union-security clause, providing,
among other things, that its provisions shall not be enforced "unless
the requirements of State Law, if any, are met." Under Wisconsin
Law, an employer and a union may not enter into an "all Union," i.e.,
a union-security, agreement, unless two-thirds of the employees
involved who vote approve such agreement. In August 1963, follow-
ing a petition filed by the Respondent with the Wisconsin Employment
Relations Board (WERB), a referendum was conducted among the
employees of members of the Association. On August 14, the WERB
certified that the required number of employees voted in favor of an
"all Union" agreement.
2 The Trial Examiner found that the charges were served on April 13 However, the
complaint alleges that the charge was served on April 16, and, while the record is not
entirely clear on this issue, it appears that in fact the charge was .lot served until
April 16.
3 131 NLRB 942, enfd. 298 F. 2d 427 (C.A. 7).
CHAUFFEURS, TEAMSTERS & HELPERS, ETC. 275
Sinner and Dietrich have been employed by Hillview and State,
respectively, since 1956 and 1957. Although covered by the Associa-
tion contracts, they paid no union dues between 1959 and 1963. Shortly
before the referendum, each of these employees was approached by the
Respondent's shop steward, who mentioned the forthcoming referen-
dum, and stated in substance that if they did not pay their back dues
they would be discharged. Sinner made no tender of dues, but Die-
trich made an agreement with the Respondent's steward that on each
payday he would pay whatever he could in back dues. Pursuant to
this agreement, and prior to the referendum, Dietrich paid $25 and
received a receipt from the Respondent. Shortly after the referendum,
Dietrich and Sinner were again told by the stewards that they would
lose their jobs if they were not current in their dues. On October 4,
1963, Respondent sent letters to employees, including the two involved
herein, informing them that they had been suspended "for non-
payment of dues," and directing them to appear at the union office to
avoid losing their jobs. Sinner did nothing in response to this letter
and on October 15 the Respondent sent a letter to Hillview request-
ing Sinner's discharge. On October 17, Sinner appeared at the Re-
spondent's office, offering to pay Ranney, the Respondent's secretary-
treasurer, initiation fees and the dues which he owed from the date of
the referendum. Ranney refused the offer and insisted that Sinner
would have to pay $330 or be discharged. On October 19, Hillview
discharged Sinner.
After receiving the Respondent's October 4 letter, Dietrich tendered
$20 in back dues to his steward, who returned it on October 11 advis-
ing Dietrich to see Ranney at Respondent's office on October 15.
Although appearing at the Respondent's office, Dietrich was unable to
see Ranney, and on October 15, the Respondent sent a letter to State
requesting the discharge of Dietrich. On the same day Dietrich spoke
to Ranney, who made an agreement with Dietrich's attorney, which
was later confirmed in writing, that Dietrich was to pay his back dues
amounting to $264 at the rate of $25 per month, including dues from
November 1959, "in order for Dietrich to continue his employment."
Respondent, however, did nothing to countermand its request for Die-
trich's discharge, and he was not called to work on October 21. He
was rehired as a new employee on October 24 and worked until Novem-
ber 12, when, because of his low position on the seniority list, he was
laid off.
We find initially, in agreement with the Trial Examiner, that the
Respondent's requests for the discharges of Dietrich and Sinner were
based on their delinquency dating from 1959, and not, as contended by
the Respondent, solely on their delinquency for the period beginning
on August 14, 1963, the date on which the results of the Wisconsin
referendum were certified. In the first place, before the referendum
212-809-66--vol. 155-19
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took,,place, the, Respondent's steward told the employees involved that
they would be discha;rged unless they paid their back dues. In addi-
tion,,the Respondent's letters of October 15 to the Employers request-
ingtliedischarges made reference to the fact that these employees had
been' suspended from the Union for nonpayment of dues. Since, under
the Respondent's bylaws, an employee could be suspended only if he
was 3 months in arrears in his dues, and since 3 months had not elapsed
between August 14 and October 15, the requests for discharge must
have been predicated at least in part on the employees' pre-August 14
dues delinquency. Finally, and most significantly, after the request
for Dietrich's discharge, the Respondent wrote to Dietrich's attorney
stating that he owed $264 in dues, that the amount included dues from
November 1959, and that "in order for Dietrich to continue his employ-
ment" as State, he would have to pay back dues at the rate of $25 a
month. -Also, the Respondent refused Sinner's offer to pay initiation
fees and dues owed from the date of the referendum and it insisted that
he pay $330 or be discharged, which sum obviously included dues which
had accrued prior to the referendum .4 In view of these facts and on
the basis of the record as a whole, we find that the Respondent's re-
quests for the discharges of Dietrich and Sinner, which did not distin-
guish between the employees' liability for.back dues and current dues,
were based in substantial part on their dues delinquency for the period
prior to August 14, 1963.5
Without reaching the question whether the Respondent could law-
fully require dues for the period preceding the certification of the
results of the Wisconsin referendum, the Trial Examiner found that
the Respondent's requests for discharge were unlawful because they
were based in part on the fact that the employees involved did not pay
dues for the period between June 1 and August 16, 1962, when, in the
view of the Trial Examiner, there was no union-security agreement
in effect, and because the employees involved did not pay "fines" of $1
for each month after they were 3 months in arrears. We consider it
unnecessary to pass upon the Trial Examiner's findings respecting the
Respondent's right to collect the alleged "fines" and dues for the period
between June 1 and August 16, 1962, because, in our view, the requests
for discharges were unlawful in any event for the following reasons.
