Rocket & Guided Missile Lodge 946, IAM

National Labor Relations Board - Board Decisions

Nov 16, 1970

186 N.L.R.B. 561 (N.L.R.B. 1970)

ROCKET & GUIDED MISSILE LODGE 946, IAM
Rocket and Guided Missile Lodge 946, International
Association of Machinists and Aerospace Workers,
AFL-CIO (Aerojet-General Corporation) and
Richard S. Johnson . Case 20-CB-2202
November 16, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on March 2, 1970, by Richard
S. Johnson, the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 20, issued a complaint dated
April 27, 1970, against Respondent Rocket and
Guided Missile Lodge 946, International Association
of Machinists and Aerospace Workers, AFL-CIO.
Copies of the charge, complaint, and notice of hearing
were served on Respondent.
The complaint alleged that Respondent had en-
gaged in and was engaging in unfair labor practices
within the meaning of Section 8(b)(2) and (1)(A) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended, in that on or about January 22,
1970, it attempted to cause and caused Aerojet-
General Corporation to discharge the Charging Party,
employee Richard S. Johnson, because he failed to
tender membership dues uniformly required as a
condition of acquiring and retaining membership in
Respondent, although Respondent had not fulfilled
its duty to inform Johnson of such obligation and to
afford him a reasonable opportunity to satisfy said
obligation. On May 8, 1970, Respondent filed an
answer to the complaint.
On June 17, 1970, the parties executed a stipulation
by which they waived a hearing before a Trial
Examiner and the issuance by him of a Trial
Examiner's Decision and Recommended Order and
agreed to submit the case to the Board for findings of
fact, conclusions of law, and Order, based upon a
record consisting of the charge, the complaint, the
answer, the stipulation of facts, and the exhibits. On
June 24, 1970, the Board approved the stipulation and
ordered the proceeding transferred to the Board.
Thereafter, the General Counsel and Respondent
filed briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with this case to a three-
member panel.
Upon the basis of the stipulation, the briefs, and the
entire record in this case, the Board makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
561
Aerojet-General Corporation, herein called Aerojet,
is a California corporation with an office and a place
of business located near Sacramento, California, and
has been engaged in the manufacture and sale of
various aerospace products. During the past year,
Aerojet, in the course and conduct of its business
operations, purchased and received goods and prod-
ucts valued in excess of $50,000 directly from
suppliers located outside the State of California. Also
during the past year, Aerojet, in the course and
conduct of its business operations, sold goods and
products valued in excess of $1 million to the United
States Department of Defense. The operations of
Aerojet described above have had, and continue to
have, a substantial impact on the national defense.
We find that Aerojet is, and at all times material
herein has been, an employer engaged in commerce
and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act and
that it will effectuate the purposes of the Act to assert
jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
Rocket and Guided Missile Lodge 946, Internation-
al Association of Machinists and Aerospace Workers,
AFL-CIO , is, and at all times material herein has
been , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The parties' stipulation shows these facts:
For several years, Respondent and Aerojet have
been parties to, and have given effect to, collective-
bargaining agreements. Their current agreement,
effective from August 5, 1968, to August 8, 1971,
contains a union security provision requiring employ-
ees covered by the agreement to become and remain
members.
Johnson had been employed by Aerojet from 1956
to January 23, 1970, the date when Aerojet discharged
him at Respondent's request.
Johnson had paid membership dues to Respondent
from 1957 until August 1962 under a checkoff
provision in the collective-bargaining agreement. On
August 17, 1962, Johnson and some other employees
withdrew their checkoff authorizations because a
question concerning representation had been raised
before the Board. In November 1962 Johnson paid
dues to the Union for the months of August,
September, and October, 1962.
Respondent notified Johnson in January 1963 that,
186 NLRB No. 77
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless Johnson paid dues for November and Decem-
ber 1962 and January 1963, his union membership
would lapse. Johnson did not pay the dues. On
February 20, 1963, Respondent recorded Johnson's
membership as "lapsed," and it placed his records in
its inactive file.
