Oklahoma Fixture Co.

National Labor Relations Board - Board Decisions

Jan 8, 1992

305 N.L.R.B. 1077 (N.L.R.B. 1992)

1077
305 NLRB No. 167
OKLAHOMA FIXTURE CO.
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The correct citation to Teamsters Local 439 (Shippers Imperial) is
281 NLRB 255 (1986).
1 The charge in Case 17–CA–15383 was filed on January 11,
1991; that in Case 17–CB–3993 on January 24.
2 The contract covers some 650 employees ‘‘performing carpentry
and wood working functions’’ at the Company’s Tulsa plant.
Oklahoma Fixture Company and Brian K. Hopkins
Carpenters’ Local Union No. 943, United Brother-
hood of Carpenters and Joiners of America,
AFL–CIO and Brian K. Hopkins. Cases 17–
CA–15383 and 17–CB–3993
January 8, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 27, 1991, Administrative Law Judge
Richard J. Boyce issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, the Respondent Employer filed a brief in support
of the judge’s decision, and the Respondent Union
filed exceptions and a supporting brief and a brief in
response to the General Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Carpenters’ Local Union
No. 943, United Brotherhood of Carpenters and Joiners
of America, AFL–CIO, Tulsa, Oklahoma, its officers,
agents, and representatives, shall take the action set
forth in the Order.
IT IS FURTHER ORDERED that the complaint in Case
17–CA–15383 is dismissed.
Francis A. Molenda, Esq., for the General Counsel.
Stephen L. Andrew, Esq., of Tulsa, Oklahoma, for Respond-
ent Company.
Thomas F. Birmingham, Esq., of Tulsa, Oklahoma, for Re-
spondent Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. I heard
this consolidated matter in Tulsa, Oklahoma, on June 20,
1991.
The consolidated complaint, based on charges filed by
Brian K. Hopkins, acting in his individual capacity,1 issued
on March 13, 1991. It alleges that Carpenters’ Local Union
No. 943, United Brotherhood of Carpenters and Joiners of
America, AFL–CIO (Union) violated Section 8(b)(1)(A) of
the National Labor Relations Act (Act) on or about Decem-
ber 5, 1990, by threatening Hopkins with job loss unless he
tendered membership fees and dues when he was under no
obligation to do so; and that the Union violated Section
8(b)(2) on about December 6 by requesting that Oklahoma
Fixture Company (Company) discharge Hopkins for reasons
other than his failure to tender lawfully required fees and
dues.
The complaint further alleges that the Company violated
Section 8(a)(3) and (1) on about December 6 by discharging
Hopkins in compliance with the Union’s request.
I. JURISDICTION, LABOR ORGANIZATION
The Company, located in Tulsa, is engaged in the manu-
facture and nonretail sale of store fixtures and related prod-
ucts. The complaint alleges, the answer admits, and I find
that it is an employer engaged in and affecting commerce
within Section 2(2), (6), and (7) of the Act.
The pleadings also agree and I find that the Union is a
labor organization within Section 2(5) of the Act.
II. THE ALLEGED MISCONDUCT
A. Evidence
Hopkins began with the Company, as a helper, on Sep-
tember 4, 1990. His hourly wage was $4.42. As alleged, he
was discharged at the Union’s behest on December 6.
Hopkins was subject to a collective-bargaining contract be-
tween the Company and the Union.2 The contract runs from
July 1, 1989, through November 30, 1992, and includes a
union-security clause stating in relevant part (art. 2, sec. 2.1):
It shall . . . be a condition of employment that all em-
ployees covered by this Agreement and hired on or
after its effective date shall, on the ninety-first (91) day
following the beginning of such employment, become
and remain members in good standing of the Union.
The union-security clause further states (art. 2, sec. 2.2) that
‘‘an employee shall lose his good standing only for failure
to tender periodic dues and initiation fees uniformly required
of all members.’’
The contract also contains a checkoff provision which
states in part (art. 3, sec. 3.1):
The Company agrees to deduct from the pay of all em-
ployees covered by this Agreement the dues of the
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 I am unable to find any reference to permit fees in the contract.
