Metal Workers' Alliance, Inc.

National Labor Relations Board - Board Decisions

Jul 1, 1968

172 N.L.R.B. 815 (N.L.R.B. 1968)

METAL WORKERS ' ALLIANCE, INC. 815
Metal Workers' Alliance , Incorporated (TRW
Metals Division , TRW, Inc .) and Robert C. Flick.
Case 8-CB-1073
July 1, 1968
DECISION AND ORDER
On August 18, 1967, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in certain alleged unfair labor practices and
recommending that the complaint be dismissed in
its entirety. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief; the Respondent filed an answering
brief to the exceptions.
The National Labor Relations 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 Deci-
sion, the exceptions and briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer , except as modified below.
The complaint alleged that Respondent Union
violated Section 8(b)(1)(A) and (2) of the Na-
tional Labor Relations Act, as amended, by (1)
requiring employees who had left bargaining unit
jobs to accept supervisory positions or jobs outside
the bargaining unit to pay a reinstatement fee upon
their return to jobs in the bargaining unit, and (2)
threatening to have employees discharged if they
refused to sign checkoff authorization cards for the
payment of reinstatement fees to the Respondent
Union.
The Respondent has been the collective-bargain-
ing representative of the Employer's production
and maintenance employees since 1959. The cur-
rent collective-bargaining contract, which became
effective on May 20, 1966, and which is applicable
to the period material herein, contains an admit-
tedly valid union-security provision requiring as a
condition of employment that all employees in the
bargaining unit become and remain members of the
Respondent. The current contract, like the earlier
one which was in effect from 1963 to 1966, also
contains provisions for the return to the bargaining
unit of employees who have been transferred to su-
pervisory or other salaried positions with the Em-
ployer outside the unit. The 1963-66 contract pro-
vided for the retention and continued accumulation
of unit seniority for such employees. The current
contract provides only for the retention of previ-
ously acquired unit seniority.
The initiation fees, reinstatement fees, and dues
that are required for the acquisition and retention
of membership in the Respondent are fixed by the
Respondent's constitution and bylaws. Dues are
$2.50 per month. Initiation fees for employees first
entering the unit are $5. The constitution and
bylaws provide, however, that any member who
voluntarily leaves the bargaining unit to accept em-
ployment with the Employer outside the bargaining
unit,' and who thereafter reenters the bargaining
unit, must pay a reinstatement fee of either $50,
$100, or $150, depending on the time he spent out-
side the bargaining unit.2
The record shows that there have been a number
of employees who have at one time or another
transferred from bargaining unit jobs to supervisory
or other salaried positions outside the unit and who
later returned to bargaining unit jobs. Following
their return they were required to pay reinstate-
ment fees in accordance with the schedule set forth
in the Respondent's constitution and bylaws. With
respect to two of these employees, Monte and
Flick, both of whom had been transferred out of
the bargaining unit to become supervisors, the
record shows that after their return to the bargain-
ing unit they were told by the Respondent's agents
that the Respondent would request the Employer to
discharge them if they did not sign checkoff cards
authorizing, inter alia, the deduction of their rein-
statement fees.'
On the foregoing facts, the Trial Examiner found,
and we agree, that the requirement in the Respon-
dent's constitution and bylaws for the payment of
the aforesaid fees by employees reentering the bar-
gaining unit from salaried positions, and the en-
forcement of that fee requirement through the
union-security provisions of the collective-bargain-
ing agreement, were not, as alleged in the com-
plaint, violative of Section 8(b)(1)(A) and (2) of
the Act.
I
The reinstatement fees in question, as the com-
plaint concedes, were imposed by the Respondent
"as a condition precedent to becoming a member
of Respondent." The proviso to Section
' Under the Respondent 's constitution and bylaws an employee's mem-
bership in Respondent is terminated when he accepts a salaried position
1 Reinstatement fees are $50 for 1 year or less employment outside the
bargaining unit, $ 100 for I to 2 years , and $150 for 2 years or more
3 The Respondent 's constitution and bylaws permit the payment of rein-
statement fees by checkoff over a 3-month period.
172 NLRB No. 34
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b)(1)(A) of the Act safeguards to a union the
right "to prescribe its own rules with respect to the
acquisition or retention of membership," and under
the statute the fees it imposes are subject to the
scrutiny of the Board only in limited situations.
Thus, under Section 8(b)(5), a union is prohibited
from requiring of employees covered by a union-
security agreement "the payment, as a condition
precedent to becoming a member ... of a fee in an
amount which the Board finds excessive or dis-
criminatory under all the circumstances." And
under Section 8(a)(3) and 8(b)(2), where dis-
crimination or attempted discrimination against an
employee is sought to be justified under a valid
union-security agreement because of nonpayment
of "periodic dues" or "initiation fees," the Board
may inquire into whether the dues or fees involved
were indeed of such a character, and, if so, whether
they were "uniformly required as a condition of
acquiring or retaining membership." It has long
been settled that reinstatement fees charged by a
union as a condition to employees acquiring or
regaining union membership fall within the statuto-
ry intendment of "initiation fees." And the
uniformity requirement does not prohibit unions
from charging different fees to different classifica-
tions of employees entering or reentering the
Union, provided that there is a reasonable and not
unlawful basis for the classifications.4
In the instant case, the complaint does not allege
an 8(b)(5) violation, and the question of whether
the reinstatement fees were excessive in amount is
therefore not before us. Nor does the record in this
case justify a finding that the reinstatement fees at
issue impinged upon the exercise by employees of
statutorily protected rights. Contrary to the sug-
gestion in the dissent , no inference that the rein-
statement fees were discriminatory under the
statute may be drawn merely from the difference in
the amounts charged former members reentering
the bargaining unit from salaried positions with the
Employer and the amount charged former members
who left the Employer's employ altogether and then
returned. Unlike the situation in cases where
disparate fees have been found discriminatory 5 it
cannot be said in this case that the higher fee im-
posed on the particular class of employees here in-
volved was motivated by a purpose to penalize
them for not having obtained or retained member-
ship and paid dues during an earlier period when
they were not legally obligated to do so. The fact
that employees serving the Employer in supervisory
or salaried positions were disqualified under the
Respondent's own constitution and bylaws from
retaining their membership appears reason enough
to reject an inference of such a punitive purpose.
