Local 409, IATSE

National Labor Relations Board - Board DecisionsJan 22, 1963

140 N.L.R.B. 759 (N.L.R.B. 1963)

LOCAL 409,IATSE 759 agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act, as amended. WE WILL offer immediate and full reinstatement to the following employee, and we will make him whole for any loss he may have suffered as a result of the discrimination against him: James B. Redd All our employees are free to become, remain, or refrain from becoming or re- maining, members of any labor organization, except as that right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act, as amended. We will not discriminate in regard to hire or tenure of employment, or any term or condition of employment, against any employee because of membership in or activity on be- half of any labor organization. J. A. JONES CONSTRUCTION COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 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, 327 Logan Building, 500 Union Street, Seattle 1, Washington, Telephone No. Mutual 2-3300, Extension 553, if they have any question concerning this notice or compliance with its provisions. Local 409, International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada , AFL-CIO [RCA Service Company ] and Harvey M. Dubner. Case No. 20-CB-896. January 22, 1963 DECISION AND ORDER On July 19, 1962, Trial Examiner E. Don Wilson issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a brief in support thereof. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and, except as noted below,' hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above Decision and Order. A In view of our agreement with the Trial Examiner that the percentage levy consti- tuted "periodic dues" within the meaning of the Act , we find it unnecessary to adopt or consider the Trial Examiner's alternative holdings based on an assumption that the levy constituted an "assessment." 140 NLRB No. 74. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Pursuant to due notice of hearing, a hearing in this case was held before Trial Examiner E. Don Wilson at San Francisco, California, on March 20 and 21, 1962. Upon a charge filed by Harvey M. Dubner, herein called Dubner, on November 14, 1961, a complaint was issued by the General Counsel of the National Labor Rela- tions Board, herein called the Board, on February 2, 1962. An amended complaint was issued by the General Counsel of the Board on March 8, 1962, and was further amended at the hearing. In substance, the complaint, as amended, alleges that in violation of Section 8(b)(1)(A) of the Act, Local 409, International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, herein called Respondent, suspended Dubner from membership in Respondent for failure to pay an assessment to Respondent and that on or about October 30, 1961, Respondent notified Dubner that it had informed RCA Service Company, a division of Radio Corporation of America, herein called respectively RCA and Radio Corporation of America, that Dubner had been sus- pended from membership in Respondent because of his failure to pay an assessment, and also on or about October 30, 1961, Respondent attempted to cause RCA to discharge Dubner, pursuant to a union-security agreement between International Alliance of Theatrical Stage Employees and Motion Picture Operators of the United States and Canada, AFL-CIO, herein called International, by notifying RCA of Dubner's suspension from membership in Respondent because of Dubner's indebted- ness to Respondent. It was further alleged that Respondent's attempt to cause RCA to discharge Dubner on or about October 30, 1961, was a violation of Section 8(b) (2) of the Act. As amended at the hearing, the complaint further alleged, in substance, that Respondent violated Section 8(b) (1) (A) of the Act by amending its constitu- tion on or about November 30, 1961, so as to provide that the business manager of Respondent should replace a member on his job should he fail to pay ^a percentage levy upon his earnings. Respondent, in substance, denied the commission of unfair labor practices as ,alleged. General Counsel and Respondent appeared by counsel. Dubner appeared in person. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to present oral argument, and to file briefs Briefs have been received from General Counsel and Respondent. They have been considered. Upon the entire record and observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RCA RCA is a division of Radio Corporation of America and has been at all times material a Delaware corporation. At all times material, RCA has engaged in the business of servicing theater and other electrical equipment in San Francisco, Cali- fornia, and in various other cities throughout the United States. During 1961, RCA, in the course and conduct of its business, purchased and received directly from points outside the State of California, goods valued in excess of $50,000. During the same period of time, in the course and conduct of its business, RCA provided services valued in excess of $50,000 to firms located outside the State of California. RCA is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Board has jurisdiction of the subject matter of this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED Local 409, International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, and