King Electrical Mfg. Co.

National Labor Relations Board - Board Decisions

May 12, 1977

229 N.L.R.B. 615 (N.L.R.B. 1977)

KING ELECTRICAL MFG. CO.
King Electrical Manufacturing Company and Local
No. 741, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Independent. Case 19-CA-8949
May 12, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on October 14, 1976, by Local
No. 741, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Independent, herein called the Union, and duly
served on King Electrical Manufacturing Company,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 19, issued a complaint
on November 30, 1976, an amendment to complaint
on December 8, 1976, and a second amendment to
complaint on December 15, 1976, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, amendment to complaint, second amend-
ment to complaint, and notice of hearing before an
Administrative Law Judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
amended complaint alleges in substance that at all
times material herein the Union has been the
representative for the purposes of collective bargain-
ing of employees in the appropriate unit; 1 on August
31, 1976, Respondent and the Union entered into a
valid collective-bargaining agreement covering the
unit described above; the aforesaid contract contains
a valid union-security clause requiring all new
employees as a condition of their employment to
become members of the Union 31 days from the date
of their employment; since October 7, 1976, Respon-
dent has refused to comply with the provisions of the
union-security clause by refusing the Union's request
to discharge nine unit employees; and, by the
aforesaid conduct Respondent has violated Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
Respondent filed an answer to the complaint on
December 8, 1976, and a second answer to the
amended complaint on January 20, 1977. Respon-
dent's answers admit the Union's status as collective-
The appropriate unit comprises:
All production. maintenance, shipping. and receiving employees
employed by the Respondent at its Seattle facility, excluding office
229 NLRB No. 91
bargaining representative and the existence of a
collective-bargaining agreement, but assert that
Respondent lawfully refused to comply with the
Union's demand for discharge of nine employees
who failed to comply with the membership require-
ments of the union-security clause subsequent to the
filing with the Board, on September 7, 1976, of a
deauthorization petition in Case 19-UD-151.
On January 28, 1977, the General Counsel filed a
motion for transfer and summary judgment with a
brief in support of his motion. On February 10, 1977,
the Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why the
General Counsel's motion should not be granted. On
February 18, 1977, Respondent filed a cross-motion
for summary judgment and a brief opposing the
General Counsel's motion and in support of its
motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Since its certification by the Board on May 14,
1976,2 the Union has been the exclusive collective-
bargaining representative for the previously de-
scribed appropriate unit. The initial contract negotia-
tions between the Union and Respondent culminat-
ed in the signing of a collective-bargaining agree-
ment, to be in effect from August 31, 1976, until
March 1, 1979. This contract contains a valid union-
security clause requiring new employees to join the
Union within 31 days of their employment and old
employees to join the Union within 31 days of the
effective contract date. The clause further obligates
the Respondent, within 72 hours of its receipt of a
written notice and request from the Union, to
terminate any employee who fails to acquire or
maintain membership as required.
On September 7, only a week after the collective-
bargaining agreement had gone into effect, an
employee filed a petition in Case 19-UD-151 seeking
rescission of union-shop authority pursuant to
Section 9(e)(1) of the Act. The filing of the petition
was supported by a substantial percentage of unit
employees. The election in Case 19-UD-151 was
originally scheduled to be held on October 21, but
the filing of the charge in the instant proceeding has
indefinitely delayed its occurrence. On October 7,
clerical employees, salesmen, guards, professional employees. and
supervisors as defined in the Act.
2 All dates are hereafter in 1976 unless otherwise noted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the pendency of the deauthorization election,
the Union gave Respondent written notice that 9 of
the approximately 22 unit employees had failed
within the 31-day grace period to tender the dues and
initiation fees necessary to acquire or maintain union
membership. Since that date, Respondent has stead-
fastly refused to honor the Union's request to
terminate the employment of those nine delinquent
employees.