We are thus left with the question of whether the
different fees for admission to membership
charged, on the one hand, to employees returning
to the unit from salaried positions with the Em-
ployer, and, on the other hand to previously laid-off
or newly hired employees was based on a reasona-
ble classification. The Respondent justifies the divi-
sion on the grounds that employees in the former
classification upon reentry into the unit become en-
titled, not only to the retention of prior accumu-
lated seniority, but to the immediate enjoyment of
other valuable contract rights and benefits, such as
sharing in unit overtime, eligibility for paid holidays
and vacations, shift preferences, and insurance
coverage, whereas new hires must successfully ful-
fill certain probationary requirements before they
can become eligible for such benefits. The Trial Ex-
aminer found that these considerations provide a
reasonable and nondiscriminatory basis for distinc-
tion, and we agree. We therefore conclude, as did
the Trial Examiner, that the reinstatement fees here
in issue constituted " initiation fees uniformly
required as a condition of acquiring ... member-
ship," within the meaning of Section 8(a)(3) and
8(b)(2) of the Act. It follows that the Respondent
was privileged pursuant to the terms of its union-
security agreement with the Employer to require
payment of such fees, and, if necessary, to enforce
such payment through the sanctions of discharge or
threat of discharge .6
4 See, e g , Food Machinery and Chemical Corporation , 99 NLRB 1430,
and cases cited in fn 3 The constitution and bylaws of the union in the
cited case provided for various classifications to which different initiation
or reinstatement fees were applicable Thus, no fee was required of a
recently discharged veteran , only a nominal reinstatement fee for a former
member holding a withdrawal card, a $ 60 reinstatement fee for a former
member not holding such a withdrawal card , and a $ 30 initiation fee for a
new member The Board upheld the reasonableness of these classifications
The assertion in the dissenting opinion in the instant case, that Food
Machinery " makes plain [that ] it is not a reasonable classification to pro-
vide for a reinstatement only for employees who were employed by the em-
ployer in non -unit jobs," is simply not supported by any reading of that
case
s See, e g , Ferro Stamping and Manufacturing Co , 93 NLRB 1459, Local
153, Automobile Workers and Richard Stacker, et al , 99 NLRB 1419, Kaiser
Steel Corporation , 125 NLRB 1039
Although we hold below that the threats of discharge directed against
employees Monte and Flick were unlawful , we do so on an entirely
separate and unrelated basis Unlike our dissenting colleague, we find in-
sufficient evidence in the record to support either a finding that the
discharges were "not threatened pursuant to the union security clause" or a
finding that the threats were aimed at coercing payment prior to the 60-day
grace period provided for in that clause As the record shows, the em-
ployees were simply told that if they did not sign checkoff authorization
cards the Employer would be notified and the employees discharged We
are not prepared to infer on the strength alone of the statements made to
Monte and Flick that the threats to them were made on a basis other than
the sanction of the union-security clause , or that the checkoff authoriza-
tions, if signed , would have required the payment of initiation fees and dues
before the expiration of the grace period
METAL WORKERS' ALLIANCE, INC.
Our dissenting colleague questions our view of
the case as involving a lawful reinstatement fee im-
posed as a condition of membership and enforced
through a valid union-security agreement. He
would have us instead, as nearly as we can make
out, view the reinstatement fees not as a member-
ship requirement "ancillary to the valid union
security provision of the contract," but as unrelated
payments unilaterally exacted by the Respondent
from salaried employees reentering the unit as a
condition to their regaining previously accumulated
unit seniority. The difficulty with that approach is
that it is neither consistent with the complaint's
theory of the case nor with the facts as they appear.
The complaint, although attacking the reinstate-
ment fees as discriminatory, nevertheless recog-
nizes , indeed it affirmatively avers, that the fees
were imposed as an obligation of membership en-
forceable through the union-security provisions of
the contract.? There is nothing in this record to in-
dicate that seniority rights as such were conditioned
upon payment of reinstatement fees, either by the
terms of the contract or by unilateral fiat of the
Respondent. Upon reentering the unit, the em-
ployees became unqualifiedly entitled to regain
their accumulated seniority and to retain such
seniority as long as they remained unit employees.
Of course, they also became obliged, like other unit
employees, to comply with the union membership
requirements of the lawful union-security clause of
the contract if they were to continue as employees.
But simply because seniority was an incident of em-
ployment, it cannot be said in any true sense that
this converted the reinstatement fees required for
union membership into an unlawful condition for
the retention of seniority, as the dissent appears to
suggest.8
For the reasons stated, we shall dismiss all the
unfair labor practice allegations of the complaint,
except the allegation specifically relating to the
threat to discharge employees for failure to sign
checkoff authorization cards, an allegation on
which the Trial Examiner did not pass and to the
consideration of which we now turn.