Sec. 45C of the constitution of the Union’s parent International au-
thorizes any affiliated local union to ‘‘establish working dues, . . .
supplemental work dues or work fees payable to the Local Union
. . . by members working in its jurisdiction.’’
4 During the hearing, the Union offered to refund the $16.75 col-
lected at the start of the fourth month in light of Hopkins’ discharge
about the same time.
5 Art. 2 of the agreement does not contain a section 3. This pre-
sumably is an old form.
6 Observing that ‘‘a lot of employees . . . can’t read,’’ Officer tes-
tified, ‘‘I just make it a habit to read it to all of them.’’ Hopkins
is literate.
7 Hopkins to the contrary, Officer testified that he also spoke with
Hopkins on December 4. The encounter took place ‘‘in the breeze-
way between the buildings,’’ according to Officer, and he ‘‘re-
minded [Hopkins] that he had to go down that evening and join the
Union.’’ Officer testified that he ‘‘explained . . . that it was a Tues-
day night and the financial secretary [Hughes] . . . stays late on
Tuesdays’’; and that Hopkins rejoined that he ‘‘had the money in
his pocket . . . [and] . . . was going down that evening.’’
8 While Hopkins’ checkoff form, by its terms, authorized the Com-
pany ‘‘to deduct . . . an amount equal to the initiation fee and dues
. . . and to remit such amounts to’’ the Union (emphasis added), the
checkoff provision in the contract applies only to ‘‘the dues of the
Union.’’ Hughes testified that this is the Union’s first contract with
the Company to have a checkoff provision; and that the Union had
Union and agrees to remit to the Union all such deduc-
tions, provided that the Union delivers to the Company
a written authorization signed by each employee to
whom this provision applies . . . .
On his September 4 hire date, Hopkins and other new-
hires attended an orientation session conducted by the Com-
pany’s personnel director, J. R. Killough. The Union’s chief
steward, Carl Officer, also participated. Killough gave each
attendee a ‘‘packet of information’’ which included the
Union’s standard checkoff authorization form and a 1-page
document entitled ‘‘Oklahoma Fixture Co. Dues & Permit
Structure.’’ Both Killough and Officer told those present
about their obligations under the union-security clause, men-
tioning their susceptibility to discharge for noncompliance.
The checkoff form, once signed and submitted, would
‘‘authorize’’ the Company ‘‘to deduct from [the employee’s]
regular wages an amount equal to the initiation fee and dues
established by the Union and to remit such amounts to’’ the
Union.
The document describing the dues and permit structure
stated variously that the Union would charge each employee
a specified permit fee at the start of his/her second and third
months; that each employee was to apply for membership
‘‘after probation period of ninety (90) days,’’ the application
to be made ‘‘in person’’ at the union hall; that membership
would entail the employee’s paying a specified initiation fee
and monthly dues; and that each member would ‘‘be as-
sessed a one time $36.00 Building Assessment fee to be paid
within a 12-month period at $9.00 per quarter.’’ The amount
of fees and dues varied by employee classification, according
to the document, the rates for helpers being $16.75 per
month for both permit fees and membership dues and $55 for
initiation. The document did not address the consequences of
delinquency.3
Hopkins signed and submitted a checkoff form during the
orientation meeting. The Company accordingly deducted
$16.75 from his pay at the start of his second, third, and
fourth months—a total of $50.25—and forwarded it to the
Union.4
On about November 15, Carl Officer presented Hopkins
with this letter, signed by Clenton Hughes, the Union’s fi-
nancial secretary:
NOTICE OF PROBATION EXPIRATION
IF NOT PAID-COULD RESULT IN YOUR
TERMINATION
Date: Nov. 14, 1990
Dear Brian Keith Hopkins
This notice is to inform you that as of 12–04–1990
your ninety days of probation will expire in accordance
with Article 2, Section 1, 2 and 3 of the Collective Bar-
gaining Agreement.5
You are hereby notified that as of 12–04–1990 you
owe a total of $64.00 which was calculated as follows:
Building Assessment $9.00
Initiation Fee $55.00
You may pay between 8:00 A.M. and 4:30 P.M. at
8220 East Skelly Drive, Tulsa, Oklahoma 74129.
Hopkins testified that Officer said little when proffering
the letter; that he ‘‘just handed it to me and told me that the
amount listed was the amount that I was supposed to pay at
the end of my probationary period.’’ Officer testified, on the
other hand: ‘‘I took this letter to him, read it to him, ex-
plained it to him, asked him if he had any questions, he did
not.’’6
Hopkins testified that Officer next spoke to him on De-
cember 5, while he cleaned a restroom. He recounted their
exchange this way:
He told me that I needed to get down to the union of-
fice and pay my initiation fee or I would be terminated.
I told him that . . . I didn’t have transportation, but I
had the amount that was needed to pay my union initi-
ation fee. I also asked him if there was a way that I
could pay the fee from being there at the plant, and he
told me I couldn’t because there was some forms that
I had to go in and sign myself, and therefore I had to
go to the union office myself and pay in person.
Hopkins further testified that Officer recommended that he
‘‘at least call’’ Hughes if he ‘‘had any trouble paying’’ the
fee.
Officer’s version of this conversation corresponds with
Hopkins’ in major detail. He admittedly reminded Hopkins
that the Hughes letter he gave Hopkins in mid-November
‘‘said that he could be terminated if he does not take care
of his business.’’7
Officer testified that he never collects fees or dues himself.
He explained, ‘‘I don’t want no conflict where they say I’ve
collected money and didn’t pay it.’’
Hopkins did not make tender, nor did he see or call
Hughes.8
1079OKLAHOMA FIXTURE CO.
sought in negotiations to extend its embrace to both initiation fees
and dues, but the Company ‘‘didn’t go that far with us.’’
9 Hughes elaborated: ‘‘I would have let him come down there like
anybody else and put the money in an envelope, and I would have
held it until the next installment that he was going to make, which
is . . . the next payday, and . . . he would then . . . make his
[membership] application.’’
10 I do not regard as probative Hughes’ self-serving testimony that
the Union cannot demand, and has never demanded, that an em-
ployee be discharged for failing to pay the building assessment.
11 That Hughes sometimes entered into informal arrangements with
delinquent employees, thereby sparing them from discharge, is not
an added ground for finding a violation. ‘‘[T]he failure to treat all
delinquents alike does not necessarily bar invocation of the union-
security clause against particular individuals.’’ Zoe Chemical Co.,
160 NLRB 1001, 1018 (1966). See also North American Refrac-
tories Co., 100 NLRB 1151, 1155 (1952).
On December 6, Hughes hand-delivered this letter to the
Company’s vice president, Mark Cavins:
This notice is to inform Oklahoma Fixture Company
that the following employee has not complied with Ar-
ticle 2, Section 2.1, 2.2 of the Collective Bargaining
Agreement between Local 943 and Oklahoma Fixture
Company.
You are requested to discharge this employee until
such time as he complies with Article 2, Section 2.1,
2.2.
BRIAN KEITH HOPKINS
At the end of Hopkins’ shift on December 6, Officer es-
corted him to the personnel office, where Killough asked if
he had paid his initiation fee. Hopkins said no, and Killough
advised him orally and by letter that he was terminated. The
letter:
To: BRIAN HOPKINS
Date: December 6, 1990
This letter is to inform you that your employment
with Oklahoma Fixture Company has terminated for not
complying with Article 2, Section 2.1, 2.2 of the Col-
lective Bargaining Agreement between Oklahoma Fix-
ture Company and Carpenter’s [sic] Local Union 943
which states that all employees must join the union
after their probationary period is up.
Hopkins testified that he told Killough, during this meet-
ing, that he ‘‘couldn’t make it’’ to the union office because
he ‘‘didn’t have transportation.’’ He testified that he also in-
formed Killough that he had told Officer he had ‘‘the amount
that was needed . . . and . . . asked him if there was any
kind of way . . . [to] . . . pay from being there at the job.’’
