Iron Workers Local 455 (Precision Fabricators)

National Labor Relations Board - Board Decisions

Oct 19, 1988

291 N.L.R.B. 385 (N.L.R.B. 1988)

IRON WORKERS LOCAL 455 (PRECISION FABRICATORS) 385
Shopmen 's Local Union No 455 , International Asso
ciation of Bridge, Structural and Ornamental
Iron Workers , AFL-CIO (Precision Fabrica
tors , Inc) and Samuel G Porter and Daniel
Pounds Cases 29-CB-6372-1 and 29-CB-
6372-2
October 19 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 27 1987 Administrative Law
Judge Edwin H Bennett issued the attached deci
lion The Respondent filed exceptions and a sup
porting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided, to affirm the judge s rulings findings I and
conclusions and to adopt the recommended Order
unlawfully attempted to cause Precision Fabricators Inc
(Employer) to discharge Porter and Pounds The critical
issue is whether the Union lawfully could condition em
ployment on retroactive application of a union security
clause to members who had been on strike for a succes
sor agreement
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
Respondents brief and argument of the parties I make
the following
FINDINGS OF FACT
I JURISDICTION
It is admitted that the Employer a New York corpo
ration located in Garden City Nassau County New
York is engaged in the manufacture sale and distribu
tion of sheet metal and related products with in excess of
$50 000 annual purchases of sheet metal and other prod
ucts delivered to it in interstate commerce directly from
outside the State of New York It further is admitted
and I find that the Employer is an employer engaged in
commerce within the meaning of Section 2(2) (6) and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent Shopmen s
Local Union No 455 International Association of
Bridge Structural and Ornamental Iron Workers
AFL-CIO Garden City New York its officers
agents and representatives shall take the action set
forth in the Order
In adopting the judges finding that the Respondent unlawfully de
manded union dues from the Employer during a contract hiatus when
there was no union security agreement in effect we do not rely on the
portion of his discussion of Sea Land of California 197 NLRB 125 (1972)
which refers to the applicability of a 30-day grace period because the
record and the issues in this proceeding do not involve the application of
such period
Elizabeth Orfan Esq for the General Counsel
Vicki Erenstein Esq (Sipser Weinstock Harper & Dorn)
for the Respondent
DECISION
STATEMENT OF THE CASE
EDWIN H BENNETT Administrative Law Judge On
30 June 1986 unfair labor practice charges were filed by
Samuel G Porter and Daniel Pounds against Shopmen s
Local Union No 455 International Association of
Bridge Structural and Ornamental Iron Workers AFL-
CIO (Respondent or the Union) which led to the issu
ance of an order consolidating cases consolidated com
plaint and notice of hearing (complaint) on 14 August
1986 The hearing was conducted on 1 June 1987 In
Brooklyn New York on the allegation that the Union
II THE ALLEGED UNFAIR LABOR PRACTICES
The Union has been certified as the exclusive collec
tive bargaining representative of the Employers produc
Lion and maintenance employees and truckdrivers about
50 in number since about the mid 1970s The parties ne
gotiated several contracts which according to William
Colavito the union president always had been preceded
by a strike The 1982 contract which expired on 28 Feb
ruary 1985 contained inter alia a valid union security
clause and a dues checkoff provision
On expiration of the contract the Union struck for a
new agreement The unit employees including Porter
and Pounds had authorized that strike by secret ballot
election Colavito informed the employees that during
the period of the strike they would be liable for contin
ued payment of dues although at a reduced rate of $15 a
month The strike was 100 percent effective and lasted
until 19 August 1985 when a memorandum of agreement
was executed for a new contract to last until 30 June
1988 A formal contract embodying this understanding
was entered into on 18 April 1986
The memorandum of 19 August extended the expired
agreement with modifications in certain areas (e g
wages medical coverage etc) By implication among
the expired provisions incorporated into the new agree
ment were union security and dues checkoff There is
no evidence that any agreement was reached before 19
August on union security or for that matter any other
provision and certainly there is no evidence that em
ployees were advised before 19 August of any such
agreement The formal agreement executed 18 April
1986 recites in its opening paragraph that it is effective
as of the first day of March 1985 and contains at sec
tion 4(A) and (B) the following union security provi
sions
291 NLRB No 66
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(A) Each of the Company s employees included
in the bargaining unit described and set forth in
Section I hereof shall as a condition of employ
ment be or become a member of the Union not
later than the thirty first day following the effective
date of this Agreement or not later than the thirty
first day following the beginning of his or her em
ployment whichever is the later and each such em
ployee shall as a condition of continued employ
ment remain a member of the Union in good stand
ing to the extent authorized by Section 8(a)(3) of
the Labor Management Relations Act 1947
(B) Upon receipt of a written notice from the
Union that an employee had not acquired member
chip in the Union or has not maintained his or her
membership in good standing therein as provided
for in Subsection (A) above the Company shall
notify such employee that as a condition of employ
ment he or she must comply with the provisions of