' Without such an averment there obviously could be no possible basis
for the alleged 8(b)(2) violation , since it is not alleged in this case that the
Respondent ever communicated to the Employer a request to take action
against any employee for nonpayment of his reinstatement fee Although
our dissenting colleague would reverse the Trial Examiner and find an
8(b)(2) violation, he does not explain the theory on which he would spell
out such a violation within the terms of that section
' Krambo Food Stores, Inc, 106 NLRB 870, 877, relied on in the dissent,
is clearly inapposite to the facts of this case That case merely stands for the
proposition that a union-security provision cannot be enforced by taking
II
817
As found above , employees Monte and Flick,
both of whom had previously been transferred out
of the bargaining unit to become supervisors, were
told by the Respondent 's agents after their return to
the bargaining unit that the Respondent would
request the Employer to discharge them if they did
not sign checkoff authorization cards . The record
shows that the cards they were asked to sign would
have authorized the Employer to check off sums for
the payment of "membership dues , including initia-
tion or reinstatement fees and monthly dues." The
Board has held that employees , although subject to
the provisions of a lawful union -security agreement,
have a right under Section 7 of the Act to refuse to
sign checkoff authorization cards such as are here
involved . American Screw Company , 122 NLRB
485. Accordingly , we find that , although the
Respondent did not engage in an unfair labor prac-
tice by requiring payment of reinstatement fees
from employees Monte and Flick, it did violate Sec-
tion 8(b)(1)(A) by threatening their discharge if
they refused to sign the checkoff cards.9
THE REMEDY
Having found that the Respondent has engaged
in unlawful conduct in violation of Section
8(b)(1)(A) 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.
ADDITIONAL CONCLUSION OF LAW
Upon the foregoing findings of fact and the entire
record in this case , we hereby make the following
additional conclusion of law:
By threatening to have employees discharged if
they refused to sign a checkoff authorization card,
the Union restrained and coerced employees in the
exercise of their Section 7 rights, thereby violating
Section 8(b)(1)(A) of the Act.
adverse action against an employee, short of discharge In this case there is
no evidence that the Respondent ever threatened to have employee
seniority rights removed , or invoke other sanctions , short of discharge, if
reinstatement fees were not paid
Although the complaint alleged only that the employees were
threatened with discharge if they failed to execute a written checkoff
authorization for "reinstatement fees," the evidence shows that the threats
related to checkoff cards were made as in the form set out above , and the
issue was fully litigated by all parties on that basis
354-126 O-LT - 73 - pt. 1 - 53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Metal Workers' Alliance, Incorporated, Al-
liance, Ohio, its officers, agents, and representa-
tives, shall:
1. Cease and desist from restraining or coercing
employees of TRW Metals Division, TRW, Inc., in
the exercise of the rights guaranteed by Section 7
of the Act by threatening to have them discharged
if they refuse to sign checkoff authorization cards.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Post at the union office or place of business
and at all locations where notices to union mem-
bers are customarily posted, copies of the notice at-
tached hereto marked "Appendix."10 Employer,
TRW Metals Division, TRW, Inc., being willing,
copies of said notice shall also be posted at its place
of business in locations where notices to employees
in the category of Metal Workers' Alliance, Inc.,
members are customarily posted. Copies of said
notice on forms provided by the Regional Office for
Region 8, shall, after being duly signed by represent-
atives of the Respondent Union, be posted im-
mediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to union members are customarily dis-
played. Reasonable steps shall be taken by the
Respondent Union to insure that said notices are
not altered, defaced, or covered by any other
material. Sign and forthwith return sufficient copies
of said notice to the Regional Director aforemen-
tioned for posting by TRW Metals Division, TRW,
Inc., the Employer being willing, at locations afore-
mentioned.
(b) Notify the Regional Director for Region 8, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER ZAGORIA, dissenting in part:
I agree with my colleagues' finding that the
Respondent Union violated 8(b)(1)(A) by
threatening to cause the discharge of employees
returning to unit positions if they refused to sign
10 In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words " a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
11 The contractual provision in question , adopted June 30, 1966,
amended an earlier provision which permitted accumulation of unit
seniority even while in a supervisory position It applied prospectively, so
checkoff authorization cards for the payment of
reinstatement fees to the Respondent Union. I dis-
sent from their dismissal of the complaint's allega-
tion that Respondent Union violated 8(b)(1)(A)
and (2) by conditioning supervisors' return to the
bargaining unit on payment of "reinstatement fees"
to the Union, and threatening employees who had
returned to the unit from supervisory positions with
discharge for failing to pay those fees.
The facts show that the Union had a contract
with the Employer providing, in pertinent part, that
employees promoted to supervisory positions could
return to the bargaining unit, with all seniority ac-
crued by them in their earlier employee status."
Despite this contractual provision, the Union
refused to permit a number of employees to return
to unit jobs unless they paid the Union a reinstate-
ment fee. Each employee did pay the fee under
threat of losing his job if he did not do so. The rein-
statement fee required by the Union was not in ac-
cordance with any contractual provision,' but was
based on the Union's constitution and bylaws,
which provided that employees would be accorded
the rights given to them by the collective-bargain-
ing agreement only if they paid a reinstatement fee
to the Union, amounting to $50 for employees em-
ployed as a supervisor for less than 1 year, $100 for
employees with more than I but less than 2 years'
employment outside the bargaining unit, and $150
for more than 2 years' employment outside the bar-
gaining unit.12
Four employees who had been transferred to su-
pervisory positions outside the bargaining unit were
transferred back to the unit on October 26.13 All
four were told by union representatives that they
had to pay the reinstatement fee required by the
bylaws or be discharged. Each of them paid the
requisite fee, which amounted to $150 each for
Flick and Monte, $50 for Conser, who left the unit
only 40 days earlier and paid his September and
October union dues, and $100 for Paisley. In each
case these payments were demanded shortly after
the employee's return to the unit.