The representation dispute was resolved later in
1963. Thereafter notices posted in the plant stated
that employees in the unit who were not members in
good standing in the Union were to join the Union no
later than October 3, 1963.
Johnson did not rejoin the Union and did not pay
dues.
In January 1970, Respondent discovered that
Johnson had not been paying dues by checkoff or
otherwise. The failure to pay was discovered at this
late date when Respondent increased its dues by 10
cents and Aerojet was recomputing the new amounts
due in payroll checkoffs. Aerojet's payroll computers
did not show a correct balance. Aerojet learned from
Respondent that the reason for the imbalance was
that 10 of the approximately 1,200 employees were
paying their dues to Respondent directly. A subse-
quent check revealed that Johnson had not paid
directly or by checkoff.
Respondent did not ask Johnson to pay dues after
January 1963. In a letter to Aerojet, dated January 22,
1970, its business representative, John R. Graham,
wrote: "The Union demands the immediate termina-
tion of employment for employee, Richard S. Johnson
..." because he has failed to pay dues as required by
the collective-bargaining agreement. Aerojet dis-
charged Johnson the next day.
The General Counsel in his complaint alleged that
Respondent had violated the Act by causing Aerojet
to discharge Johnson for failure to pay dues although
Respondent had not notified Johnson of his dues
obligation as it was its duty to do. Respondent's
answer denied that it had a duty to inform Johnson of
his dues obligation. It further contends in its brief that
Johnson was notified of his dues delinquency and that
there is no violation because there is no evidence of
union hostility toward Johnson.
The principal issue in this case is whether Respon-
dent had a duty to inform Johnson of his contract
obligations. We hold that it did.
Both the Board and the courts have held that a
union seeking to enforce a union security provision
against an employee has a "fiduciary" duty to "deal
fairly" with the employee affected. "At a minimum
this duty requires that the union inform the employee
' N.L.R.B. v. Hotel, Motel and Club Employees' Union, Local 568, 320
F.2d 254, 258 (C.A. 3), enfd. 136 NLRB 888. Accord: N.L.R.B. v. Local
182, International Brotherhood of Teamsters, 401 F.2d 509 (C.A. 2), cert.
denied 394 U.S. 213, enfg. 156 NLRB 335, amended 169 NLRB No. 164;
International Union of Electrical Radio and Machine Workers v. N. L.R.B.,
307 F.2d 679, 683 (C.A.D.C.), cert. denied 371 U.S. 936, enfg. 129 NLRB
of his obligations in order that the employee may take
whatever action is necessary to protect his job
tenure." 1
The facts clearly disclose that this "minimum"
obligation was not met in this case. Employee
Johnson had worked for the employer more than 13
years. He had worked continuously after November
1962, when he ceased paying dues. He was not
notified after that time that if he failed to join
Respondent and make the required payments of dues,
he would lose his job. More than 7 years later, without
any advance notice or warning, he was discharged on
Respondent's demand.
The Union's conduct here did not satisfy its duty of
fair dealing. Johnson had no personal notice of any
kind after January 1963 that membership was
required for continued employment. It would appear
that he was not advised that he would lose his job for
nonmembership. And it would appear that he had no
notice of the union security provision of the current
collective-bargaining agreement . There is nothing in
the parties' stipulation of facts to support Respon-
dent's assertion that Johnson was notified on two
occasions after January 1963 that he was to join and
pay dues. The only notice after that mentioned in the
stipulation was a general notice posted in the plant
stating that members who were not in good standing
were to join by October 1963.
When Johnson continued to work for years after
that without any attempt by Respondent to enforce
against him a union security provision, he could well
have assumed that Respondent was not interested in
him as a member and that he could work freely for the
employer as a nonmember. We hold that the Union
was required "at a minimum" to tell Johnson that
under the new contract it would no longer counte-
nance his nonmembership and failure to pay dues.
The Union's failure to meet this duty is not excused
by its assertion that it had no hostile intent.2
On the basis of the foregoing, we find that
Respondent Union failed to fulfill its fiduciary duty to
notify Johnson of his obligation to join the Union and
that it therefore unlawfully caused his discharge in
violation of Section 8(b)(2) and (1)(A) of the Act.