We have already noted that the union-security clauses in the bargain-
ing agreements between the Association and the Respondent explic-
itly provided that they would not be enforced "unless the requirements
of State Law, if any, are met"; that, under Wisconsin law, union-
security agreements were not permitted unless approved by two-thirds
of the employees in the unit; and that it was not until August 14,1963;
s At the time of the referendum, the Respondent's monthly dues were $7, including "a
$1.00 per month fine for all delinquent months ," and its initiation fee was $50.
5 See Katwnal Lead Company, Titamum Division , 106 I NLRB 545.
CHAUFFEURS, TEAMSTERS & HELPERS, ETC.' 277
that WERB certified that the employees of the members of the Associ-
ation approved the union-security agreement. Notwithstanding these
facts, the Respondent contends that the union-security agreements
were enforceable in Wisconsin even before the referendum because
they came within the provisions in the Wisconsin law exempting
union-shop agreements covering employees primarily in the construc-
tion industry and those which had been continuously in effect since
May 5, 1939. However, the Respondent petitioned the WERB for the
referendum which would validate these union-security agreements and
the Respondent did not ask the Employers to discharge delinquent
employees until after the referendum had taken place. In view of
these circumstances, including the terms of the union-security agree-
ment and the fact that the Respondent itself acted on the premise that
its union-security contracts were not exempted from the requirements
of the Wisconsin statute, we find that it was the contractual intent of
the parties to defer the operation and enforceability of the union-
security clause until the requirements of the Wisconsin statute had
been met, and this did not occur until August 14, 1963.6 As we have
found that the Respondent's requests that Dietrich and Sinner be dis-
charged were based in substantial part on their pre-August 14 dues
delinquency, we find, in agreement with the Trial Examiner, that such
request violated Section 8(b) (2).7
We further find that the Respondent violated Section 8 (h) (2) by
causing the discharge of employee Dietrich for the following addi-
tional reasons. As described more fully above, after it requested Die-
trich's discharge, the Respondent agreed that Dietrich could continue
his employment at State if he paid his back dues at the rate of $25 a
month but thereafter the Respondent did nothing to countermand its
request for Dietrich's discharge. In International Longshoremen's dl
Warelbousemen's Union, Local 6 (Colgate Palmolive Company), 138
NLRB 1037, a majority of the Board distinguished General Motors
Corporation, Packard Electric Division; 134 NLRB 1107,8 and held
that the Respondent union violated Section 8 (b) (2) by causing the
discharge of an employee where, after the request for discharge, the
Union accepted payment of his back dues. Although Chairman McCul-
loch and Member Brown dissented in Colgate and would have found
that the Union did not waive its conceded right to assert dues delin-
quency as a ground for discharge, they deem the instant case distin-
6 Cf. Local # 34, International Molders and Allied Workers Union , AFL-CIO (Malleable
Iron Range Company), 150 NLRB 913.
7International Union , United Automobile , Aerospace, Agricultural Implement Worker s
of America (UAW) AFL-CIO, and its Local 899 (John I Paulding, Inc ), 142 NLRB 296,
300, footnote 3 ; International Union, United Automobile , Aircraft, Agricultural Imple-
ment Workers of America, AFL-CIO, and Local 899 , UAW-AFL-CIO (John I. Paulding,
Inc ), 130 NLRB 1035, enfd 297 F. 2d 272 (C A. 1).
8 In General Motors , the Board held that an employee tender of back dues after the
union requests his discharge for dues delinquency will not prevent a lawful discharge
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guishable from Colgate. There, the employee tendered her dues to
a clerk in the union office; the clerk did not make an entry of timely
payment in the employees' dues book; and the clerk did not tell the
employee that termination of her membership was rescinded but rather
gave the employee notice to appear before the union grievance commit-
tee. Here, however, the employees dealt directly with an officer of
Respondent, i.e., its secretary-treasurer; the Respondent expressly
agreed that Dietrich could keep his job if he paid his back dues on a
monthly basis; and Dietrich's attorney made on $25 payment to the
Respondent on Dietrich's behalf, around the end of October 1963.
In view of these circumstances, we find that by its request to discharge
Dietrich, the Respondent violated Section 8(b) (2).
AMENDED CONCLUSIONS OF LAW
3. By causing Hillview to discriminate in regard to the hire and
tenure of employment of Sinner by terminating his employment on
October 19, 1963, in violation of Section 8 (a) (3) of the Act, the Re-
spondent has violated Section 8(b) (2) of the Act.