I would find that the Respondent Union violated
8(b)(2) by its reinstatement fee requirement, as
detailed above. The conduct of the Union, taken
together with its constitution and bylaws, demon-
strates that the payment of the reinstatement fee
was not ancillary to the valid union-security provi-
that seniority previously accumulated as a supervisor remained credited to
the returning employee
12 The Union's regular initiation fee was $ 5, and its dues $2 monthly
"These four were Flick , who had been out of the unit since 1959,
Monte, who left the unit in 1961, Conser, who left the unit September 16,
1966, only 40 days before he returned, and Paisley , who left the unit March
1, 1965
METAL WORKERS ' ALLIANCE; INC.
Sion of the contract. Rather, it served only the pur-
pose of permitting employees so situated to buy
back their seniority from the Union. Even assuming
that a contract between a company and a union
could lawfully condition seniority standing on pay-
ment of dues, initiation fees, or reinstatement fees
to a union, this contract did not do so. It flatly and
unequivocally provided that employees transferred
to positions not in the bargaining unit could return
to the unit with their old seniority intact without
providing for payment to the Union. Therefore, and
without regard to the fact that the reinstatement
fees here were in some instances many times more
than dues and initiation fees required of unit em-
ployees,'" the Union could not require payment of
these fees as a condition of retaining seniority in
the bargaining unit.
The Act permits a union, in certain circum-
stances , to condition employment upon payment of
periodic dues and initiation fees; it does not permit
,a union to condition other incidents of employment
on payment to the union. As the Board said in
Krambo Food Stores, Inc., 106 NLRB 870, 877,
"Congress permitted one exception to this all-
inclusive ban, namely, employers and unions under
certain circumstances were allowed to require that
employees join or maintain their membership in a
union as a condition of employment. Nothing in the
Act or its legislative history persuades us that the
union-shop provisos to Section 8(a)(3) and 8(b)(2)
were designed to give employers and unions a
license to use various discriminatory devices, short
of discharge. . . ." In that case, the Board found
that the Union violated 8(b)(2) and (1)(A) by
causing the Company to withhold vacation pay
from employees who were delinquent in their dues.
The Trial Examiner, with Board concurrence,
seems to view this case as involving a reinstatement
fee enforced by a valid union-security provision,
with the fee applied uniformly to a reasonable clas-
sification of employees, citing the Food Machinery
case .15 That case is inapposite here for a number of
reasons . First, the discharge was not threatened
pursuant to the union-security clause here, but pur-
suant to the Union's unilateral constitutional and
bylaw provision, and was germane only to the em-
ployees' retention of their accumulated seniority
(accumulated during a period when they were in
the unit , and paid their periodic dues). Secondly,
the payments were required immediately upon the
employees' return to the unit, not after 30 days.
Finally, as Food Machinery itself makes plain, it is
not a reasonable classification to provide for a rein-
statement fee only for employees who were em-
ployed by the employer in nonunit jobs. An em-
ployee who left the Employer's employ altogether
819
was not required to pay a reinstatement fee here.16
For all these reasons, I would reverse the Trial Ex-
aminer, and find that the Union violated 8(b)(2).
" As noted above , employee Conser was out of the unit a little more than
a month, and had actually paid union dues for the 2 months covering the
period of his supervisory employment, yet he was charged a $50 reinstate-
ment fee to retain his 7 years ' seniority accumulated in the unit
"99NLRB 1430
In Food Machinery , the Board majority found lawful a reinstatement
fee requirement that was uniformly applicable to all former members,
without regard to their service with any particular employer Here, as
noted, only employees who were with this employer in noncovered posi-
tions were required to pay a reinstatement fee, and the amount thereof was
directly related to the length of time the employee had been in the non-
covered position I think the case immediately preceding Food Machinery
in the Board volumes, Local 153, UAW (Richard Stacker), 99 NLRB 1419,
demonstrates the correctness of my reading of Food Machinery In Stacker,
the Board unanimously found unlawful imposition of an initiation fee
because the amount of the fee was graduated according to the length of ser-
vice with the employer during a period when the employee was not covered
by a valid union -security agreement ( See also the dissenting opinion of
Chairman Herzog and Member Houston in Food Machinery , supra ) In
short , the distinction made by the Respondent Union in this case is not
between new members and former members , but between former members
who continued working for the Employer in noncovered positions and
former members who left the employ of this Employer altogether This
distinction has never before been considered by the Board to be a reasona-
ble classification
APPENDIX
NOTICE TO ALL MEMBERS OF METAL WORKERS'
ALLIANCE, INCORPORATED
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT restrain or coerce employees
in the exercise of rights guaranteed by Section
7 of the Act, by threatening to have them
discharged if they refuse to sign checkoff
authorization cards.
METAL WORKERS'
ALLIANCE, INCORPORATED
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Federal Office Building, Room 1695, 1240
East Ninth Street, Cleveland, Ohio 44199,
Telephone 216-621-4465.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a charge
filed November 14, 1966,1 and upon an amended
charge filed December 19, and a second amended
charge filed February 27, 1967, by Robert C. Flick,
an individual, a complaint and notice of hearing
was issued on March 3, 1967, against Metal Work-
ers' Alliance, Incorporated (hereinafter called the
Respondent Union). The complaint alleges, in sub-
stance , that the Respondent Union violated Section
8(b)(1)(A) and 8(b)(2) of the Act by requiring
employees who leave bargaining unit jobs to accept
supervisory positions or jobs outside the bargaining
unit to pay a reinstatement fee upon their return to
jobs in the bargaining unit . The complaint also al-
leges that the Respondent Union violated the above
sections of the Act by threatening to cause the
discharge of employees returning to bargaining unit
positions in the event they failed to pay the rein-
statement fee. The answer filed on behalf of the
Respondent Union admits certain allegations of the
complaint, denies others, and specifically denies the
commission of unfair labor practices. This case was
heard by me on April 25, 1967, in Alliance, Ohio.