The issue presented herein is whether the Respon-
dent violated Section 8(a)(5) and (1) of the Act by its
continuing refusal to meet the Union's demand for
the termination of nine employees because of their
failure to comply with the requirements of the union-
security provision in the current collective-bargain-
ing agreement. The General Counsel contends that
under Board law a union-security clause in an
operative contract remains in force and must be
honored unless and until it is expressly rescinded by
unit employees in an affirmative deauthorization
vote. On the other hand, Respondent requests a
Board ruling that "(I) where employees file a
deauthorization petition prior to the expiration of the
initial period in which they have to join the Union, in
a new agreement, and (2) the election is delayed
beyond the contractual period for joining the Union,
and not due to any fault by the employees, the Union
security clause should be deemed in effect suspended
until the election."
It is well established that an employer's refusal to
implement a union-security agreement has the effect
of modifying the existing collective-bargaining agree-
ment as well as terminating a clause therein in
derogation of the employer's bargaining obligation
under Section 8(d) of the Act. Such conduct seriously
impairs the effectiveness of the Union in its role as
collective-bargaining representative. 3 Although we
have held in Lyons Apparel, Inc., 218 NLRB 1172
(1975), that an affirmative deauthorization vote
constitutes a prima facie withdrawal of the Union's
right to a union-security clause, we have never
intimated that the rationale underlying this ruling
could be extended to justify the preelection suspen-
sion of union-security requirements merely because a
deauthorization petition has been filed within the
first 31 days of the instituion of those requirements.
On the contrary, Lyons Apparel implies the prima
facie validity of a union-security clause in an
enforceable collective-bargaining agreement until an
affirmative deauthorization vote has actually been
cast.
Respondent admits that a majority of unit employ-
ees approved the union-shop collective-bargaining
agreement which it subsequently signed, but it
contends, in spite of Board precedent, that the
circumstances in this case warrant giving those
employees a second chance to consider independent-
ly the contract's union-security clause before it
becomes effective. In support of its position, the
Respondent alleges certain additional facts which the
General Counsel argues are not relevant to the issue
presented. In specific terms, the Respondent states
that it agreed in August to sign whichever of two
collective-bargaining agreements was accepted by
unit employees. The two contracts were identical in
content with the exception that one contained a
union-security clause and the other did not. Accord-
ing to the Respondent, the Union submitted only the
union-shop agreement for employee approval or
disapproval, although the employees were cognizant
and desirous of voting on the other contract as well.
As an alleged consequence of the Union's refusal to
submit the open-shop contract to a vote, a majority
of unit employees sought referendum on the union-
security issue by supporting the filing of the
deauthorization petition within a week of the
beginning of the new contract term. Respondent
claims that the petitioned-for election would have
been held prior to the 31st. day of the new contract
term if certain alleged but unspecified administrative
inaction and union obstruction had not delayed
proceedings in Case 19-UD-151.
Under the alleged circumstances set forth above,
Respondent suggests the inequity of enforcing the
union-security agreement during the pendency of the
deauthorization election. It contends that it is unfair
to force unit employees to purchase their franchise in
the election by tendering initiation fees and dues,
since the election sought by a majority of them has
been delayed beyond the 31-day grace period
through no fault of their own. Respondent further
contends that enforcement of the union-security
clause would give the Union control over the election
results by concomitant requests to terminate delin-
quent employees, manipulation of initiation fee and
dues requirements, and coercion of dues-paying
employees through restrictions in union rules and
regulations.
We find no merit in the Respondent's position,
even assuming the veracity of its additional factual
allegations. The Respondent cannot successfully
gloss over the determinative facts in this proceeding.
It therefore admits that the current union-shop
collective-bargaining agreement is valid, having been
approved by an apparently uncoerced majority of
unit employees and signed by the Union and
Respondent. If we were to rule as requested by the
Respondent, we would in effect be sanctioning an
I California Blowpipe & Steel Company, Inc., 218 NLBR 736, 748 (1975).
616
KING ELECTRICAL MFG. CO.
unwieldy and time-consuming bifurcated ratification
process for all collective-bargaining agreements
containing union-security clauses. A mere 30-percent
minority of unit employees could automatically
suspend the implementation of a critical term in a
previously approved contract by filing a deauthoriza-
tion petition within the first 31 days of the life of the
contract. The Board cannot place its imprimatur on a
procedure which would be so potentially disruptive
of the establishment of a stable collective-bargaining
relationship.
