Granite City Steel Co.

National Labor Relations Board - Board DecisionsFeb 21, 1968

169 N.L.R.B. 1009 (N.L.R.B. 1968)

GRANITE CITY STEEL COMPANY 1009 Granite City Steel Company and John Dial forth in the Trial Examiner's Recommended Order, as herein modified. International Chemical Workers Union, Local 50, Substitute for the word "committed," in the first AFL-CIO and John Dial . Cases 14-CA-4322 indented paragraph of the notice attached to the and 14-CB-1527 Trial Examiner's Decision, the word "permitted." February 21, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On October 11, 1967, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that Respondent Union had en- gaged in and was engaging in certain unfair labor practices in violation of the National Labor Rela- tions Act, as amended, and recommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Ex- aminer's Decision. He further found that Respond- ent Company had not engaged in certain unfair labor practices alleged in the complaint and recom- mended that the allegations pertaining thereto be dismissed. Thereafter, the General Counsel and the Respondent Union filed exceptions to the Trial Ex- aminer's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner, with the modification noted below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that Respondent, Interna- tional Chemical Workers Union, Local 50, AFL-CIO, Granite City, Illinois, its officers, agents, and representatives, shall take the action set TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE WILLIAM W. KAPELL, Trial Examiner: This matter, a proceeding under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, was heard at St. Louis, Missouri, on August 14, 1967,' with all parties participating pursuant to due notice upon a consolidated complaint issued by the General Counsel on June 23,2 alleging violations of Section 8(a)(1) and (3) and 8(b)(2) of the Act. The consolidated complaint, in substance, alleges that pursuant to the Union's request in violation of Section 8(b)(2) of the Act, the Company in violation of Section 8(a)(1) and (3) of the Act discriminatorily discharged John Dial because of his failure to become a member of the Union and pay the dues and initiation fees as required by the provision of the Union's collective-bargaining agreement with the Company. In their answers each Respondent admitted certain allegations of the complaint but denied the commission of any unfair labor practices. All parties were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. The General Counsel and each Respond- ent filed briefs which have been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT - I. COMMERCE At all times material herein, the Company, a Delaware corporation, maintained its principal office and place of business in Granite City, Illinois, and also maintained a blast furnace department located in Granite City, Illinois, where it has been engaged in the manufacture, sale, and distribution of steel. During the year ending May 31 the Company, in the course and conduct of its business operations, manufactured, sold, and distributed at its Granite City place of business, products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said place of business directly to points located outside the State of Illinois. The Com- pany admits, and I find, that at all times material herein it has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED The Union admits, and I find, that at all times material herein it has been a labor organization within the meaning of Section 2(5) of the Act. I As we agree with the Trial Examiner that the Union violated Section 8(b)(2) and (1)(A) of the Act by causing Dial's discharge for failure to tender dues and initiation fees without having fulfilled its fiduciary duty to inform him of such obligations and to afford him a reasonable opportunity to satisfy them, we find it unnecessary to pass upon the Trial Examiner's further finding that Dial made a valid tender prior to the expiration of the statutory 30-day period I All dates hereafter refer to the year 1967 unless otherwise noted 2 Based upon a charge filed by John Dial on May 9 in Case 14-CA-4322 against Granite City Steel Company hereafter referred to as the Company , and upon a charge also filed by him on the same day in Case 14-CB-1527 against International Chemical Workers Union, Local 50, AFL-CIO , hereafter referred to as the Union 169 NLRB No. 144 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Sequence of Events John Dial began working in the steel mill of the Com- pany on April 10, 1966. The mill's production and main- tenance employees are represented by the United Steel Workers of America, and Dial became a member of that Union pursuant to the union-security clause in the collec- tive-bargaining agreement covering those employees. On March 25, Dial was informed that he was being transferred to the Company's blast furnace department whose production and maintenance employees are represented by the Union herein.3 On March 27, Dial re- ported at the blast furnace, punching in at 11:43 p.m. to begin work on the midnight shift. A few days later Clifton Patterson, the Union's financial secretary whose duties included collecting initiation fees and dues from new members, was informed by the Company that Dial and others had checked in as new employees at the blast fur- nace on March 27 to begin work on March 28. Dial con- tinued to work until April 24, when a fellow employee showed him a union notice,4 copies of which had been at- tached by the Union to the timecards of some new em- ployees. During that day Dial, who had previously not found such a notice attached to his timecard, asked Wil- liam H. Smith, a fellow employee at the blast furnace, to check his timecard during the next few days to ascertain whether such a union notice was attached to his timecard because he was expecting one, and he had arranged to take his regular days off on April 25 and 26 and, with the permission of the Company,. was also taking off on April 27 to attend to personal business. In the event Smith found a notice, he was instructed to contact Dial at home so that he could return to the plant to make the necessary arrangements to join the Union. Smith checked Dial's timecard as requested, but