4. By causing State to discriminate in regard to the hire, tenure of
employment, and other terms and conditions of employment of Die-
trich by terminating his employment on October 21, 1963, and, as a
result of such termination, rehiring him as a new employee on Octo-
ber 24, 1963, and thereby reducing his seniority, further resulting in
his layoff on November 12, 1963, because of such reduction, in violation
of Section 8(a) (3) of the Act, the Respondent has violated Section
8(b) (2) of the Act.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner W. Gerard Ryan at a hearing in
Milwaukee, Wisconsin , on September 2 and 3 , 1964, on the complaint of General
Counsel as amended at the hearing and the answer of Chauffeurs, Teamsters and
Helpers "General" Local No. 200, herein called the Respondent . The issue litigated
was whether the Respondent violated Section 8(b)(2) of the Act.' The parties
waived oral argument . The General Counsel and the Respondent have filed briefs.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE EMPLOYERS
Hillview Sand and Gravel , Inc., herein referred to as Hillview , is, and has been
at all times material herein , a corporation duly organized under and existing by
virtue of the laws of the State of Wisconsin.
State Sand and Gravel Company, herein referred to as State , is, and has been at
all times material herein, a corporation duly organized and existing by virtue of the
laws of the State of Wisconsin.
i The charge was filed on April 13, 1964, and was served on the Respondent on April 15,
1964. The complaint issued on June 4, 1964.
CHAUFFEURS, TEAMSTERS & HELPERS, ETC . 279
At all times material herein Hillview has maintained its principal office and place
of business at 20695 West National Avenue in the city of New Berlin, State of Wis-
consin, herein called Hillview plant, and is, and has been at all times material herein,
engaged at said plant and location in the manufacture, sale, and distribution of sand
and gravel and related products.
At all times material herein State has maintained its principal office and place of
business at 10833 West Watertown Plank Road in the city of Milwaukee, State of
Wisconsin, herein called the State plant, and is, and has been at all times material
herein, engaged at said plant and location in the business of mining and manufac-
ture, sale, and distribution of concrete and related products.
During the past year Hillview in the course and conduct of its business operations
purchased, transferred, and delivered to Hillview plant sand, gravel, and other goods
and materials valued in excess of $75,000 of which goods and materials valued in
excess of $50,000 were received from other enterprises located in the State of Wis-
consin which other enterprises had received goods and materials directly from
States other than the State of Wisconsin. _t
During the past year State in the course and conduct of its business operations
purchased, transferred, and delivered to State plant trucks and other equipment and
goods and materials valued in excess of $75,000 of which trucks, equipment, goods,
and materials valued in excess of $50,000 were transported to said plant from and
received from other enterprises including, inter alia, International Harvester Com-
pany and Rex Chain Belt Company located in the State of Wisconsin which other
enterprises had received the said goods and materials directly from States other than
the State of Wisconsin.
State and Hillview are and have been at all times material herein members of the
Allied Construction Employers Association, an association organized for the pur-
pose, inter alia, of engaging in collective bargaining on behalf of its members.
During the past year the various members of the Allied Construction Employers
Association, all located within the State of Wisconsin, have purchased, transferred,
and delivered to their respective facilities within the State of Wisconsin in excess of
$50,000 worth of goods and materials from points outside the State of Wisconsin.
Hillview, State, and Allied Construction Employers Association are now and have
at all times material herein each individually and all collectively an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is, and has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
The complaint alleged and the answer denied that on or about October 18, 1963,
the Respondent caused or attempted to cause Hillview to discharge employee Fred H.
Sinner and State to discharge and/or reduce the seniority of Arthur A. Dietrich
because they failed and refused to pay dues to Respondent for a period during which
there was no valid union-security agreement as required by Section 8(a)(3) of the
Act.
The complaint was amended at the hearing to allege that Respondent on or about
October 18, 1963, caused or attempted to cause Hillview to discharge Sinner and
caused or attempted to cause State to discharge or reduce the seniority of Dietrich
because they failed to pay fines to the Respondent.
Respondent objected to the amendment of the complaint on the ground that there
is nothing in the charge to sustain or permit the amendment to the complaint and
therefore the amendments are barred by Section 10(b) of the Act. The Respondent
further contended that there is no charge that alleges the facts alleged in the amend-
ments; that there is no charge even remotely referring to the question of fines; and
by such amendment the question of fines completely changes the General Counsel's
theory in the original complaint which the Respondent asserts is different from the
question of fines as the night from day I permitted the amendment of the complaint.
Since the charge was served on April 15, 1963, the 6-month period under Section
10(b) of the Act began on October 15, 1963.2 I find no merit in the objection by
2Local Union No. 369 of the International Brotherhood of Electrical Workers, AFL-
CIO, et at. ( Charles A . Bentley, d/b/a Bentley Electric Company ), 143 NLRB 1297, 1301
( obviously November 11, should read October 11 , in line 6, page 1301).