All counsel were afforded full opportunity to be
heard and to introduce relevant evidence. Briefs
have been submitted by the General Counsel and
the counsel for the Respondent Union, and they
have been fully considered by me in arriving at my
decision in this matter.
Upon the entire record in this case, including my
evaluation of the witnesses based on my observa-
tion of their demeanor, and upon all of the relevant
evidence contained in the record, I make the fol-
lowing:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
TRW Metals Division, TRW, Inc. (hereinafter
called the Company), is an unincorporated division
of TRW, Inc., an Ohio corporation. The Company
maintains its principal office in Alliance, Ohio, and
operates plants in Alliance and Minerva, Ohio,
where it is engaged in the manufacture of invest-
ment castings, high alloy steels, stainless steels, and
vacuum grade steels. In the course of its business
operations, the Company annually ships finished
goods and products valued in excess of $50,000
from its Alliance and Minerva, Ohio, plants directly
to points outside the State of Ohio. In addition, the
Company annually purchases goods and material
valued in excess of $50,000 from suppliers located
outside the State of Ohio, and causes such goods
and materials to be shipped to its facilities in Al-
liance and Minerva, Ohio.
The complaint alleges and the Respondent Union
admits that the Company is an employer engaged in
commerce within the meaning of the Act. Ac-
cordingly, I find that the Company 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.
II. THE LABOR ORGANIZATION INVOLVED
Metal Workers' Alliance, Incorporated, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
There is little dispute concerning the material
facts in this case. The Respondent has been the col-
lective-bargaining representative of the Company's
production and maintenance employees since 1959.
Initially, the unit only embraced the employees at
the Minerva plant, but the latest collective-bargain-
ing agreement includes the production and main-
tenance employees at the Alliance plant as well.'
The collective-bargaining agreement for the
period 1963-1966 contained a provision, which
required as a condition of employment, that all bar-
gaining unit employees who failed to join or main-
tain membership in the Respondent Union pay a
monthly service charge not to exceed the amount
of the monthly union dues.' The current agreement
modifies this provision to require all unit employees
who are members to remain members, and all who
i Unless otherwise indicated, all dates herein refer to 1966
2 The current agreement is for the period May 19, 1966, to May 20,
1969 The unit is described as follows
All production and maintenance employees at the Company 's Minerva
and Alliance , Ohio, plants including leadmen , if any, hourly service
employees , and hourly shipper -receivers , but excluding Company time
study and job evaluation employees , laboratory assistants and
technicans , office clerical employees , plant clerical employees,
guards, professional employees and supervisors as defined in the Na-
tional Labor Relations Act
3 Art 5 2 of the 1963-1966 agreement which in pertinent part provided
Each employee who fails voluntarily to acquire or maintain member-
ship in the Union shall be required , as a condition of employment,
beginning on the sixtieth (60th) day following the beginning of such
employment or the date of this Agreement , whichever is later, to pay
to the Union each month a service charge as a contribution toward the
administration of this Agreement and the representation of said em-
ployee The service charge for the first month shall be an amount not
in excess of the regular and usual monthly dues of the Union, and the
service charge for each month thereafter shall not exceed the regular
and usual monthly dues of the Union .
METAL WORKERS' ALLIANCE, INC. 821
are not to become and remain members after a
specified period of time.4
Over the years, the Company has followed the
practice of promoting unit employees to superviso-
ry positions and transferring employees to salaried
or hourly paid jobs outside of the unit. In recogni-
tion of this fact, specific provisions were placed in
the Respondent Union's constitution and bylaws
concerning reinstatement of membership in the
Union. In addition, provisions were incorporated in
the various collective-bargaining agreements con-
cerning the seniority rights of the employees so
transferred. For example, the constitution and
bylaws, amended in 1960, contained a clause which
in relevant part provided:
Initiation fees shall be One Dollar ($1.00), it
being, however, provided that if for any reason
other than for promotion to a supervisory
capacity, as defined in the Labor-Management
Act of 1947, as amended, an employee
withdraws from the organization for each
month as such employee has withdrawn and
not paid dues, the initiation fee shall be in-
creased One Dollar ($1.00) per month, not to
exceed 24 months .... 5
The 1963-66 collective-bargaining agreement con-
tained the following provisions relating to the
seniority of employees in supervisory positions and
the seniority of unit employees transferred to jobs
outside of the unit:
7.7 SENIORITY OF SUPERVISORS.
Employees in supervisory positions as of July
20, 1959, shall have full credit for all seniority
accumulated by them as of said date whether
in or out of the bargaining unit. They shall con-
tinue to accumulate seniority while employed
in the supervisory position. In the event such
an employee is transferred from the superviso-
ry position for any reason, then the Company
may place such employee in any occupation in
the group he is supervising at the time of his
removal from supervision, provided he actually
supervised the job he is placed in, or in any
code in the bargaining unit which he formally
held. In either such event the employee must
be qualified to perform the job and be entitled
thereto by virtue of his total seniority. This
paragraph shall not inure to the benefit of any
supervisor hired as such after July 20, 1959,
but all employees thereafter promoted from
the bargaining unit to supervisory positions
shall be entitled to the benefits hereof.
7.8 SENIORITY OF OTHER SALARIED
EMPLOYEES.
An employee who previously worked in the
bargaining unit, and who had been transferred
to a salaried job or an hourly rated job in the
bargaining unit, shall continue to accumulate
seniority while so engaged, and in the event of
layoff or transfer, may be returned by the
Company to a job within the bargaining unit
provided he previously worked on the job to
which he is being returned and provided he
had more seniority than the employee dis-
placed.