found no union notice at- tached. Sometime during the morning of April 27 Patterson had placed a note on Dial's timecard addressed to Robert Hans, an assistant to the Company's superintendent of labor relations, requesting that Dial be discharged as of that time for his failure to join the Union within the 30- day grace period.5 Upon receipt of this note and after reviewing the relevant facts, Hans discharged Dial effec- tive midnight on April 27. When Dial arrived at the plant about 11:30 p.m. on April 27, to begin his next scheduled work shift at mid- night, he discovered that his timecard was missing. He thereupon went to the guard shack and asked the guard what happened to it. He was advised that he had been ter- minated because of his failure to pay his initiation fees to the Union. About this time Charles Poole, an admitted company supervisor, entered the guard shack and asked Dial whether he was having any difficulty. After Dial in- formed him that he had been terminated because of his failure to join the Union, Poole telephoned Clifton Patter- son at his home, about 12 miles from the plant, and requested that Dial be permitted to work the midnight 3 The collective -bargaining agreement covering the blast furnace em- ployees provides in pertinent part: "It shall be a condition of continued employment that all Employees of the Employer covered by this Agree- ment shall become and remain members in good standing in the union upon completion of 30 days' employment or on the 30th day after the ef- fective date of this Agreement or on the 30th day after the signing of this Agreement, whichever is later. All Employees who are members of the Union and all Employees who become members of the Union must shift. He also informed Patterson that Dial was regarded as a good worker and that he had the money to pay the in- itiation fee at that time. Patterson replied that Dial had al- ready exceeded the 30-day time limit for joining the Union and he was unable to make any exception for him, and that, therefore, he could not let him work the mid- night shift. A day or two after his discharge, Dial sought out Pat- terson at the plant and in a conversation with him denied that he had been given any notification about joining the Union. Patterson replied that he personally had tagged his timecard, but also stated that he believed Dial's asser- tion that he had not found any notice attached to his timecard, and that it was possible for the notice to have fallen off. Dial was reemployed as a new employee at the blast furnace commencing with the midnight shift on May 2. He continued to work until May 6 when he was laid off for economic reasons. Had Dial's seniority dated retroac- tively to March 28 he would have avoided being laid off by reason of such seniority. On May 11 Dial joined the Union by giving Patterson a check for his initiation fee and filling out an application card at the guard shack. He was also reemployed on that day, and has since continued in the Company's employ. By mutual agreement between the Union and the Company, his seniority was made retroactive to the beginning of his employment at the blast furnace on March 28. As a result of his termination on the night of April 27 and his layoff on May 6, Dial lost 5 days of work which he would otherwise have had. On May 29 the Union posted a notice on the Company's bul- letin board setting forth the union-security provision of its contract and stating in part as follows: Therefore, New Employees must sign an ICWU Local 50 Application for Membership Card before the close of business (4:00 p.m.) of the 31st day fol- lowing the beginning of your employment. B. The Union's Practices Relative to New Members According to Patterson it was the Union's practice to require new employees only to sign a union application card to fulfill the union membership requirement, that no money need change hands at that time, and that there were always plenty of union application cards available at the guard shack. He also stated that, "if a man is mak- ing an application to join the Union even short of mid- night on the last permissible day ... he could just sign the card sitting right there at the guard house." The record also shows that William Smith was trans- ferred from the steel mill to the blast furnace on March 23, that a union notice had never been attached to his timecard, that when he reported for work on April 23, about 11:30 p.m. he found that his timecard had been pulled, that he thereupon asked the guard at the shack about his card and was told to fill out an application card to join the Union, and that he then punched in on his timecard and went to work. remain members of the Union." 4 The notice contained the following: "You must fill out application and union dues checkoff cards for payroll deduction. This applies to new members and to union members that are returning to this union from else- where. (See guards for cards.) Do this now or your card will be pulled." 5 This was the customary procedure followed by the Union in having employees terminated for failure to join the Union. GRANITE CITY STEEL COMPANY 1011 C. Findings and Conclusions 1. Contentions of the parties The General Counsel contends that, a tender of dues by a new employee to join a union pursuant to a union- security provision , is timely and within the statutory grace period provided for in Section 8(a)(3) of the Act, if made within 31 days from the day he starts working on the job, that prior to the expiration of such grace period and during the 31st day of his employment Dial tendered his dues and initiation fees, which the Union refused to accept; and that the Union in violation of Section 8(b)(2) of the Act caused the Company in violation of Section 8(a)(3) to discharge him. General Counsel also contends that both the Union and the Company failed, although legally required to, to give Dial proper and direct notice of his obligation to join the Union pursuant to their collec- tive-bargaining agreement , and that the usual union prac- tices regarding the admission of new union members was not followed in Dial 's case. The Union contends that, although it notified Dial of his obligation to join the Union, he failed to do so within the grace period allowed for that purpose , and that it therefore lawfully caused his discharge for failure to properly tender his dues and initiation fees required of all employees in conformance with the legal requirements of a tender. The Company takes the position that it lawfully discharged Dial on April 28, because his tender on the night of April 27 was insufficient to bind either it or the Union, that more than 30 days had elapsed from the com- mencement of his employment during which he failed to comply with his obligation to join the Union, and that, furthermore, the record fails to establish that the Com- pany had any reason to believe that the Union's request for Dial's discharge was based on any ground other than his failure to tender his dues and join the Union. 