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent that the complaint is barred by Section 10(b) of the Act. The letters
from the Respondent requesting the discharges were mailed on October 15, 1963,
and'received by Hillview and State on October 16.
Respondent is the collective-bargaining representative of the truckdrivers, ware-
housemen and helpers employed by the members of the Allied Construction Employ-
ers Association. Hillview and State, the respective employers of Sinner and Dietrich,
are members of the above association and are parties to the collective-bargaining
agreement between the association and Respondent.
The collective-bargaining agreement presently in effect was executed on August 6,
1962, with a term extending to May 31, 1968. The preceding agreement had termi-
nated on May 31, 1962, and at the expiration of that agreement a strike had occurred.
Respondent has had a collective-bargaining relationship with the building industry
in Milwaukee since 1938 and contracts with it each year since then.
The current labor agreement between Respondent and the association contains,
inter alia, the following provisions:
ARTICLE II
Recognition and Security Section 1.
(b) All present employees who are members of the Union on the effective
date of this subsection shall remain members of the Union in good standing as
a condition of employment. All present employees who were not members of
the Union and all employees who are hired hereafter shall become and remain
members in good standing of the Union as a condition of employment on and
after the 31st day following the beginning of their employment or on and after
the 31st day following the effective day of this subsection, which ever is later.
The provisions of this subsection shall not be enforced unless the requirements
of the State law, if any, are met.
Wisconsin law requires that before a union and an employer may enter into an
.,all Union" agreement, a referendum must be held wherein a two-thirds majority
of employees voting approve such an agreement. (Wisconsin Administrative Code,
section ERB 111.06 (1).) The amended statute further provides that any "all Union"
contract in existence on May 5, 1939, and renewed or amended continuous since
that time shall be deemed valid and enforceable in all respects. The amended statute
continues, "It is not a violation of any provision of this chapter for an employer
engaged primarily in the building and construction industry where the employees of
such employer in a collective-bargaining unit usually perform their duties on build-
ing and construction sites, to negotiate, execute and enforce an all union agreement
with a labor organization which has not been subject to a referendum vote as pro-
vided in this subchapter."
The Respondent in its answer asserted that the National Labor Relations Board
lacks jurisdiction over the subject matter of the issue raised in the charge and com-
plaint. The General Counsel contends that the union-security agreement between
Respondent and the association, binding Hillview and State, by its terms, could not
be enforced or applied until the requirements of State law had been satisfied. The
Respondent contends that under Wisconsin law a referendum was unnecessary in
view of the fact that the contracts with union-security provisions were valid under
Wisconsin law without a referendum. The Respondent claims that it did not have
the obligation to participate in the referendum which was held in 1963 and that the
agreement was in continuing compliance with State and Federal law at all times
material to this proceeding.
I find it unnecessary to make any finding which requires interpretation of State
law that the collective-bargaining agreement was or was not legal prior to the refer-
endum in August 1963. It is sufficient for the purposes of this case that the Respond-
ent was demanding dues at least for a period from June 1, 1962, to August 6, 1962,
during which time there was no collective-bargaining agreement in effect. Whether
or not the Respondent is legally entitled to dues under the union-security provision
in prior contracts antedating the referendum is a matter for the proper State tri-
bunals. A union may impose dues, initiation fees, fines, etc., as to its membership
but under Board case law may not condition employment rights on payment of fines.
In short, this case as hereinafter found presents the situation where the Respondent
sought and obtained the discharges of Sinner and Dietrich for nonpayment of fines
and for nonpayment of dues for a period during which no collective-bargaining
agreement was in existence (June 1, 1962, to August 6,1962).
CHAUFFEURS,' TEAMSTERS & HELPERS, ETC. 281
'In August 1963,' the first Wisconsin Employment Relations Board referendum on
the question of an all union agreement was held among the employees of the asso-
ciation. The vote favored the all union agreement and that result was certified on
August 14, 1963.
Prior to October 15, 1963, neither State nor Hillview had been requested by
Respondent to enforce any union-security agreement through the discharge of non-
member employees.
Fred H. Sinner began working for Hillview as a truckdriver in 1956. He was a
member of Local 695 Teamsters when he started this employment. Sometime in
4958 he transferred to Respondent Local 200.
Sinner paid dues to the Respondent for about 10 months. The last time he paid
any dues to the Respondent (except for an occasional payment) was in October 1959.
As of October 1963, Sinner, according to Respondent's computations, was approxi-
mately $330 in arrears. That amount was computed as follows: Prior to Decem-
ber 1, 1961, Respondent's dues were $5 per month if paid currently and $6 per month
if 3 or more months in arrears; after January 1, 1962, the dues were $6 per month
and $7 per month if delinquent. The dues Sinner allegedly owed included the $1
per month increase because he was in arrears.
About 2 weeks before the referendum Sinner had a conversation with Respondent's
steward at Hillview. Moczynski, the steward, told Sinner in a conversation about
the referendum, "You better pay up your union dues if you intend to keep on work-
ing here." In the week following the referendum Moczynski told Sinner that unless
he paid up his back dues he probably wouldn't be able to work at Hillview any longer.