The equitable concerns voiced by the Respondent
in this case do not justify specially excepting it from
established Board law. Having once voluntarily cast
their votes in approval of an entire collective-bar-
gaining agreement, unit employees have no inherent
right to a second chance to consider an individual
term in that agreement before it is applied to them;
nor do employee petitioners for a deauthorization
election have any absolute right to expect that the
election will be held before they must comply with
the requirements of a union-security provision.
Furthermore, no presumption about the result in the
election in Case 19-UD-151 can be drawn a priori
from the fact that a significant number of unit
employees supported the deauthorization petition.
Finally, Respondent's speculative fears of union
control over the results of the election may be dealt
with when realized, if ever, by timely filed objections
and charges of violations of the Act.
For all of the aforesaid reasons, the Union was
legally entitled to expect that the union-security
clause in its valid collective-bargaining agreement
with Respondent would be enforced during the
pendency of the election in Case 19-UD-151. Since
we have found Respondent's contentions to be
without merit, we shall accordingly grant the General
Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Washington State corporation
with its principal office and place of business in
Seattle, Washington, where it is engaged in the
manufacturing and wholesale of electrical heating
equipment. During the past 12 months, a representa-
tive period, Respondent sold and shipped finished
products valued in excess of $50,000 from its Seattle
facility to points outside the State of Washington.
During the same representative period, Respondent
purchased goods and materials valued in excess of
$50,000 which were shipped directly to its Seattle
facility from points outside the State of Washington.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
We find that Local No. 741, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Commencing on or about October 7, 1976, and
continuing thereafter, the Respondent has refused to
honor the union-security provisions of a collective-
bargaining agreement entered into with the Union as
the exclusive representative of Respondent's employ-
ees in the appropriate unit herein. Accordingly, we
find that the Respondent has, since October 7, 1976,
and at all times thereafter, engaged in conduct which
constitutes an unfair labor practice within the
meaning of Sections 8(a)(5) and (1) and 8(d) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
i. King Electrical Manufacturing Company is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local No. 741, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America, Independent, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production, maintenance, shipping, and
receiving employees employed by the Respondent at
its Seattle facility, excluding office clerical employ-
ees, salesmen, guards, professional employees, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein the above-named
labor organization has been the exclusive representa-
tive of all the employees in the aforesaid appropriate
unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing, on or about October 7, 1976, and
at all times thereafter, to honor the union-security
provisions of a collective-bargaining agreement
entered into with the above-named labor organiza-
tion as the exclusive bargaining representative of all
the employees of Respondent in the appropriate unit,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By the aforesaid refusal to honor the union-
security provisions of the collective-bargaining agree-
ment, Respondent has interfered with, restrained,
and coerced, and is interfering with, restraining, and
coercing, employees in the exercise of the rights
guaranteed to them in Section 7 of the Act, and
thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(l)
of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
King Electrical Manufacturing Company, Seattle,
Washington, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to honor the union-security provisions
of a collective-bargaining agreement entered into
with Local No. 741, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Independent, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All production, maintenance, shipping, and re-
ceiving employees employed by the Respondent
at its Seattle facility, excluding office clerical
employees, salesmen, guards, professional em-
ployees, and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Post at its Seattle, Washington, facility copies of
the attached notice marked "Appendix."
4 Copies of
said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
4 In the event that 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 National 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to honor the provisions of
the union-security clause in the collective-bar-
gaining agreement which we have entered into
with Local No. 741, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Independent, which acts as the
exclusive representative of the employees in the
bargaining unit described below. The appropriate
bargaining unit is:
All production, maintenance, shipping, and
receiving employees employed by King
Electrical Manufacturing Company in its
Seattle, Washington, facility, excluding of-
fice clerical employees, salesmen, guards,
professional employees, and supervisors as
defined in the Act.
618
KING ELECTRICAL MFG. CO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
KING ELECTRICAL
MANUFACTURING
COMPANY
619