United Steelworkers, Local 4102

National Labor Relations Board - Board Decisions

Sep 20, 1972

199 N.L.R.B. 153 (N.L.R.B. 1972)

UNITED STEELWORKERS, LOCAL 4102 153
United Steelworkers of America, AFL-CIO, and
United Steelworkers of America , Local 4102 and
Capitol Foundry Division , Midland Ross Corpora-
tion . Case 28-CB-654
September 20, 1972
DECISION AND ORDER
Upon a charge filed on November 29, 1971, by
Capitol Foundry Division, Midland Ross Corpora-
tion, herein called the Company, and duly served on
United Steelworkers of America, AFL-CIO, and
United Steelworkers of America, Local 4102, herein
called the Respondents, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 28, issued a complaint on February
22, 1972, against Respondents, alleging that Respon-
dents had engaged in and were engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(b)(3) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Cop-
ies of the charge, complaint, and notice of hearing
before an Administrative Law Judge' were duly
served on the parties to this proceeding. Thereafter,
Respondents filed their answer to the complaint ad-
mitting in part, and denying in part, the allegations in
the complaint. Subsequently, the General Counsel, by
counsel, and counsel for Respondents entered into a
stipulation werein Respondents withdrew their deni-
als of paragraphs 4 and 5 of the complaint.
On April 3, 1972, counsel for the General Coun-
sel filed directly with the Board a motion for summary
judgment. Subsequently, on April 7, 1972, the Board
issued an order transferring the proceeding to the
Board and a notice to show cause why the General
Counsel's motion for summary judgment should not
be granted. Respondents thereafter filed a response to
the General Counsel's motion and a motion for sum-
mary judgment. Briefs in support of the General
Counsel's motion were filed by the Company and by
the General Counsel.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF THE COMPANY
The Company is an Arizona corporation with its
principal office and place of business at Kyrene
Drive, south of Baseline near Phoenix, Arizona, and
has been continuously engaged in the business of a
1 The title of "Trial Examiner " was changed to "Administrative Law
Judge" effective August 19, 1972.
foundry, manufacturing castings and grinding balls.
During the 12-month period preceding the issuance of
the complaint, the Company, in the course and con-
duct of its business operations, purchased and re-
ceived goods or services directly from outside the
State of Arizona valued in excess of $50,000, and
during the same period sold and shipped goods in
interstate commerce directly to States of the United
States other than the State of Arizona.
We find, on the basis of the foregoing, 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, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
II THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, AFL-CIO, and
United Steelworkers of America, Local 4102, are la-
bor organizations within the meaning of Section 2(5)
of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The complaint herein alleges, in material part,
the following: Until on or about August 31, 1971,
Respondents and the Company have been parties to
a series of collective-bargaining agreements covering
wages, hours, and other conditions of employment of
employees of the Company in an appropriate unit and
until on or about January 14, 1972, Respondents and
the Company engaged in negotiations toward a col-
lective-bargaining agreement to replace the agree-
ment having an August 31, 1971, expiration date.
During early July 1971, and continuing until on or
about January 14, 1972, Respondents insisted, and
continue to insist, that before they would sign a con-
tract with the Company the Company would have to
agree to incorporate in the contract the following
clause:
Agency Shop Article
It is hereby agreed between the parties that the
company shall deduct from the monthly pay of
each employee, who shall be free to decline mem-
bership in the union, an amount equal to the
local union dues that his hourly pay shall be
equal to, had he seen fit to belong to the union.
This agency fee shall in no way, obligate such
employee under the Constitution or By-laws of
the union. Despite the employees' freedom and
decision to decline membership in the union
when he is first employed: It will not be effective
to deprive him from active membership in the
union should he later decide to become an actual
199 NLRB No. 20
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of such union; by continuing to pay the
legal union membership fee.
Nothing contained herein shall require the com-
pany to employ, or refuse to employ an individ-
ual by reason of his or her membership, or
non-membership in a union.