The current collective-bargaining agreement, how-
ever, modifies these provisions to eliminate the ac-
cumulation of seniority while employees occupy su-
pervisory positions or jobs outside of the bargaining
un it.6
"This provision is found in art 5 of the current collective-bargaining
agreement , and reads as follows
5 1 It shall be a condition of employment that all employees of the
Company covered by this Agreement who are members of the Union
in good standing on the effective date of this Agreement shall remain
members in good standing Employees who are not members on the ef-
fective date of this Agreement shall, on the sixtieth day following the
effective date of this Agreement , become and remain members in
good standing in the Union It shall also be a condition of employment
that all employees covered by this Agreement and hired on or after its
effective date shall on the sixtieth day following the beginning of such
employment become and remain members in good standing in the
Union
' G C Exh 3, art 11(c)
6 These provisions are contained in art 7 of the current collective-bar-
gaining agreement , and in pertinent part read as follows
7 7 SENIORITY OF SUPERVISORS
As of June 20, 1966, no employee in a supervisory position with the
Company will accumulate seniority while in such position The seniori-
ty rights of supervisors shall be as follows
(a) Employees in supervisory positions as of July 20, 1959, shall
have full credit for all seniority accumulated by them as of June
20, 1966, whether in or out of the bargaining unit Thereafter,
they shall accumulate no further seniority while in the supervisory
position
(b) Employees promoted from the bargaining unit prior to May
20, 1966, shall have full credit for all seniority accumulated by
them as of June 20, 1966, whether in or out of the bargaining unit
Thereafter, they shall accumulate no additional seniority while in
the supervisory position
(c) Employees who may be promoted from the bargaining unit to
supervisory positions on or after May 20, 1966, shall have full
credit for all seniority accumulated by them as of their date of
transfer Thereafter they shall accumulate no additional seniority
while in the supervisory position
(d) A supervisor hired as such after July 20, 1959, shall have no
seniority rights hereunder
In order to implement the changes in this paragraph , an employee
who is in a supervisory position as of May 20, 1966, may be returned
to the bargaining unit by the Company on or before June 20, 1966,
without payment of any Union reinstatement fee
7 9 SENIORITY OF OTHER SALARIED EMPLOYEES
An employee who previously worked in the bargaining unit, and
who has been transferred to a salaried job or an hourly rated job not in
the bargaining unit prior to May 20, 1966, shall accumulate seniority
until June 20, 1966 Thereafter he shall retain his seniority but shall
accumulate no additional seniority while so engaged An employee
who may be transferred from the bargaining unit to a salaried job or an
hourly job not in the bargaining unit on or after May 20, 1966, shall
retain the seniority as accumulated as of the date of transfer but shall
accumulate no additional seniority while so engaged In the event such
an employee is laid off from that position, or is disqualified by the
Company for medical reasons, or because of unsatisfactory per-
formance he may be returned by the Company to a job within the bar-
gaining unit provided he previously worked on the job to which he is
being returned and provided he has more seniority than the employee
displaced In order implement the change in this paragraph an em-
ployee who has been transferred from the bargaining unit to a salaried
job or an hourly rated job not in the bargaining unit as of May 20,
1966, may be returned to the bargaining unit by the Company on or
before June 20, 1966 , without the payment of any Union reinstate-
ment fee
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the provisions in the collective-bar-
gaining agreement, the Respondent Union also
adopted a series of amendments to the constitution
and bylaws setting forth a schedule of reinstatement
fees for employees returning to bargaining unit
positions from supervisory jobs or jobs outside of
the unit. In the fall of 1965, the constitution and
bylaws were amended in the following manner:
Initiation fees shall be Five Dollars ($5.00), it
being, however, provided that any member
who voluntarily leaves the bargaining unit to
accept employment with the employer out of
the bargaining unit , which employment under
the terms of the collective-bargaining agree-
ment, will entitle the employees to accumulate
bargaining unit seniority while so employed,
must upon being reassigned to the bargaining
unit pay a reinstatement fee to the treasury of
the Metal Workers' Alliance, Inc., in ac-
cordance with the following schedule:
(1) $50.00 for one year or less employ-
ment outside the bargaining unit.
(2) $100.00 for two years or less employ-
ment outside the bargaining unit.
(3) $150.00 for three years or less em-
ployment outside the bargaining unit.
The above reinstatement may be paid by
check-off over a period not to exceed three
monthly dues check-off dates after reinstate-
ment to the bargaining unit.
On August 14, 1966, the above provision was
further amended to delete the phrase, "which em-
ployment under the terms of the collective-bargain-
ing agreement will entitle the employees to accu-
mulate bargaining unit seniority while so em-
ployed." Because of the patent ambiguity contained
in the language of the 1965 amendment, this provi-
sion was further revised in November 1966, to read
as follows:
B. Application of the Reinstatement Fee
Requirement
1. Robert C. Flick
Flick has been employed by the Company since
1957. He transferred from the Company's Cleve-
land plant to the Minerva plant as a foreman in
1957 and remained in that job until 1958, when he
transferred to a bargaining unit job because of a
production cutback. In August 1959, while in the
bargaining unit, Flick joined the Respondent Union
and paid union dues for the months of August and
September. In September 1959 Flick again left the
bargaining unit for a supervisory position.
Thereafter he continuously held supervisory or
nonunit jobs until he transferred back into the bar-
gaining unit on October 26, 1966. Approximately a
week after he transferred back into the unit Flick
was told by Union Steward Hawk that he had to
sign an authorization card giving the Company
authority to check off his reinstatement fee and his
monthly union dues. Flick did not sign the
authorization card immediately and a few days later
was approached by Ruth Ann Bettis, treasurer of
the Union, concerning the matter. Bettis told Flick
that he had to sign the authorization card or the
Union would inform the Company and he would be
discharged. Flick subsequently signed the card.