Subsection (A) above and unless notified by the
Union that the employee has complied with the re
quirement the Company shall after five (5) work
ing days from the original notice from the Union
discharge such employee
The agreement also provides for deduction of union
dues from wages for those employees who have fur
nished written authorization The record is silent about
whether Porter and Pounds provided such authorization
although it is clear that since September 1985 dues de
ductions have been made and there is no suggestion that
such conduct has been done in an unlawful manner
Unit employees returned to work over a 2 week
period beginning 19 August 1985 and the Employer re
sumed dues deduction in September of that year pursuant
to the concededly valid union security and dues checkoff
provisions in the new agreement Pounds who returned
to work the first week and Porter who returned the
second week never terminated their union membership
Nevertheless both men refused to pay dues while on
strike and as a consequence they now are considered by
the Union to be delinquent for the 5 months of March
through July 1985 with each one owing $75 for that
period Because employees were not at work during the
strike it goes without saying that the Employer did not
deduct or transmit any dues on behalf of any employee
for this period of time Union records however are
maintained in such a manner that dues receipts are allo
cated to the oldest delinquency a circumstance that ac
counts for union records reflecting dues payments cred
ited to the accounts of Porter and Pounds for the strike
period It is undisputed though that the Union s demand
for dues payments described below covers the period
when the employees were on strike
On 21 May 1986 Frank Hernandez the Union s finan
cial secretary treasurer sent two letters to the Employer
(one regarding Porter and one regarding Pounds) as fol
lows
Unless we receive the amount of $75 00 by June 2
1985 he is to be removed from the job in accord
ance with Section 4A and B of the existing con
tract I trust that this will not be necessary
There is no evidence that the Union ever informed the
two employees of their alleged delinquency nor has the
Union particularized to the employees or the Employer
how the $75 was calculated However as noted the de
linquencies were caused by their failure to pay dues di
rectly to the Union for the 5 month strike period
The Employer by its attorney responded by letter
dated 28 May 1986 which stated in pertinent part that
the Employers records showed all proper dues have
been deducted from his pay and forwarded to the Union
for the entire period of time in question Concerning
Porter the letter stated that the Employer employed a
Sam Porter but not a Joseph Porter the name recited in
the Union s letter and that Porter s dues payments were
current for the period of his employment' The letter
closed with the statement that the Employer does not
intend to remove either employee from his job pursuant
to your request And the Employer did not do so
III DISCUSSION
A Position of the Parties
The General Counsels position is that union member
ship can be required as a condition of employment only
when authorized by a valid agreement and that no such
agreement existed for the 5 months the employees were
on strike Therefore the Unions demand on the Em
ployer to deduct dues for the two employees for the
period when there was no agreement and when they
were not even at work violated well established law
Respondent views the case in an entirely different pos
ture It argues that the contract including the union se
curity obligation negotiated after the strike had retroac
tive application and therefore had continuing effect
through the strike period It further claims that Board
law forbidding retroactive application of union security
clauses applies only to situations where there is an initial
agreement or the employees are newly hired or the em
ployees effected had not been union members Unlike
those situations this case the argument continues in
volves a successor agreement covering Porter and
Pounds both of whom had retained membership through
out the hiatus period (which coincides with the strike
period) Respondent further argues that its conduct was
lawful because Porter and Pounds had executed checkoff
authorization which remained valid that before the
strike they were notified of the dues requirement and as
sented to the obligation and they participated in the rati
fication of the new agreement Respondent asserts that
the foregoing circumstances distinguishes this case from
those relied on by the General Counsel Respondent does
not address the fact that the two employees did not
work for the period for which dues are sought Its argu
It has come to our attention that [Pounds/Porter]
who is in your employ has failed to pay his dues
(5) five months in arrears total $75 00 as required
' There does not appear to be any question of mistaken identification
and presumably the Union s letter of 21 May was intended to refer to the
Samuel Porter named in the complaint
IRON WORKERS LOCAL 455 (PRECISION FABRICATORS) 387
ment is that as union members they were obligated to
pay dues during the strike and that this obligation could
be enforced by way of the union security clause even as
here one applied retroactively
B Concluding Findings
Before turning to the arguments of the parties a
threshold question is whether the Union s letter of 21
Ma) 1986 requesting that Porter and Pounds be fired be
cause of their failure to pay dues pursuant to the union
security clause constitutes an attempt to cause within
the ambit of Section 8(b)(2) because the Union s demand
was unsuccessful and therefore did not cause a discharge
The Board has spoken to this issue and has held that