2. The Union' s duty to notify Dial The Board has held that "when a union requires a new employee to perfect membership under a lawful union- security agreement , it has a duty to notify the employee, at some point , as to what his `membership ' obligations are," and that "to permit a union to lawfully request the discharge of an employee for failure to meet his dues-pay- ing obligations , where the provisions relating to such obligations are not disclosed to the employee, would be grossly inequitable and contrary to the spirit of the Act." Philadelphia Sheraton Corporation , 136 NLRB 888, 896, enfd. 320 F.2d 254 (C.A. 3). Accord : Building Con- struction , Highway Pavers, etc ., 167 NLRB 39; Local 98D, International Union of Operating Engineers, 156 NLRB 545. Dial testified to the effect that he found no union notice attached to his timecard at any time prior to his discharge . Although Patterson stated that he had per- sonally attached such a notice , he, nevertheless, ex- pressed the belief that Dial told the truth when he as- serted that he found none attached to his timecard, and also made the observation that it could have fallen off.6 Moreover , it appears that Dial was watching and waiting for the receipt of a union notice, and took the precaution of having Smith watch his timecard during his absence from the plant to enable him to fulfill any obligations aris- ing in connection with its receipt . Based on these circum- stances and the demeanor of Dial, whose testimony im- pressed me as being forthright and truthful , I find that at no time did Dial find a union notice attached to his timecard advising him of his obligation to join the Union. Applying the principles laid down in the above-cited cases, I find and conclude that the Union failed to fulfill its fiduciary duty to notify Dial of his obligation to join the Union and, that therefore it unlawfully caused his discharge in violation of Section 8(b)(2) and (1)(A) of the Act.7 Furthermore, even assuming that the Union had at- tached the notice to Dial 's timecard , calling attention to his obligation to join the Union and assuming further that he found it, the notice would, nevertheless have been deficient in that it failed to specify the amount of his tender and to whom it had to be made." Nor does the fact that Dial may have been aware of an obligation to join the Union relieve the Union of its fiduciary duty to notify him of this obligation.9 3. The grace period and its duration I also find no merit to the contention of Respondents that Dial's grace period ended prior to his tender of dues. That period under Section 8(a)(3) of the Act has been construed by the Board to mean 30 calendar days not counting the first day of employment or 31 days including the first day. State Packing Company, 137 NLRB 1420, 1422. A calendar day is the 24-hour period from midnight to midnight . 10 Dial began compensatory work on mid- night of March 27. Accordingly, his first day of work was March 28. The Company 's attendance record (Respond- ent Company ' s Exhibit 1), also indicates that his first day on the job was March 28.11 Thus, Dial had 31 calen- dar days from and including March 28 to tender his dues and initiation fee to the Union. About 11:45 p.m. on April 27, Poole called Patterson and made the tender on behalf of Dial. At this time he could not have worked more than 31 midnight shifts from the beginning of his employment . For the foregoing reasons I find that his grace period had not expired when the tender was made on his behalf. Respondents , however, also contend that the offer was ineffective because Poole, a company su- pervisor, was not an agent of the Union and, therefore, could not have acted on behalf of Dial, nor did Dial request him to make the offer; and furthermore the offer was inadequate because it did not comply with the legal requirements of a tender. I find that these objections are unavailing. Clearly, Dial approved and ratified Poole's call to pay his dues with the blank check he had in his pocket. No valid reason was advanced, nor am I aware of any, why Poole's supervisory status disqualified him from acting on Dial's behalf with respect to an offer of his dues. The tender was made to and refused by a union officer empowered to accept it. His refusal to accept it was based 6 In this regard it is significant to note that William Smith also testified that he never found a notice attached to his timecard. 7 I find no merit in the General Counsel 's contention that the Company was also under a duty to notify Dial of his obligation to join the Union. See Building Construction, Highway Pavers, supra 8 See Philadelphia Sheraton Corp , supra s See Building Construction , Highway Pavers, supra 30 See Words and Phrases and cases cited therein. 11 It is also significant to note that his seniority by agreement between the Union and the Company was finally made retroactive to March 28, his first day on the job. 350-212 0-70-65 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specifically on the ground that it was overdue . Inasmuch as the tender was made timely and declined on the specific ground that it was belatedly made , I find that the Union waived all other objections to its receipt . " It is the general rule that an objection to a tender on one ground is a waiver of all other objections which could have been made at the time." N . L.R.B. v . Aluminum Workers Inter- national Union , Local No. 135, 230 F . 