A few months prior to his return to the bargain-
ing unit Flick had a conversation with Union Vice
President Caswell concerning the purpose of the
reinstatement fee. Henry Monte, another employee
who at that time held a position outside of the bar-
gaining unit , was also present during the conversa-
tion. Caswell told Flick and Monte that employee
Murchy Robinson had returned to a bargaining unit
job, retained all of his accumulated seniority, and
replaced a man on the job. According to Caswell,
this was done without payment of any fee to the
Union and it was unfair. Caswell stated that this
was one of the reasons why the Union put the rein-
statement fee into effect.
(1) $50.00 for less than 1 year employment
outside the bargaining unit.
(2) $100.00 for 1 year but less than 2 years
employment outside the bargaining unit.
(3) $150.00 for more than 2 years employ-
ment outside the bargaining unit.
In addition to the amendments to the constitution
and bylaws, the union-security provision in the cur-
rent collective-bargaining agreement made the pay-
ment of initiation fees, reinstatement fees, and
monthly dues a condition of employment.'
' Although it would appear from the wording of the 1965 amendment
that the Union could charge an employee the maximum reinstatement fee
for holding a position outside the bargaining unit for a year or less, this was
not the intent nor was the provision applied in this manner It is apparent
2. Henry Monte
Monte began working for the Respondent in
1958. In 1961 he was transferred to a salaried posi-
tion outside of the bargaining unit. Monte sub-
sequently became a foreman and held that position
until he transferred back into the bargaining unit on
October 26, 1966. Shortly after his transfer back
into the unit Monte was asked by Union Steward
Aeling to sign an authorization card for the
checkoff of his reinstatement fee. Monte refused to
do so, and was later informed by Bettis that if he
from the record that the reinstatement fees were always assessed in ac-
cordance with the language of the final revision of the amendment
8 G C Exh 6, art V
METAL WORKERS ' ALLIANCE, INC. 823
did not sign the card the Union would notify the
Company and ask for termination of his employ-
ment. Monte relented and executed the required
authorization card.
3. Daniel Conser
Conser was hired by the Company in 1959. On
September 16, 1966, Conser was promoted to a
foreman's position. The following month (October
26), Conser was transferred back into the bargain-
ing unit and the Union required him to pay a $50
reinstatement fee.9
Prior to becoming a foreman Conser had been a
chief steward in the Union, and, as such, was a
member of the Union's executive committee.
Conser attended a meeting of the executive com-
mittee in May or June 1966, at which time Union
President Kajganic informed the committee mem-
bers that an employee would be liable for payment
of the reinstatement fee even though he were only
out of the bargaining unit for 1 day. Kajganic in-
dicated that the reinstatement rule would be strictly
applied.
4. William Paisley
Paisley has been in the Company's employ since
1958. On March 1, 1965, Paisley was promoted to
a foreman's position. On October 26, 1966, Paisley
returned to the bargaining unit, and the Union
required him to pay a reinstatement fee of $100.
In addition to the above-named employees, the
record shows that a number of other employees had
at one time or another transferred from bargaining
unit jobs to salaried positions. In each instance
when these employees returned to the bargaining
unit after the adoption of the reinstatement fee,
they were required to pay the fee in accordance
with the schedule set forth in the Union's constitu-
tion and bylaws.
C. Contention of the Parties
The General Counsel contends that the reinstate-
ment fee bears no relationship to the Union's dues
structure, and that the enforcement of the payment
of the fee through the union-security clause in-
dicates that the sole purpose of the requirement is
to deter reentry of salaried and/or supervisory em-
ployees into the bargaining unit. The General
Counsel further contends that even if the fee were
not designed for this purpose, it would still be un-
lawful as it imposes an obligation analogous to the
payment of union dues accruing during a time when
the employees are outside of the bargaining unit
and under no duty to meet membership obligations.
The Respondent Union, on the other hand, con-
tends that the reinstatement fee is uniformly ap-
plied to specific class of employees, the basis of
which is reasonable. The Respondent Union notes,
and correctly so, that the complaint does not allege
a violation of Section 8(b)(5).10 Hence, the issue is
not whether the fee is excessive, but whether the
fee and the enforcement thereof through the union-
security provisions causes the Company to dis-
criminate against employees in violation of Section
8(a)(3) or against employees whose membership in
the Union has been denied for reasons other than
failure to pay periodic dues and initiation fees.
Concluding Findings
As noted previously, the operative facts are not
in dispute in this case. The Respondent Union did
adopt a schedule of reinstatement fees for em-
ployees returning to the bargaining unit from posi-
tions outside of the unit. In addition, the Respon-
dent Union enforced payment of the reinstatement
fee through the union-security provisions of the col-
lective-bargaining agreement with the Company.
Therefore, the narrow issue to be decided here is
whether the assessment and the enforcement of
these fees through the union-security clause con-
stitutes a violation of Section 8(b)(1)(A) and (2).
Contrary to the arguments advanced by the
General Counsel, I find that the application of the
reinstatement fee in these circumstances is not a
violation of the Act. The Board has long ago held
that a reinstatement fee enforced through a valid
union-security clause is not unlawful provided the
requirement is uniformly applied to a classification
of employees which is reasonable. Food Machinery
and Chemical Corporation, 99 NLRB 1430; Interna-
tional Association of Machinists, Precision Lodge No.