Killough testified that he could not recall Hopkins’ offering
this or any other reason for nonpayment.
Officer, although witness to the discharge conversation,
did not render his account.
Hughes testified that ‘‘the main reason’’ he demanded the
discharge was that Hopkins ‘‘didn’t make any contact with
[him] whatsoever or try to make any arrangements’’; that he
would not have delivered the letter had Hopkins ‘‘made
some arrangements over the telephone’’; and that all Hopkins
‘‘had to do was communicate with’’ him.
Hughes also testified that, if an employee’s 91st day
should fall between paydays, he will ‘‘give them usually, if
they contact [him] and talk to [him] . . . until the next pay-
day.’’ He further testified that, had Hopkins tendered $25 on
his 91st day, arranging to pay the $30 balance on the payday
weeks hence, he would not have made the discharge de-
mand.9
Hughes testified, finally, that the Union cannot demand,
and has never demanded, that an employee be discharged for
failing to pay the building assessment, as opposed to the ini-
tiation fee. The record contains no evidence, however, that
the Union ever explained this distinction to Hopkins.
B. Conclusions
Quoting from Carpenters Local 455 (Building Contrac-
tors), 271 NLRB 1099 (1984), at 1099:
The Board presumes that a union’s attempts to cause an
employee’s discharge are unlawful. . . . A union may
rebut this presumption by showing that such attempts
were made pursuant to a valid union-security clause.
The facial validity of the present union-security clause is
not questioned. But, Section 8(b)(2) of the Act precludes a
union from causing or attempting to cause a discharge pursu-
ant to a union-security clause for a reason other than the em-
ployee’s ‘‘failure to tender the periodic dues and the initi-
ation fees uniformly required as a condition of acquiring or
retaining membership.’’ (Emphasis added.)
From all objective evidence—most notably the Hughes let-
ter Officer served on Hopkins in mid-November and Offi-
cer’s reference to that letter when warning Hopkins on De-
cember 5 that he ‘‘could be terminated’’—the Union treated
the one-time building assessment as a part of Hopkins’ obli-
gation under the union-security clause.10 Such assessments
are not ‘‘periodic’’ within the meaning of Section 8(b)(2). I
conclude, therefore, that the Union violated that section, and
derivatively Section 8(a)(1)(A), by attempting to cause and
causing the Company to discharge Hopkins. Teamsters Local
439 (Shippers Imperial), 281 NLRB 244 (1986); Carpenters
Local 455 (Building Contractors), supra.11
I further conclude that the Union restrained or coerced
Hopkins in violation of Section 8(b)(1)(A) both when Officer
gave Hughes’ letter to him and when Officer told him on
December 5 that he faced discharge unless he complied with
the letter.
I am unable to conclude, however, that the Company vio-
lated Section 8(a)(3) and (1) by complying with the Union’s
discharge demand. Section 8(a)(3) contains a proviso stating
that
[N]o employer shall justify any discrimination against
an employee for nonmembership in a labor organization
. . . (B) if he has reasonable grounds for believing that
membership was denied or terminated for reasons other
than the failure of the employee to tender the periodic
dues and the initiation fees uniformly required as a con-
dition of acquiring or retaining membership.
Thus, extracting from Valley Cabinet & Mfg., 253 NLRB
98, 99 (1980), an employer violates the Act in this regard
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Outstanding motions inconsistent with this recommended Order
are denied. If no exceptions are filed as provided by Sec. 102.46 of
the Board’s Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
14 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
only when it discharges an employee at the request of
the union when it has ‘‘reasonable grounds for believ-
ing’’ that the request was unlawful.