On October 4, 1963, Respondent sent letters to those employees who had failed to
pay dues informing the employees that they had been suspended for nonpayment of
dues and told them to report to the union office within a week to avoid losing their
jobs. The letter was signed by Ranney, secretary and treasurer of the Local.
On October 15, 1963, Respondent sent Hillview, Sinner's employer, a letter request-
ing Sinner's discharge.
On October 18, 1963 (Friday),,a day on which he worked, Sinner was informed
by his employer, Mr. Bartelt, that Hillview would have to send him a letter of dis-
charge. On, October 19, 1963, Sinner received a letter from Hillview stating:
Under date of October 15, 1963, we received a letter from Local 200 of the
Teamsters Union advising us you had been suspended and instructing us to
remove you from our employment. Because of our union contract, and the
recent referendum of Local 200, we are hereby permanently discharging you
from our employment effective October 21, 1963.
About a week following the referendum Sinner testified that Steward Moczynski
asked him why he did not go down and pay up his dues and that Sinner replied that
he would not pay them. Moczynski replied that he probably would not be able to
work there any longer if he did. ,
Sinner testified that on September 27 he went to the union hall and asked for
Ranney. He was told he was not in and Sinner testified he returned the next day.
Sinner continued to testify that on October 7, 1963, he went to the union hall in the
neighborhood of 3 or 3:30 or 4 o'clock in the afternoon.3 He testified he asked
Ranney "what this business of back dues was all about"; that Ranney explained he
would have to pay $330 or he probably would be discharged. Sinner testified he
told Ranney he did not think they were entitled to those dues and told Ranney he
would pay an initiation fee plus dues back to the referendum. Sinner testified that
Ranney said he could not accept that; he would have to pay $330. Sinner continued
to testify that he worked on October 18 and one of his employers, Bartelt, mentioned
he would have to send him a letter of discharge. Between 3 and 4 p.m., after Bartelt
had spoken to him, Sinner testified he told Moczynski that he had got the letter and
Moczynski advised him to go to the union office. Sinner thereupon went to the union
office and offered to pay Johannes an initiation fee plus dues back to the referendum
but Johannes said he owed $330 and could not accept .4 Sinner continued to testify
that he received a letter from the employer on October 19, concerning his discharge;
that he went to the union office three times on October 21, and told Johannes he
aLater in his testimony Sinner admitted that it is possible that October 17 was the
only day. he punched out early and went to the union office arriving there after 3 pm.
and talked to Ranney for the first time. Ranney testified October 17 was the only time
he saw Sinner at the union office.
' Clarence Johannes was a business representative of Respondent.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would pay the initiation fee plus dues back to the referendum but Johannes said he
could not accept it. When Johannes said that Sinner had to pay $330 Sinner replied
that he would not buy the job. Sinner testified that he saw Johannes on two further
occasions that day at the union hall and again repeated his offer to pay an initiation
fee-and dues back to the referendum but Johannes said there was nothing he could
do for him unless he paid the $330, whereupon Sinner walked out. Sinner testified
that he had no conversations with Johannes until after he was discharged. At one
part of his testimony he denied that it was not until after he was discharged that he
saw Ranney . From the record it can be established that the first time that Sinner
saw Ranney was on October 17, 1963. Ranney testified that on October 17, 1963,
Sinner came to the office but did nothing but rave and rant about the illegality of the
referendum and Ranney ordered him to leave. Ranney testified that Sinner did not
make any offer to pay his dues. On further cross-examination by the Respondent
when called during the presentation of the Respondent 's case, Sinner testified that
it is possible October 17 , 1963, was the only day he punched out early and went to
the union office arriving there sometime after 3 o'clock in the afternoon and talked
to Ranney for the first time . Thus I find that on the basis of Ranney's testimony and
Sinner's concession October 17 was the first time Sinner talked to Ranney, which
would be 2 days after the Respondent 's letter requesting his discharge was sent.
I credit Sinner 's testimony that Ranney told him on October 17 , 1963 , that Sinner
would have to pay $330 or he probably would be discharged and that Ranney said
he could not accept Sinner's offer to pay initiation fees plus the dues back to the
referendum.
Arthur Dietrich began working for State in the spring of 1957 as a driver. Some-
time after he became employed by State he joined the Respondent and paid his initia-
tion fee and a couple of months ' dues. However , from 1959 until June 1963 , Dietrich
paid no money to the Union. His arrears were known to the Union before the WERB
referendum but Respondent did nothing to seek Dietrich 's discharge until after the
referendum.
The dues of $264 by which Dietrich was in arrears included the $ 1 additional per
month by which dues are increased when 3 or more months are in arrears.
During the first part of June 1963, Dietrich was told by Union Steward Michael
O'brenovich that the vote on the union shop question was possibly coming up and that
all men should pay up their dues because if it was voted in as a union shop "the fel-
low's that weren't paid up and had made no arrangements with the Union would
probably be dropped out of their jobs or bumped down." Dietrich testified that he
asked O'brenovich if he could just pay an initiation fee.