IV. THE REMEDY
Having found that by the aforementioned conduct
Respondent Union has violated Section 8(b)(2) and
(1)(A) of the Act, we shall order it to cease and desist
from engaging in such conduct in the future and
1379, and 130 NLRB 1286; Teamsters Local Union No. 122, IBT (August A.
Busch & Co. of Mass., Inc.), 173 NLRB No. 194; Granite City Steel
Company, 169 NLRB No. 144.
2 N.L.R.B. v. Local 182, IBT, supra, 510; Granite City Steel Company,
169 NLRB No. 144.
ROCKET & GUIDED MISSILE LODGE 946, IAM 563
affirmatively to take such action as will dissipate the
effects of its unfair labor practices.
We shall order Respondent Union to notify Aerojet,
in writing, with a copy to Richard S. Johnson, that it
withdraws its objections to Aerojet's employment of
Johnson and requests it to offer him reinstatement
and the restoration of his seniority as it existed on
January 23, 1970, the date of his discharge.
We shall order Respondent to make Johnson whole
for any loss of pay suffered by reason of the
discrimination against him, by payment to him of a
sure of money equal to the amount he would normally
have earned as wages from the date of his discharge to
the date set forth hereafter, less his net earnings
during this period. The loss of earnings shall be
computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289, and with interest on
the backpay due in accordance with Board policy set
out in Isis Plumbing & Heating Co., 138 NLRB 716.
Respondent's backpay liability shall terminate 5 days
after it notifies Aerojet that it has no objection to
Johnson's reinstatement, as provided above.
CONCLUSIONS OF LAW
1. Aerojet-General Corporation is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Rocket and Guided Missile Lodge 946, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By causing Aerojet-General Corporation to
discharge Richard S. Johnson for reasons other than
his failure to tender periodic dues and initiation fees,
Respondent Union violated Section 8(b)(2) and
(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Rocket and Guided Missile Lodge 946, International
Association of Machinists and Aerospace Workers,
AFL-CIO, its officers , agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Aerojet -General
Corporation to discriminate against any of its
employees in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized by Section 8(a)(3) of the
Act.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act:
(a) Make whole Richard S. Johnson for any loss of
pay he may have suffered as a result of the
discrimination against him in the manner set forth in
the section above entitled, "The Remedy."
(b) Notify Richard S. Johnson and Aerojet-General
Corporation, in writing, that it withdraws its objec-
tions to Johnson's employment and requests the
Employer to offer Johnson reinstatement and the
restoration of his full seniority and other rights and
privileges as they existed on January 23, 1970, the date
of Johnson's discharge.
(c) Notify the above-named employee if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Post at its business office copies of the attached
notice marked "Appendix." 3 Copies of said notice, on
forms provided by the Regional Director for Region
20, after being duly signed by the Union's representa-
tive, shall be posted by the Union immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Forward signed copies of the Appendix to the
Regional Director for Region 20, for posting by the
Employer at its place of business near Sacramento,
California, in places where notices to employees are
customarily posted, if the Employer is willing to do so.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
3 In the event that the Board 's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Aerojet-
General Corporation to discriminate against
Richard S. Johnson or any other employee in
violation of Section 8(a)(3) of the Act.
WE WILL notify Richard S. Johnson and
Aerojet-General Corporation, in writing, that we
withdraw our objections to Johnson's employment
and request Johnson's reinstatement and the
restoration of his full seniority and other rights and
privileges as they existed on January 23, 1970, the
date of his discharge.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
WE WILL make Richard S. Johnson whole for
any loss of pay suffered because of the discrimina-
tion against him.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor
organization as a condition of employment.
ROCKET AND GUIDED
MISSILE LODGE 946,
INTERNATIONAL
ASSOCIATION OF
MACHINISTS AND
AEROSPACE WORKERS,
AFL-CIO
(Labor, Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047, San Francisco, California 94102,
Telephone 556-3197.