On or about November 15, 1971, and continuing
until on or about November 26, 1971, Respondents
engaged in a strike in furtherance of their demands
described above. On or about November 26, 1971,
Respondent's and the Company agreed on all terms
of a contract, except the clause set out above, and
executed a memorandum reading as follows:
This agreement, together with supplements and/
or interpretative grievance settlements, and in-
cluding Insurance and Pensions, constitutes the
entire Agreement with the exception that an
agreement has not been reached between the par-
ties over the issue of the Union's demand for an
Agency Shop clause to be included in this agree-
ment and it is understood that this entire agree-
ment shall not become effective until the Agency
Shop issue is resolved.
On November 27, 1971, Respondents and the
Company entered into a memorandum of under-
standing reading as follows:
The Union (United Steelworkers of America
and its Local No. 4102) and the Company (Capi-
tol Foundry Div., Midland-Ross Corporation)
have reached agreement on all items for a new
Labor Agreement as indicated by the attached
sheet dated November 26, 1971, except for the
union-security clause. The Union continues its
demand for an Agency Shop provision in the
Agreement and refuses to sign the Labor Agree-
ment until such Agency Shop issue is resolved.
The Company contends that such an Agen-
cy Shop provision would violate Arizona's Con-
stitution (Art. XXV) and the "Right to Work"
laws (Secs. 23-1301-7 incl. A.R.S.) and intends
to file a Charge with the N.L.R.B. that the Union
is committing unfair labor practices.
Pending resolution of this issue by the N.L.
R.B. and the Courts, the Union agrees to with-
draw pickets and to encourage employees of the
Company to immediately return to work as
scheduled by the Company on a day to day basis.
On or about January 14, 1972, Respondents and
the Company entered into a memorandum agreement
which reads as follows:
On November 26, 1971, the parties below
reached an agreement for a Collective Bargain-
ing Agreement to remain in effect until Novem-
ber 26, 1972; however, there remained a dispute
on the matter of the Union's request that an
Agency Shop clause be included in the Contract.
This matter is now before the NLRB in case
# 28-CB-654.
The parties agree that when and if the
NLRB and the courts determine that an Agency
Shop provision as proposed by the Union is legal
in Arizona, the Collective Bargaining Agreement
may be reopened for negotiations on the Agency
Shop issue only. However, until such time, the
parties agree that the terms resolved by the Com-
pany and the Union committee on November 26,
1971, and ratified by the membership shall con-
stitute a complete and entire Agreement between
the parties and such Agreement shall remain in
effect until November 26, 1972.
The complaint also states that it is provided in
article XXV of the constitution of the State of Arizona
and in section 23-1302 of the Arizona revised statutes
that:
No person shall be denied the opportunity to
obtain or retain employment because of non-
membership in a labor organization, nor shall the
State or any subdivision thereof, or any corpora-
tion, individual or association of any kind enter
into any agreement, written or oral, which ex-
cludes any person from employment or continua-
tion of employment because of nonmembership
in a labor organization.
None of the above allegations are in dispute, Re-
spondents having admitted them in their answer.
It is the position of the General Counsel, and that
of the company, too, that the clause the Unions insist-
ed be incorporated in the contract is an agency shop
union-security clause, that such is illegal under the
constitution and statutes of Arizona-therefore a
nonmandatory subject of bargaining-and that by re-
fusing to sign the agreed-upon contract without the
clause, by demanding that the clause be included, and
by striking in furtherance of its demand, Respondents
violated Section 8(b)(3) of the Act. The General
Counsel further contends that the above-described
conduct was unlawful in that the insisted-upon clause
would require the Company to deduct the equivalent
of dues from the wages of each employee without
providing that such deduction be made voluntary by
the employee, and in that no provision is made for a
30-day grace period. In support of the General
Counsel's motion for summary judgment, the General
Counsel and the Company rely, inter alia, on an opin-
ion of the attorney general of Arizona holding that an
agency-shop agreement is unlawful under the Arizona
constitution and Arizona statutes,' and a similar rul-
ing of an Arizona trial court.' Conversely, in support
of their motion for summary judgment, the Respon-
2 Opinion 62-2, November 24, 1961. See 49 LRRM 107
3 Arizona Flame Restaurant, Inc v Baldwin, 34 LRRM 2707, 26 L.C. par
68,647
UNITED STEELWORKERS , LOCAL 4102
dents argue that the Arizona constitution and statutes
prohibit only forced "membership" in a labor organi-
zation and do not bar agency-shop agreements. The
supreme court of Arizona has not passed on the issue
of whether an agency-shop agreement is unlawful un-
der that State 's constitution and statutes.