Dietrich made an agreement with O'brenovich to pay whatever he could each pay-
day on the back dues. O'brenovich told him that "it was agreed upon from the
Union." Prior to the referendum Dietrich gave $25 to O'brenovich for the Union in
two payments, one payment for $10 and one payment for $15 which O'brenovich took
to the Union, procured a receipt, and gave the receipt to Dietrich.
During the first part of September 1963, Dietrich was told by O'brenovich that the
union shop had been approved and that "all the fellows that were paying the back
dues had to be caught up or they would either be laid off or bumped out of the Union."
After the second conversation with O 'brenovich , Dietrich gave the steward a total
of $20 which O'brenovich took to the Union on October 8, 1963, and learned
that the Union would not accept it. He was told that Dietrich would have to go to
the Union himself. O'brenovich returned the $20 to Dietrich on October 11 and told
him to go to the Union and see Ranney on the following Tuesday at the meeting. It
did not occur to Dietrich , according to his testimony , to go immediately to the Union
because the steward had told him to see Ranney on October 15.
Dietrich did not receive a copy of the Respondent's letter of October 4, 1963,
addressed to those members who were in arrears but other employees showed him a
copy of it sometime between October 4 and 11, according to Dietrich's testimony.
Dietrich continued to testify that on the evening of October 15, 1964, he went to
the Respondent 's office as the steward had told him to do, where he found a meeting
was in progress . Dietrich asked for Ranney but was told he was not in but would be
in the next day. Dietrich said he would return the following day.
Under date of October 15, 1963, Respondent sent State a letter requesting that
they discharge Arthur Dietrich because he was not a member of the Union.
On the morning of October 16, 1963 , Dietrich went to Respondent 's office and had
a conversation with Ranney . Ranney asked him what he could do about paying his
back dues . Dietrich informed him that he was under amortization and gave him
the name of his attorney , Thomas McGinn.
CHAUFFEURS , TEAMSTERS & HELPERS, ETC . 283
Ranney called McGinn on the telephone and made an agreement for Dietrich to
pay off his union dues at the rate of $25 per month . Ranney's agreement with
McGinn , for Dietrich , was confirmed in writing at McGinn 's request . The letter
(General Counsel 's Exhibit No. 9) states:
This is to confirm our conversation of this morning wherein I explained to
you that Arthur A. Dietrich an employee of State Sand and Gravel is in arrears
in its dues in the amount of $264. In order for Mr . Dietrich to continue his
employment with State Sand and Gravel Company, it will be necessary that
he pay this arrears in, monthly installments at not less than $25 per month.
In addition to the monthly installments Mr. Dietrich will have to pay his
current dues which because of the arrears amounts to $7 per month.
McGinn also requested and received from Respondent a vertification of the sum
owed . That verification is in evidence as General Counsel's Exhibit No 6 indicating
that Dietrich owed a total of $264 in dues from November 1959 , and stating in the
last paragraph:
The above amounts are including a $1 per month fine for all delinquent
months except the current month of October. This member will be charged
these assessments until he has paid up to date in the current month.
Attorney McGinn made one $25 payment to the Union on Dietrich 's behalf
around the end of October 1963 . Around the middle of October 1963 , State received
a copy of Respondent 's letter requesting discharge of Dietrich . Respondent did
nothing to countermand this request, notwithstanding the arrangement made with
Dietrich for the payment of back dues . Dietrich worked all day on October 18, 1963.
However, he did not receive his starting time for the following Monday as was usual
practice . On Monday , October 21 , Dietrich waited at home for a call to go to work.
Failing to receive the call , he telephoned the head dispatcher and asked what was
wrong and was told that he had been laid off because he had not been cleared by
the Union . Dietrich then called Walter Retzlaff, State 's superintendent , and Retzlaff
repeated what the dispatcher had told him . Retzlaff testified the only reason for
discharging Dietrich was the letter requesting his discharge from the Respondent.
Dietrich then went to see Retzlaff and was told that if he wanted to come back
he would have to do so as a new man because the Union had demanded his layoff.
Dietrich returned to work at State as a new employee , having lost all of his seniority
on October 24, 1963 . He worked until November 12, 1963, and was then laid off
for the rest of the season . It is uncontradicted in the record that had Dietrich not
lost his seniority he would not have been laid off at that time.