1600 (Adel Precision Products), 120 NLRB 1223;
Local 173, International Molders and Foundry
Workers Union of North America, AFL-CIO
(Hublry Manufacturing Company), 121 NLRB
170. The evidence in this case conclusively estab-
lishes that the reinstatement fees were uniformly
applied to all employees returning to unit jobs
from salaried or hourly paid positions outside of
the bargaining unit.
The General Counsel cites a number of cases in
which reinstatement fees have been held to be un-
lawful. But a careful reading of these cases in-
dicates that the decisions rest upon factors which
are not present in the instant case. For example, in
Kaiser Steel Corporation, 125 NLRB 1039, the
9 During the months of September and October Conser also paid his
union dues even though he held a position outside of the bargaining unit for
the major portion of that period There is no evidence in the record, how-
ever, to indicate that the Union insisted on payment of Conser 's dues for
this period
° Sec 8(b)(5) in pertinent part reads
To require of employees covered by an agreement authorized under
subsection ( a)(3) the payment, as a condition precedent to becoming
a member of such organization , of a fee in an amount which the Board
finds excessive or discriminatory under all the circumstances
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union sought to exact a reinstatement fee from a
supervisor returning to a bargaining unit job. The
fee sought was equivalent to the monthly dues ac-
crued while the employee held the supervisory posi-
tion. The Board found this to be unlawful as the
employee was under no legal obligation to pay dues
while a supervisor , and the Union could not condi-
tion unit employment upon such payment . In Spec-
tor Freight System, Inc.," the Union , by means of a
union -security provision , caused the employer to
terminate an employee for failure to pay a rein-
statement fee after suspension from membership.
The employee was suspended from membership
because of his- failure to - pay monthly dues for a
period which included a month when he was not
employed by the Company and under no obligation
to pay dues . It was held that this conduct violated
Section 8(b)(1)(A) and ( 2) as the employee was
under no statutory duty to pay union dues when not
employed by the Company . In addition , the suspen-
sion from membership was found to be unlawful
because it was predicated upon the payment of
dues during a period when the employee was under
no obligation to do so . The latest expression on this
point is the Board's recent decision in International
Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths , Forgers and Helpers , Local Lodge No.
338, AFL-CIO (Eidal International Division
Southwest Factories , Inc.), 166 NLRB 874. The
majority decision in that case sustained the Trial
Examiner 's finding of a violation of 8(b )( 2) for the
reason that the Union canceled the employee's
membership and imposed a reinstatement fee solely
because of the employee 's refusal to pay dues for
the initial month of his employment , an obligation
he was not required to meet under the terms of the
union -security clause in the contract.
Therefore, in each instance where a violation has
been found , the Union involved has attempted to
exact a membership obligation from an employee
covering a period when the employee was under no
duty to make such payments . This does not apply to
the circumstances of the instant case . Here there is
not evidence whatsoever to warrant the inference
that the reinstatement fees were intended or con-
sidered to be payment of monthly union dues ac-
crued while the employees held positions outside of
the bargaining unit . Indeed , one of the General
Counsel 's main arguments is that the reinstatement
fees are wholly unrelated to the dues structure.
Moreover , employees returning to the bargaining
unit are immediately entitled to certain benefits and
rights under the collective -bargaining agreement
which do not apply to new hires . For example, em-
ployees promoted to supervisory positions prior to
May 20, 1966, retain all seniority accumulated by
them as of June 20, 1966, whether in or out of the
bargaining unit . Employees promoted to superviso-
ry positions after May 20, 1966, retain all unit
seniority accumulated until the date of transfer.
Salaried or hourly paid employees who transferred
from unit jobs prior to May 20, 1966, accumulate
and retain unit seniority until June 20, 1966, and
employees who so transfer after May 20, 1966,
retain all accumulated unit seniority. In addition,
supervisory or nonbargaining unit employees trans-
ferring back into the unit are immediately entitled
to share in unit overtime, are eligible for paid
holidays and vacations, are immediately covered
under the insurance provisions of the contract, and
have shift preference and job bid rights. In contrast,
new hires must successfully fulfill certain proba-
tionary requirements before they can become eligi-
ble for these benefits. I find, therefore, that the
basis for the application of the reinstatement fees to
this class of employees-those returning to the unit
from nonunit positions-to be entirely reasonable
and nondiscriminatory.12
Accordingly, I find and conclude that the assess-
ment of the reinstatement fees and the enforcement
thereof through the union-security provisions of the
collective-bargaining agreement do not, in the cir-
cumstances of this case, constitute a violation of
Section 8(b)(1)(A) or (2).
CONCLUSIONS OF LAW
1. TRW Metals Division , TRW, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By adopting a schedule of reinstatement fees
pertaining to employees who return to bargaining
unit jobs from positions held outside of the bargain-
ing unit and by enforcing payment of such fees
through the union -security provisions contained in
the collective -bargaining agreement with the Com-
pany, the Respondent has not committed violations
of Section 8(b)(1)(A) and (2) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in
this case, I recommend that the allegations of the
complaint herein be dismissed in their entirety.
" 123 NLRB 43, enfd 273 F 2d (C A 8), cert denied 362 U S 962
z It is true that rigid application of the reinstatement requircment did
and could result in individual hardship Thus employee Conser, who held a
nonunit position for little more than a month , was required to pay the
minimum reinstatement fee of $ 50 In sharp contrast to this, however, is
the situation which pertains to the Charging Party , Flick This employee
paid initiation fees and dues amounting to $6 in 1959, and thereafter held
nonunit jobs until October 1966, retaining during this time all of his
seniority and fringe benefit rights under the collective-bargaining agree-
ments But the harshness or temperateness of the reinstatement require-
ment as it relates to individual employees has no relevancy in determining
whether a violation exists in this case