The Union’s discharge request gave no hint of impro-
priety, and Killough confirmed through Hopkins that he had
not made tender before discharging him. Crediting Hopkins
that he told Killough that he had told Officer he had ‘‘the
amount that was needed’’ and asked Officer if ‘‘there was
any kind of way’’ he could pay without going to the union
office, that did not engender ‘‘reasonable grounds for believ-
ing’’ the request improper. See generally R. H. Macy & Co.,
266 NLRB 858, 859, 868–869 (1983); Western Publishing
Co., 263 NLRB 1110, 1113 (1982); Valley Cabinet & Mfg.,
supra at 253 NLRB 99; Conductron Corp., 183 NLRB 419,
427–429 (1970).
CONCLUSIONS OF LAW
1. The Union violated Section 8(b)(2) and (1)(A) of the
Act by attempting to cause and causing the Company to dis-
charge Hopkins on December 6, 1990, for failing to pay an
amount consisting in part of a building assessment.
2. The Union further violated Section 8(b)(1)(A) in mid-
November 1990 and again on December 5, 1990, when it in-
formed Hopkins that he faced discharge unless he paid an
amount consisting in part of a building assessment.
3. The Company did not violate Section 8(a)(3) by com-
plying with the Union’s request to discharge Hopkins.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Carpenters’ Local Union No. 943, United
Brotherhood of Carpenters and Joiners of America, AFL–
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Attempting to cause or causing Oklahoma Fixture
Company to discharge or otherwise discriminate against
Brian K. Hopkins or any other employee for failing to pay
to the Union an amount consisting in part of a building as-
sessment.
(b) Threatening Brian K. Hopkins or any other employee
with discharge for failing to pay to the Union an amount
consisting in part of a building assessment.
(c) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act, except to the extent that such rights may be af-
fected by an agreement requiring membership in a labor or-
ganization as a condition of employment as permitted by
Section 8(a)(3) of the Act.
2. Take this affirmative action necessary to effectuate the
policies of the Act.
(a) Make Brian K. Hopkins whole, with interest, for any
loss of earnings he may have suffered as a result of the dis-
crimination against him.13
(b) Notify Oklahoma Fixture Company in writing, with a
copy to Hopkins, that it has no objection to the employment
of Hopkins and requests that he be reinstated.
(c) Expunge from its records any reference to the unlawful
discharge of Hopkins and notify him in writing that this has
been done and that evidence of said discharge will not form
a basis, in whole or part, for future action against him.
(d) Post at its business office copies of the attached notice,
marked ‘‘Appendix.’’14 Copies of said notice, on forms pro-
vided by the Regional Director for Region 17, after being
signed by the Union’s authorized representative, shall be
posted by the Union immediately upon receipt thereof, and
shall be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
members customarily are posted. The Union shall take rea-
sonable steps to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Forward a sufficient number of signed copies of the
notice to the Regional Director for Region 17 for posting by
Oklahoma Fixture Company, at its plant in Tulsa, Oklahoma,
in places where notices to employees customarily are posted,
if the Company is willing.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the allegation is dis-
missed that the Company, Oklahoma Fixture Company, vio-
lated Section 8(a)(3) and (1) by complying with the Union’s
request that it discharge Hopkins.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT attempt to cause or cause Oklahoma Fixture
Company to discharge or otherwise discriminate against
Brian K. Hopkins or any other employee for failing to pay
to us an amount consisting in part of a building assessment.
WE WILL NOT threaten Brian K. Hopkins or any other em-
ployee with discharge for failing to pay us an amount con-
sisting in part of a building assessment.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act, except to the extent that such rights may
1081OKLAHOMA FIXTURE CO.
be affected by an agreement requiring membership in a labor
organization as a condition of employment as permitted by
Section 8(a)(3) of the Act.
WE WILL make Brian K. Hopkins whole, with interest, for
any loss of earnings he may have suffered as a result of the
discrimination against him.
WE WILL notify Oklahoma Fixture Company in writing,
with a copy to Hopkins, that we have no objection to the
employment of Hopkins and WE WILL request that he be re-
instated.
WE WILL expunge from our records any reference to the
unlawful discharge of Hopkins and WE WILL notify him in
writing that this has been done and that evidence of said dis-
charge will not form a basis, in whole or part, for future ac-
tion against him.
CARPENTERS’ LOCAL UNION NO. 943, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL–CIO