Conclusions
Sinner did not make any offer to pay his dues until October 17, 1963 , assuming,
arguendo , that he did on that date . His testimony that he offered to pay the initia-
tion fee of $50 plus $6 dues from 30 days after the referendum is squarely contra-
dicted by Ranney . In any event such tender would be too late as made after the
Union 's request for his discharge had been made by the Union and received by the
Employer, if the Union 's request for discharge were lawful and solely for the reason
of dues delinquency . In General Motors Corporation , Packard Electric Division,
134 NLRB 1107, the Board held at 1109 that an employee was delinquent in the
payment of dues at the time the union requested his discharge solely because of such
delinquency ; and if the company had discharged him immediately upon receipt of
the union 's request the legality of both the request and the discharge could not have
been questioned . In that case the Board held that the union requested the discharge
at a time when and solely because the employee was delinquent in the payment of
his dues; and that thereafter the employee offered to pay the union the amount of
its delinquency which offer the union refused to accept and the company thereafter
discharged him. The Board, overruling the Aluminum Workers International Union,
Local No. 135 , AFL (The Metal Ware Corporation ) case 5 held that since the reason
for the requested discharge was solely for dues delinquency and the offer to cure the
delinquency was made only after such request for discharge , there were no violations
of Section 8(a) (1) and (3) and 8 ( b)(1)(A) and (2) of the Act.
In the case at bar the question now presented is whether the complaint should be
dismissed on the authority of the General Motors case , supra, or whether this case
is to be distinguished because of the fact that the "dues" delinquency also included
6112 NLRB 619, 621.
284 DECISIONS OF -NATIONAL LABOR -RELATIONS BOARD
monthly fines of $1 for each month after 3 months' delinquency and for the period
June 1-August 6, 1962, which ,was not covered by a union-security agreement. The
Union denied in its answer that it requested the discharges for unp9id dues prior to
the referendum and the Respondent's brief contends that its Secretary-Treasurer
Ranney has denied under oath that either of the Charging Parties was discharged for
failure to pay anything owing prior to the August referendum.
Frank H. Ranney, when called under Rule 43(b) by the General Counsel, testified
in part as follows: '
Q. To your knowledge did anyone from Local 200 or yourself ask Mr. Sinner
be discharged for failure to pay dues at anytime prior to August 6, 1963?
A. No.
Q. To your knowledge did Local 200 seek the discharge of Mr. Dietrich for
his arrearages in dues prior to August 6, 1963?
A. No.
But Ranney continued to testify that Dietrich as of October 1963, was in arrears
in the amount of approximately $264 and Sinner was in arrears for approximately
$330.
If the Union requested the discharges of Sinner and Dietrich solely for dues delin-
quency between the date of the referendum and October 15, it would be a lawful
request and no question of fines would be involved because only $6 in dues for
1 month would be involved plus an initiation fee of $50.
Since the amount of dues after referendum would be $6 and an initiation fee
would be $50 it is obvious that the discharges of Sinner and Dietrich included monthly
dues and fines for months before the referendum which fines were added to the
monthly dues after dues were in arrears 3 months and also included the period dur-
ing which there was no collective-bargaining contract. I find no merit to the
Respondent's defense that it requested the discharges of Sinner and Dietrich only
for their delinquency in dues following the referendum. This conclusion is fortified
by the fact, which is uncontradicted, that on October 16 the Respondent and Dietrich
entered into an arrangement whereby Dietrich was to pay his entire arrears of $264
at the rate of $25 per month until paid plus current dues monthly. Notwithstanding
such arrangement, although made after the date of the request for discharge was
received (October 16, 1963), the Union did nothing in prevent the discharge of
Dietrich who, following his discharge, was rehired as a' new employee with loss of
his accrued seniority.
The conclusion that the Union was claiming dues prior to August 6, 1963, is fur=
ther fortified by the fact that in its letter of October 15 requesting discharge, the
Respondent stated to the Employers that Sinner and Dietrich had been "suspended
from our union for nonpayment of dues." According to the bylaws of Local 200,
article XIX (letter J) "any member who becomes three (3) months in arrears for
dues, fines, etc., shall automatically stand suspended from this local union." Since
3 months had not elapsed between 31 days after August 6 and October 15, it is obvi-
ous that the nonpayment of dues 6 did and had to include some part of the period
prior to August 6, including June 1 'through 'August 6, 1962, when there was no
collective-bargaining agreement. While the Union may have a right to collect back
dues and fines, etc., as a debt owing to the organization, it may not condition employ-
ment rights on payment of this debt.
In Pen and Pencil Workers Union, Local 19593, AFL (Parker Pen Company),
91 NLRB 883, the respondent requested the employer to discharge one Becker on
the ground that she had failed to pay the outstanding fine and she was discharged.
The Board held that by causing the employer to discharge Becker discriminatorily
because she had been denied membership on some ground other than failure to
tender periodic dues and the initiation fees uniformly required by the respondent
as a condition of acquiring or retaining membership there, the respondent violated
Section 8 (b) (2) of the Act.
In National Lead Company, Titanium Division, 106 NLRB 545, the discharges
were brought about only after the demand for dues was separated from the demand
for fines and after the employees were given a fresh and ample opportunity to clear
themselves with the Union by tendering their dues alone. The Board held there was
no violation of the Act. In the instant case, however, the demand was for discharge
6 The Respondent claimed Sinner owed $330 and Dietrich owed $264.
CHAUFFEURS, TEAMSTERS & HELPERS, ETC . ' 285
for nonpayment of dues but the employees were met with a , demand for dues and
fines and were not offered an opportunity to clear themselves with the Union by
tendering their dues alone.