where as here statements which contain directions or
instructions enjoy no privilege under Section 8(c) but
rather fall within the attempt to cause language of
Section 8(b)(2) Bakery Workers Local 173 (Continental
Baking) 128 NLRB 937 939 (1960) I find that the
Union s letter stating that Porter and Pounds were to be
removed from the job unless the dues delinquency was
paid by 2 June 1985 constitutes a direction satisfying the
attempt to cause language of Section 8(b)(2)
I further find that the General Counsel correctly
argues that the principles governing the circumstances of
this case are well settled matters of law which compel a
finding of violation as alleged For a union to require the
payment of dues as a condition of employment there
must be in effect a valid union security agreement cover
ing the period for which dues are demanded and that
such agreement cannot be inferred by the mere fact that
an expired collective bargaining agreement contained a
union security provision i e such provision does not
survive an expired agreement but must be newly negoti
ated Chestnut Hill Bus Corp 270 NLRB 212 (1984)
Furthermore it is equally well settled that union secu
my provisions which condition employment on payment
of dues will not be given retroactive effect to cover a
period of time when there was no such agreement even
where the uncovered timeframe was occasioned by a
hiatus during which the parties were negotiating a suc
cessor agreement and regardless of the existence of a
strike Transportation Communications Local 1937 (NCR
Corp) 235 NLRB 666 (1978)
In the instant case the union security requirement ter
minated along with expiration of the collective bargain
ing agreement on 28 February 1985 A successor agree
ment was not reached until 19 August 1985 at which
time a new agreement was executed During that hiatus
no agreement existed and therefore no employee even
one who worked in that period let alone one who was
on strike could be required to maintain membership as a
condition of employment Respondents argument that
these time honored rules did not apply to Porter and
Pounds and that when the new agreement was reached it
could be retroactively applied to them because they
never resigned their membership and were not newly
hired employees simply is contrary to Board law
In Teamsters Local 70 (Sea Land of California) 197
NLRB 125 (1972) the parties negotiated a successor col
lective bargaining agreement which was signed on 26
October 1970 to replace an agreement that had expired
on 31 March 1970 The new agreement including a
union secunty provision was given retroactive effect to
1 April 1970 Employee Reliford a union member and
employee of the company since 1963 became delinquent
in dues dunng the hiatus for which reason he was sus
pended from membership on 30 September 1970 On 10
November 1970 a few weeks after the new agreement
had been executed he was unlawfully fired at the union s
request because of this delinquency that arose during the
hiatus The union was held to have violated the Act be
cause it was reasoned that [e]mployees are entitled
under Section 8(a)(3) of the Act to a 30 day grace
period from the date the agreement actually became of
fective which is the execution date of October 26 1970
and not the retroactive effective date of April 1 1970
Id at 128 The fact that Reliford continued at work
during the hiatus unlike Porter and Pounds who were
on strike only serves to highlight the illegality of Re
spondent s actions here At least in Reliford s case he
continued to earn wages under an extended interim
agreement from which dues could be deducted How
much more egregious under the statute for the Union
here to demand a deduction from later wages for past
dues accrued by employees while not at work as a condi
tion for returning to work after the strike Respondent
cites no authority contra in support of the several
claimed exceptions to the rules recited here barring ret
roactive application of union security provisions
In rejecting the various defenses I have assumed ar
guendo the assertions for which there is no record sup
port that Porter and Pound had assented to retroactive
application of the union security provision Such assent
would be legally irrelevant to the statutory issues in this
case as is the further claim which again has no record
support that the checkoff authorizations of Porter and
Pounds remained in effect dunng the strike period
Whether that is so has no bearing on their right to
remain free of union dues as a condition of employment
during the period when a collective bargaining agree
ment containing a valid union secunty clause is not in
effect
Nor is the Union s related argument that it acted law
fully because the payments of moneys to it by the Em
ployer were in accordance with the requirements of Sec
tion 302(4)(c) germane to the issues in this case Assum
ing the argument factually is correct only serves to save
the parties from a charge of criminal conduct However
compliance with Section 302 does not create an inde
pendent right in the Union to demand dues payments as
a condition of employment which are not otherwise in
accord with the rights of employees guaranteed by Sec
tion 8(a)(3) and (b)(1)(A) and (2) of the Act In any
event a checkoff authorization simply is a contract be
tween the employer and employee to provide for an as
signment of wages Machinists Local 2045 (Eagle Signal)
268 NLRB 635 637 (1984) Although the language of
the checkoff in the instant case is not in evidence the
Union does not suggest that the ones signed by Porter
and Pounds somehow granted any additional benefits to
the Union or waived the employees statutory rights
Moreover as previously noted even assuming the physi