Although for differing reasons, a majority of the
Board is of the opinion that both motions for summa-
ry judgment should be denied.
Chairman Miller and Member Penello are of the
opinion from a reading of the proposed contract
clause in issue that it is not clear whether this clause
would in fact provide for an agency shop; i.e., estab-
lish as a condition of employment a requirement that
nonmembers of Respondents pay the equivalent of
dues. The clause does not state on its face that the
dues deductions would be made without individual
voluntary checkoff authorizations, nor, if such au-
thorizations are contemplated, how, if at all, an
individual's status as an employee would be affected
if he failed to execute such an authorization. While
the heading "agency shop" may imply that the pay-
ment of dues is intended to be made a condition of
employment, such an intent does not appear clearly or
unmistakably from the mere language of, or heading
adopted for, the clause. In view of this ambiguity, they
cannot, on this motion for summary judgment, de-
termine the meaning of the clause with sufficient clar-
ity to pass on its legality under Arizona law, and
would, accordingly, deny both motions for summary
judgment.
Members Fanning and Jenkins are of the opinion
that as there has been no authoritative Arizona court
opinion, i.e., an opinion of the supreme court of Ari-
zona, interpreting the Arizona constitution and stat-
utes and ruling upon the legality of agency-shop
agreements thereunder, they cannot make a deter-
mination as to the validity of such agreements in Ari-
zona, and for this reason would deny both motions.
Accordingly, as a majority of the Board agrees
that the motions for summary judgment should be
denied, the Board issues the following:
ORDER
155
It is hereby ordered that the motions of the
General Counsel and of the Respondents for summa-
ry judgment be, and they hereby are, denied.
MEMBER KENNEDY , dissenting:
I would grant the General Counsel's motion for
summary judgment. In my opinion, there is no genu-
ine issue as to any material fact warranting further
hearing.
It is now well settled that Sections 8(a)(3) and
14(b) of the Act, each of which is written in terms of
"membership," include in them agency-shop provi-
sions which do not require union membership but
only the-payment of proscribed union charges . N.L.R.
B. v. General Motors Corporation, 373 U.S. 734; Retail
Clerks International Association, Local 1625, AFL-
CIO v. Schermerhorn, 373 U.S. 746. The "agency fee"
contract clauses involved in the instant case, in my
judgment, violate Arizona's constitution and its right-
to-work laws, and insistence by Respondents on their
inclusion in the contract, and strike in furtherance
thereof, violates Section 8(b)(3).
An Arizona trial court and that State's attorney
general have ruled that the Arizona constitution and
Arizona statutes outlaw an agency- shop agreement.
Baldwin v. Arizona Flame Restaurant, Inc., modified
and affirmed by the Arizona supreme court 82 Ariz.
385, 313 P.2d 759 (1957). And it is well recognized that
in construing a statute the courts will give great weight
to the opinion thereon of the State's attorney general.
Amalgamated Association of Street Electric Railway
and Motor Coach Employees, Division 1225 v. Las Ve-
gas Stage Line, 319 F.2d 783, 786-787 (C.A. 9, 1963).
The agency-shop clause involved herein having been
construed by an Arizona court and by that State's
executive department as unlawful, and virtually
identical clauses having been declared illegal in other
right-to-work States (Motor Coach Employees, supra),
I fail to see the need for further hearing and would
grant the General Counsel's motion for summary
judgment.