On the basis of the entire record I find that by requesting and obtaining the dis-
charges of Sinner and Dietrich the real reason for the Union requesting the dis-
charges included nonpayment of fines and also nonpayment of dues for a period
during which there was no contract between the Union and the Employers . Accord-
ingly, I find the Respondent thereby violated Section 8(b)(2) of the Act.
IV. THE UNFAIR LABOR PRACTICES
The unfair labor practices found to have occurred as set forth above , occurring
in connection with the operations of Hillview and State, described 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 com-
merce and the free flow thereof.
V. THE REMEDY
In view of my finding set forth above, that the Respondent has engaged in unfair
labor practices defined in Section 8 (b)(2) of the Act, I shall recommend that it be
required to cease and desist therefrom and take such affirmative action as appears
necessary and appropriate to effectuate the policies of the Act . I shall recommend
that the Respondent notify Hillview and State in writing and furnish copies thereof
to Fred H. Sinner and Arthur A. Dietrich, respectively, that it withdraws its objec-
tions to their employment and requests Hillview and State, respectively , to offer
them reinstatement . I also recommend that the Respondent make Sinner and Diet-
rich whole for the loss of earnings suffered as a result of the discrimination against
them by payment to each of a sum of money equal to what Sinner and Dietrich
would have earned working for Hillview and State , respectively, after October 18,
1963, less net earnings during said period , net earnings to be computed on a quar-
terly basis as in F. W. Woolworth Company, 90 NLRB 289, with interest computed
as in Isis Plumbing & Heating Co., 138 NLRB 716. I shall recommend that
Respondent post at its regular meeting place copies of the attached notice marked
"Appendix."
On the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the meaning of the Act.
2. Hillview and State , are employers engaged in commerce within the meaning of
the Act.
3. By causing Hillview to terminate the employment of Fred H . Sinner on Octo-
ber 18, 1963 , for reasons other than his failure to tender periodic dues and initiation
fees, Respondent violated Section 8(b) (2) of the Act.
4. By causing State to terminate the employment of Arthur A. Dietrich on Octo-
ber 18, 1963, and to rehire him as a new employee on October 21, 1963, thereby
reducing his seniority for reasons other than his failure to tender periodic dues and
initiation fees, Respondent violated Section 8 (b) (2) of the Act.
5. 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
On the basis of the findings of fact and conclusions of law set forth above, it is
recommended that the Respondent be ordered to:
1. Cease and desist from causing or attempting to cause Hillview and State, respec-
tively, to discriminate against any of their employees in violation of Section 8(a)(3)
of the Act,
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Make whole Sinner and Dietrich for loss of earnings in the manner set forth
in the section above, entitled "The Remedy."
(b) In the event that any of the above-named employees are presently serving in
the Armed Forces of the United States, notify him of his right to full reinstatement
upon application in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948, as amended , after discharge from the
Armed Forces.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify Hillview and Fred H. Sinner, in writing, that it withdraws its objec-
tion to Sinner's employment and requests Hillview to offer him reinstatement to his
former or a substantially equivalent position without prejudice to his seniority or
other rights and privileges.
(d) Notify State and Arthur A. Dietrich in writing that it withdraws its objection
to his employment and requests State to offer him reinstatement to his former or
a substantially equivalent position without prejudice to his seniority or other rights
and privileges.
(e) Post at its business office and at all places where notices to members are
posted, copies of the attached notice marked "Appendix." 7 Copies of said notice
to be furnished by the Regional Director for Region 30, shall, after being duly
signed by an authorized official of Respondent, remain posted at the places indi-
cated, for a period of not less than 60 consecutive days. Reasonable steps shall be
taken by Respondent to assure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 30, in writing, within 20 days from
receipt of this Decision, what steps Respondent has taken to comply with it .8
7If 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 this
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".
8If this Recommended Order be adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 30, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
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 give notice that:
WE WILL NOT cause or attempt to cause Hillview Sand and Gravel, Inc., and/
or State Sand and Gravel Company to discriminate against Fred H. Sinner and
Arthur A. Dietrich, respectively, or any other employee in violation of Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL notify Hillview Sand and Gravel, Inc., and Fred H. Sinner, in writ-
ing, that we withdraw our objections to his reinstatement to his former or an
equivalent position without prejudice to his seniority or other rights and
privileges.
WE WILL notify State Sand and Gravel Company and Arthur A. Dietrich, in
writing, that we withdraw our objections to his employment and request his
reinstatement to his former or an equivalent position without prejudice to his
seniority or other rights and privileges.
WE WILL make Fred H. Sinner and Arthur A. Dietrich whole for any loss of
pay suffered because of the discrimination against them.
CHAUFFEURS, TEAMSTERS AND HELPERS "GENERAL" LOCAL No. 200,
AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, AND WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Oiganization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
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, Second
Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, Tele-
phone No. 272-8600, Extension 3860, if they have any questions concerning this
notice or compliance with its provisions.