Inter- national Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO, are, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues Among the issues involved herein are: (1) Before and after November 30, 1961, was Respondent's levy of 1'h percent on the gross earnings of its members, who were working at the trade, dues or an assessment? (2) Was Respondent's suspension of LOCAL 409,IATSE 761 Dubner from membership in Respondent on October 26, 1961, for failure to pay the 1'h percent levy, restraint and coercion in violation of Section 8(b)(1)(A) of the Act? ( 3) Was the mailing to RCA of a carbon copy of Respondent 's October 30, 1961 , letter to Dubner advising him of his suspension , an attempt to cause RCA to discharge Dubner for failure to pay an assessment9 ( 4) Was the "cc :" notation on the October 30, 1961 , suspension letter to Dubner, indicating that a carbon copy of the letter had been sent to RCA, illegal restraint and coercion of Dubner ? ( 5) Did Respondent by an amendment to its constitution on or about November 30, 1961, illegally restrain and coerce its members? B. The facts 1. Dubner, Respondent, and RCA Dubner began his employment as an electronic and sound serviceman with RCA's technical products branch in August 1960. At all times material , his super- visor was Sauter who was assisted by a working supervisor , Larkin.' Before Dubner was hired , Larkin made arrangements with Respondent for Dubner to join Re- spondent . In November 1960, Dubner was admitted to membership by Respondent. Respondent had about 50 members. International and RCA have had, at all times material , a labor agreement con- taining a legal union-security clause. Prior to November 30, 1961, Respondent 's constitution and general laws provided: ARTICLE XXIII FINES, DUES AND LOANS SEC. 1 . The dues of this Union shall be $6.75 per quarter , payable quarterly in advance. SEC. 2. A percentage on all gross monies received from place of employment shall be paid in addition to the regular dues of all members, or such other sums as may be determined by this Union from time to time. SEC. 3 . All members shall make a true monthly report of his gross earnings on the form provided for that purpose by this Union , and shall file same with the Treasurer when due. Any member making 'a false report of his earnings shall, upon conviction , be fined Twenty-five ($25.00 ) Dollars for each offense. All members of Respondent , at gall times material, have been required to pay the $6.75 per quarter . Only members of Respondent who are employed at work which falls within the "work jurisdiction" of Respondent , e.g., projectionists, operators, or sound technicians , are required to pay to Respondent a percentage of gross moneys received from their employment , in addition to the $6.75. Thus, a member employed solely'as'a checker in a supermarket would not be required to pay Respondent a per- centage of his earnings in addition to the $6 75 , as a condition of maintaining membership . A majority vote of Respondent's membership determines whether a member is employed within the work jurisdiction of Respondent and is subject to ,the percentage levy as a condition of membership. International and Respondent , including its members , officers , and attorney, have regularly referred to the percentage levy as an "assessment" or "working assessment." For a period of time, Dubner paid the $6.75 required by section 1 of article XXIII and in April and July 1961 tendered checks in the amount of $6.75. Having notified Respondent in April 1961 that he would not pay Respondent a percentage levy on his wages, Dubner, on or about July 7, 1961, had his tendered checks returned to him by Respondent and was advised , in writing , that the checks were not i About 2 months before the hearing Sauter was temporarily assigned to Seattle and Larkin's supervisory authority consequently may have Increased thereafter General Counsel contends Larkin , at all times material , was a supervisor within the meaning of the Act Larkin ' s recommendations for hiring were not effective . His superiors made independent investigations of applicants for employment recommended by Larkin. Dis- patching or assignment of employees to jobs by Larkin was not shown to be other than routine. Any recommendation by Larkin that an employee he discharged would not be effective without the "recommendation " of his superiors . I find the record does not sup- port General Counsel's contention that Larkin, at material times, was a supervisor within the meaning of the Act. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acceptable "until such time as [his] assessments [were] paid in full." [Emphasis supplied ] 2 On or about October 26, 1961, Respondent suspended Dubner from membership and on October 30, 1961, so advised Dubner by letter. The letter stated that he would be reinstated if his indebtedness to Respondent were paid in full within 15 days from the date of the letter which noted that carbon copies were sent to the Regional Director for the Twentieth Region of the Board and to RCA and the law department of Radio Corporation of America. Previously, on July 14, 1961, Dubner had filed a charge with the Board (Case No. 20-CB-863) alleging that Respondent had restrained and coerced him in violation of Section 8(b)(1)(A) by threatening him with termination because of failure to pay "assessments," "not uniformly required as a condition of acquiring or retaining membership." The charge