2d 515 , 519 (C.A. 7), quoting from 52 Am . Jur. Tender § 10. Thus, Respond- ents are precluded from asserting at this time that the tender was legally inadequate or deficient because made on the telephone or by Poole on behalf of Dial, or for some other reasons than because belatedly made. Respondents ' reliance on Producers Transport Inc. v. N.L.R.B., 284 F .2d 438 (C.A. 7), is misplaced . In that case the court held that the union was under no obligation to accept a tender of overdue dues which consisted of a partial payment and an offer to pay the balance at some future time because such a tender did not comport with the legal requirements of a tender . In the instant case, the tender by Dial was neither belatedly offered nor made subject to payment of an amount less than the sum due. Furthermore , it appears that the Union deviated from its usual practice in receiving new members pursuant to its union-security clause . Patterson's testimony shows that new employees had only to sign a union application to fulfill the union membership requirement , and that no money need change hands at that time, and that even short of midnight on the last permissible day to join, an employee could just sign a union application card at the guard shack and thereby satisfy the membership require- ments of the union-security clause. In fact , this practice was followed with respect to the manner in which Smith joined the Union . He was permitted to sign a union appli- cation on the 31st day after he began working at the blast furnace , and was not required to pay his dues and initia- tion fee at that time. Yet, for some undisclosed reason best known to Patterson , Dial was not asked nor offered an opportunity to sign an application card which was available at the guard shack . No explanation was offered by the Union as to why the procedure followed generally and in Smith 's case was not also applied to Dial. There is cause under these circumstances to infer that Dial was discriminatorily treated. 4. The Company's liability I find however that it was not shown that the Company had any reason to believe that the Union's request for Di- al's discharge was based upon any ground other than his failure to tender timely his dues and initiation fee. In fact, Poole exerted efforts on behalf of both Dial and the Com- pany to have him continue on the job. Accordingly, I shall recommend the dismissal of the complaint insofar as it al- leges that the Company violated Section 8(a)(3) and (1) of the Act. Producers Transport Inc. v. N.L.R.B., supra at 443; G & H Products Corporation, 139 NLRB 736. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activity of Respondents set forth in section III, above, occurring in connection with the operations of 12 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order is enforced by a decree of a United States Respondent Company 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. On the basis of the foregoing findings, and upon the en- tire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing the Company to discriminate against Dial, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 5. The Company has not engaged in the unfair labor practices alleged in the complaint. THE REMEDY Having found that the Union engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative actions in order to effectuate the policies of the Act. It having been found that the Union is responsible for the discrimination suffered by Dial, it will be recom- meneded that it make him whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of his reinstatement less interim earnings, and in a manner consistent with the Board policies set out in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondent Union, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Granite City Steel Company to discriminate against employees, except to the extent permitted by the proviso under Section 8(a)(3) of the Act, as amended by the Labor-Management Re- porting and Disclosure Act of 1959. (b) In any like or related manner restraining or coerc- ing employees in Granite City Steel Company in the exer- cise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Make John Dial whole in the manner set forth in the section of the Decision entitled "The Remedy." (b) Post at its offices, copies of the attached notice marked "Appendix."12 Copies of said notice, on forms Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order. GRANITE CITY STEEL COMPANY provided by the Regional Director for Region 14, after being duly signed by a representative of Respondent Union, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily displayed. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. These notices shall be posted by Granite City Steel Company, if willing, at places where notices to its employees are customarily posted. (c) Notify the Regional Director of Region 14, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps Respondent Union has taken to comply herewith. 13 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges that Respondents violated the Act otherwise than as found herein. 13 in the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent Union has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL CHEMI- CAL WORKERS UNION, LOCAL 50, AFL-CIO AND EM- PLOYEES OF GRANITE CITY STEEL COMPANY Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in 1013 order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our mem- bers and employees of Granite City Steel Company that: WE WILL NOT cause or attempt to cause Granite City Steel Company at Granite City, Illinois, to discharge or otherwise discriminate against its em- ployees with respect to their union membership, ex- cept to the extent committed by the proviso to Sec- tion 8 (a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner restrain or coerce employees of Granite City Steel Company in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL make whole John Dial for loss of pay suffered as a result of the discrimination against him. Dated By INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL 50, AFL-CIO (Labor Organization) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees or union members have any question con- cerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Of- fice, 1040 Boatmen 's Bank Building, 314 North Broad- way, St. Louis, Missouri 63102, Telephone 622-4167.