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cal existence of a wage assignment contract during the
hiatus that contract was not capable of performance by
the parties that the employees were not receiving wages
because they were on strike It hardly follows as Re
spondent argues that these wage assignments can pro
vide a lawful basis for its conduct in issue here There
fore the Union has violated Section 8(b)(1)(A) and (2) as
alleged in the complaint
CONCLUSIONS OF LAW
1 Precision Fabricators Inc is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act
2 The Respondent Shopmen s Local Union No 455
International Association of Bridge Structural and Orna
mental Iron Workers AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act
3 The Respondent Union s attempt to cause the Em
ployer to discharge Samuel G Porter and Daniel Pounds
violated Section 8(b)(1)(A) and (2) of the Act because it
attempted to cause an employer to discriminate regard
ing the tenure of employment of its employees in viola
tion of Section 8(a)(3) of the Act thereby encouraging
membership in Respondent Union
4 The Respondent Union s aforesaid acts and conduct
are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer
tarn unfair labor practices I shall recommend that it be
ordered to cease and desist and to take certain affirma
tive action designed to effectuate the policies of the Act
Accordingly it is recommended that Respondent notify
the Employer in writing with a copy to Samuel G
Porter and Daniel Pounds that it does not seek their dis
charge or any deduction from their wages for any
claimed dues delinquency Respondent also shall remove
from its files and ask the Employer to remove from its
files any reference including its letter of 12 May 1986 to
its demand for the unlawful discharge of Porter and
Pounds and notify said employees in writing that it has
done so and that it will not use this unlawful request
against them in any way
The prayer for relief in the complaint requests that the
remedy include authorization for discovery proceedings
pursuant to the Federal Rules of Civil Procedure in
order to secure compliance with any order of the Board
The General Counsel does not contend that there are
any special circumstances here present necessitating de
parture from the traditional remedy in similar cases and I
will not include that requested remedy here Northwind
Maintenance Co 281 NLRB 317 (1986) 0 L Willis
Inc 278 NLRB 203 (1986)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed2
2 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
ORDER
The Respondent Shopmen s Local Union No 455
International Association of Bridge Structural and Orna
mental Iron Workers AFL-CIO Garden City New
York its officers agents and representatives shall
1 Cease and desist from
(a) Attempting to cause Precision Fabricators Inc to
discriminate against Samuel G Porter Daniel Pounds or
any other employee in violation of Section 8(a)(3) of the
Act
(b) In any like or related manner restraining or coerc
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act except to the extent that
such rights may be affected by a lawful agreement re
quirmg membership in a labor organization as a condi
tion of employment
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Notify Precision Fabricators Inc in writing with a
copy to Samuel G Porter and Daniel Pounds that it
does not seek their discharge or a deduction of dues
from their wages because of any claimed dues delinquen
cy
(b) Remove from its files and ask Precision Fabrica
tors Inc to remove from its files any reference includ
ing its letter of 21 May 1986 to its demand for the un
lawful discharge of Samuel G Porter and Daniel
Pounds and notify them in writing that it has done so
and it will not use this unlawful request against them in
any way
(c) Post at its office and meeting hall if any copies of
the attached notice marked Appendix 3 Copies of the
notice on forms provided by the Regional Director for
Region 29 after being signed by the Respondents au
thorized representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to members are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(d) Additional copies of the Appendix shall be signed
by Respondents authorized representative and forthwith
returned to the Regional Director for Region 29 These
notices shall be furnished to Precision Fabricators Inc
and posted in places where notices to employees custom
arily are posted if this Employer is willing to do so
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
Board and all objections to them shall be deemed waived for all pur
poses
3 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
IRON WORKERS LOCAL 455 (PRECISION FABRICATORS) 1 389
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT attempt to cause Precision Fabricators
Inc to discriminate against Samuel G Porter Daniel
Pounds or any other employee in violation of Section
8(a)(3) of the Act
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act except to the extent that such
rights may be affected by a lawful agreement requiring
membership in a labor organization as a condition of em
ployment
WE WILL notify Precision Fabricators Inc in writing
with a copy to Samuel G Porter and Daniel Pounds that
we do not seek their discharge or a deduction of dues
from their wages because of any claimed dues delinquen
cy
WE WILL remove from our files and ask Precision
Fabricators Inc to remove from its files any reference
including our letter of 21 i May 1986 to our demand for
the unlawful discharge of Samuel G Porter and Daniel
Pounds and notify them in writing that we have done so
and we will not use this unlawful request against them in
any way
SHOPMEN S LOCAL UNION No 455 INTER
NATIONAL ASSOCIATION OF BRIDGE
STRUCTURAL AND ORNAMENTAL IRON
WORKERS AFL-CIO