also alleged that this conduct of Respondent violated Section 8(b) (2) of the Act. On September 11, 1961, the Regional Director for the Twentieth Region of the Board advised Respondent that Dubner's charge (20-CB-863) had been withdrawn without prejudice. The Regional Director sent carbon copies of his letter to Dubner, John Turturici, business agent of Respondent, J. J. Quill, attorney for Respondent and RCA and the law department of Radio Corporation of America. Respondent's Secretary Lusch testified credibly and without contradiction that he sent the carbon copies of the October 30 suspension notice, as noted, as a matter of personal courtesy and without direction from anyone in the Union, following the Regional Director's September 11 letter. He did not mail carbon copies to other persons named under the "cc" notations in the Regional Director's letter. They were connected with Respondent and apparently learned of the contents of the letter after it was sent. Supervisor Sauter spoke to Dubner about the letter 2 or 3 days after its receipt. He said it was "a bad situation" and he would forward the letter to the district manager of RCA. Dubner made no inquiry as to what was "bad" about the situation and Sauter did not indicate whether any action would be taken by RCA. Dubner feared that if he were suspended by Respondent he would be laid off or fired. Respondent did not "assure" Dubner that it would not request his discharge by RCA. Later, about a week after the October 30 letter, Sauter asked Dubner what he intended to do and Dubner stated he intended to pay the "assessment," under protest, to become rein- stated in Respondent. Dubner told Sauter he had "taken the matter up" with the Board. Sauter stated that any time there was trouble between the Company and the Union it was a bad situation and it would be better if it did not occur. Prior to the October 30 letter, Larkin had various conversations with representa- tives of Respondent about Dubner's refusal to pay the percentage levy. Larkin was asked by John Turturici, informally, to persuade Dubner to make such payments so as to preserve his membership. Larkin stated he couldn't persuade Dubner because he (Larkin) had been refusing to make such payments to his own (another) Local for 11 years. Larkin said he was using his influence to have Dubner drop his claim against the Union.3 Larkin told one representative of Respondent, in an informal conversation, that if Dubner were suspended he would probably lose his job with RCA.4 Thereafter, Larkin talked to RCA's west coast regional manager who said that an employee without a union card could not work in the department. Larkin reported this to Dubner but not to Respondent. As a "friend" of Dubner, Larkin recommended that Dubner go to the Board "to find out whether or not we could legally be charged assessments." [Emphasis supplied.] There is no evidence that RCA, in any manner, at any time, illegally discriminated against Dubner. On November 10, 1961, Dubner paid his back "dues" and "assessments" under protest. On November 30, 1961, Respondent advised Dubner he had been reinstated. 2. The percentage levy The parties have stipulated, correctly, that "the major issue in this case is whether or not the Respondent's levy of [a percentage] of its members gross earnings is dues or an assessment." 2 For some months, Dubner had been exchanging correspondence with International concerning his obligation to pay a "working assessment." 3 Findings as to the conversation or conversations of Larkin and Turturici are based upon credited testimony of each. 'Larkin never so recommended to RCA. LOCAL 409, IAThE 763 In 1957 and part of 1958, the levy was 13/4 percent. Respondent, learning that such percentage was more than needed, voted to reduce it to 1 percent in 1958. In August 1958, Respondent's members, finding that they were operating "in the red," increased the levy to 11/2 percent, and the levy continued at such rate during all times material. The fixed sum of $6.75 is payable quarterly by the members. The 1'/z percent levy is payable monthly. As previously noted, all members must pay the fixed sum of $6.75 as a condi- tion of membership but only those members who are "working at the trade" are required to pay the percentage levy. As of the date of the hearing, about six members who were not working "at the trade," were not required to pay the levy, although they paid the $6.79. The funds collected under the levy are not used for special purposes. Collections of the $6.75 and the percentage levy are deposited in the general commercial account of Respondent and are used to pay the general and current operating expenses of Respondent. There is no evidence that Respondent has imposed any "special" assessments at any time material. General Counsel correctly states in his brief that the percentage levy has been imposed on those working members who have been receiving benefits from the Re- spondent "by it acting as their collective bargaining agent." Those members of Respondent who are excused from the levy (nonworkers at the trade) are not required to be members of Respondent as a condition of employment. On November 30, 1961, Respondent amended article XXIII, of its constitution, section 1 , so as to read: The dues of this union shall be $6.75 per quarter, payable quarterly in advance, plus a percentage of all gross monies received from place of employment. This percentage to be recommended by the trustees and approved by the membership. Trustees may recommend changes in the percentage to be paid, from time to time, as may be required. After November 30, 1961, Respondent maintained the same requirements as to payment of the percentage levy as had theretofore existed. Nonworkers at the trade continued to be excused from the percentage levy, although they paid the $6.75. Conclusions Resolution of the question whether the percentage levy is "dues" or "an assess- ment," in this case, resolves all issues presented.5 5If the percentage levy were "an assessment" and not "dues ," General Counsel would be correct in contending that suspension of Dubner by Respondent for failure to pay "an assessment," In the face of a contract between RCA and International containing a legal union-security clause, would be restraint and coercion violative of Section 8(b) (1) (A) of the Act. Dubner reasonably construed the threat of suspension or expulsion as a threat to his job tenure . The Board has held that a threat to union membership in a union shop situation may reasonably be anticipated to carry overtones of a threat to job tenure. No assurance was given to Dubner that his suspension from union membership would not result in his discharge . If his suspension , in the circumstances of this case , were because of a failure to pay an assessment, Respondent would have violated Section 8 (b)(1)(A). That Dubner was not discharged is immaterial United Stone and Allied Products Work- ers of Ameiiea , Local No. 24 , AFL-CIO (Gibsonburg Lime Products Company), 121 NLRB 914 Especially in view of Respondent 's credited explanation for mailing carbon copies of Dubner's October 30 suspension notice to RCA and the law department of Radio Corpora- tion of America and to the Regional Director of the Board , merely as a matter of courtesy, the mailing of such copies is not considered by me to be an attempt to cause RCA to dis- charge Dubner for any reason . General Counsel has the burden of proving , by substantial evidence , that Respondent attempted to cause RCA to discharge Dubner This burden has not been sustained In Excel Merchandise Co , Inc, 116 NLRB 1581, relied upon by General Counsel , the union wrote to the employer and having advised the employer of a member ' s expulsion , advised the employer to "proceed in accordance with the terms of the agreement between the Union and [the employer ]." In the instant case, Respondent at no time requested RCA to proceed in any fashion . Further , the Board found in Excel that the union "intended" to cause a discharge by its letter. The preponderance of the evidence in this case does not support a finding of any such intent by Respondent. For the reasons noted in the above paragraph , I find insufficient substantive evidence of illegal restraint and coercion of Dubner , arising out of the "cc" notations on Dubner's 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In contending that the percentage levy has been an assessment and not dues, General Counsel relies principally upon the precedent of Anaconda Copper Mining Company, 110 NLRB 1925. In the Anaconda case, the union membership rejected a motion to increase the union dues by 50 cents a month. Having refused to increase the dues, the membership voted instead to leave the dues as they were and "pay the $1.00 defense fund assessment in addition . . . making dues $10.00 per quarter." The Board, in the circumstances of that case, found that the membership intended the $1 to be an assessment on its members. In making such finding the Board noted "particularly the membership's action in voting down a proposed 50-cent increase in dues, and the wording of the motion that passed which expressly stated that dues were to remain unchanged." The Board noted further record evidence of the intent of the membership that the $1 was not dues and was an assessment. I understand the Anaconda case to stand for the proposition that although an assessment is periodic, uniformly levied, and used for the purpose of meeting the gen- eral financial obligations of a union, an assessment is not "periodic dues." It seems at least equally plain to me that "periodic dues," uniformly levied for the purpose of meeting the general and current financial obligations of a union, do not become assessments merely because the membership, officers, and attorney refer to them as "assessments" or "working assessments." I observe that in Anaconda the members lumped the $1 assessment with the dues of $3 per month and said this made "dues $10 per quarter." Saying so did not make an "assessment" "dues," nor conversely, should saying so make "periodic dues" an "assessment." 6 Periodicity, regularity, uniformity, and generality of use of financial obligations im- posed upon members by a union should, generally, be determinative of the question as to whether a money levy is "periodic dues." Anaconda has made clear that such generalization does not hold where there is clear evidence that the membership in- tended the imposition of such levy not to be dues and to be an assessment. In the instant case, the percentage levy is and has been regular and periodic.7 Further, the percentage levy is uniform 8 The percentage levy goes into the same account and is expended for the same general purposes as the $6.75. Considering that the Union pays $4 quarterly to the International for each member, it becomes obvious that the amount designated as dues is nominal. It is reasonable to conclude, as I do, that the percentage levy provides the principal income enabling the Union to function. In this case there is no evidence, as there was in Anaconda, that Respondent's mem- bership "expressly" did not and has not considered the percentage levy to be dues or copy of the October 30 suspension letter This would be so whether or not the percentage levy was an assessment. Dubner knew on September 11, 1961, that the Regional Director had sent carbon copies of his approval of Dubner's withdrawal of a charge involving Respondent, to Dubner and RCA and Radio Corporation of America General Counsel has not sustained his burden of proving with a preponderance of the evidence that Respondent illegally restrained and coerced Dubner by mailing carbon copies of the October 30 sus- pension letter to the Regional Director and Dubner's employer, as a matter of courtesy, occasioned by the September 11 action of the Regional Director. If the percentage levy were an assessment, General Counsel would be correct in con- tending that on and after November 30, 1961, Respondent restrained and coerced its members by providing in section 5 of its constitution that members who failed to pay the percentage levy were to be replaced on their jobs by the business manager 8 At the hearing, General Counsel observed, "I realize that no matter what they call it that it doesn't help us solve the problem we have got to decide " 7 The credited evidence shows that the percentage levy is collected monthly and the fixed sum of $6.75 is collected quarterly Each is regular and periodic. That different periods have been used for collection has not been shown by a preponderance of the evi- dence to be for a reason other than collecting dues at times and In a manner which best meet the convenience and ability to pay of the membership There is no evidence that the membership has not preferred to pay its dues in the periodic fashion prescribed Conceivably and probably members would and do prefer to pay the fixed and relatively small sum of $6.75 dues each quarter and to pay the variable and relatively larger per- centage sum of dues based upon earnings as of the time of the earnings General Counsel has not shown that the membership of Respondent has not desired that its dues be collected with the regularity and periodicity and in the manner which has been the fact. 8 That members not working at the trade are not required to pay the percentage levy does not detract from the uniformity of the imposition. All members working at the trade are required to pay the percentage levy as part of the dues structure All members not working at the trade are not required to pay the percentage levy. I find this to be a uniform policy. SAKRETE OF NORTHERN CALIFORNIA, INC. 765 that it intended the percentage levy to be used for a specific purpose, such as a "defense fund assessment." I find that the percentage levy, at all times material , has been "periodic dues" •within the meaning of the Act. It having been found that the percentage levy is "periodic dues" within the mean- ing of the Act and not "an assessment" I find that General Counsel has not proved that Respondent has violated either Section 8 (b) (1) (A ) or Section 8 (b) (2) of the Act. Accordingly , I shall recommend dismissal of the complaint. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding , I make the following: CONCLUSIONS OF LAW 1. Respondent and International are, and have been at all times material to this proceeding, labor organizations within the meaning of Section 2(5) of the Act. 2. RCA is, and has been at material times, an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of the Act. 3. The record does not establish that Respondent has engaged in the unfair labor practices imputed to it in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact a nd conclusions of law, and the entire record in this proceeding , it is recommended that the Board enter an order dismissing the complaint. Sakrete of Northern California , Inc. and Freight, Construction, General Drivers and Helpers, Local 287, International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Case No. 20-CA-2069. January 22, 1963 SUPPLEMENTAL DECISION AND ORDER 1 On September 24, 1962, Trial Examiner Maurice M. Miller issued. his Supplemental Intermediate Report in the above-entitled proceed- ing, 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 Supplemental Intermediate Report. Thereafter, the Re- spondent and the Charging Party filed exceptions to the Supplemental Intermediate Report and supporting briefs.2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing in connection with the unfair labor practices involved 'The Trial Examiner 's original Intermediate Report, which Issued on April 6, 1962, recommended dismissal of the complaint for jurisdictional reasons. For reasons set forth In its original Decision and Order , 137 NLRB 1220 , the Board asserted jurisdiction and remanded the case to the Trial Examiner for the preparation and issuance of a Supple- mental Intermediate Report with respect to the unfair labor practices alleged in the complaint. 2 The Respondent's request for oral argument is hereby denied as , in our opinion, the record, exceptions , and briefs adequately present the positions of the parties. 140 NLRB No. 70.