Western Block Co.

National Labor Relations Board - Board Decisions

May 6, 1977

229 N.L.R.B. 482 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Block Company, A Subsidiary of American
Hoist & Derrick Company and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, Amalga-
mated Local 686. Case 3-CA-6716
May 6, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge duly filed on August 30, 1976, by
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
Amalgamated Local 686, hereinafter called the
Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 3, issued a complaint and notice of hearing
on September 28, 1976, against Western Block
Company, a Subsidiary of American Hoist & Derrick
Company, hereinafter called Respondent. The com-
plaint alleges that Respondent has engaged in, and is
engaging in, unfair labor practices within the
meaning of Section 8(a)(l) and (5) of the National
Labor Relations Act, as amended, by refusing to
bargain collectively with the Union as the exclusive
bargaining representative of its employees. On
October 14, 1976, Respondent filed an answer
denying the commission of any unfair labor practic-
es.
On January 4 and 6, 1977, the parties executed a
stipulation of facts, by which they waived a hearing
before an Administrative Law Judge and the is-
suance of an Administrative Law Judge's Decision
and recommended Order, and agreed to submit the
case to the National Labor Relations Board for
findings of fact, conclusions of law, and an Order
based upon a record consisting of the charge, the
complaint and notice of hearing, answer to the
complaint, and the stipulation of facts and exhibits
attached thereto.
On February 1, 1977, the Board approved the
stipulation of the parties and ordered the proceeding
transferred to the Board, granting permission for the
filing of briefs. Thereafter, both the Respondent and
the General Counsel filed briefs in support of their
respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the basis of the stipulation, the briefs, and
the entire record in this proceeding, the Board makes
the following:
229 NLRB No. 78
FINDINGS OF FACT
I. JURISDICTION
Respondent Western Block Company, a Subsidiary
of American Hoist & Derrick Company, is, and at all
times material herein has been, a corporation duly
organized under, and existing by virtue of, the laws
of the State of Delaware. Respondent has maintained
its principal place of business in Lockport, New
York, and is engaged in the manufacture, sale, and
distribution of tackle blocks and related products.
During the past 12 months, a representative period,
Respondent sold and shipped products valued in
excess of $50,000 from its facility in Lockport, New
York, directly to points outside the State of New
York.
Respondent admitted, and we find, that Western
Block Company, a Subsidiary of American Hoist &
Derrick Company, 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.
1. THE LABOR ORGANIZATION INVOLVED
We find that International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers
of America, Amalgamated Local 686, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The facts stipulated to by the parties indicate that
the Union was certified by the Board on January 24,
1945, as the exclusive bargaining representative of
Respondent's production and maintenance employ-
ees. At all times material herein, Respondent and the
Union have been parties to a collective-bargaining
agreement, which is effective from July 16, 1975, to
July 21, 1978. The contract clauses in question are in
pertinent part as follows:
Article I
Section 5(d). The Company will deduct all Union
dues from the pay of each member of the Union
covered by this agreement. ....
Section 5(e). All deductions shall be made
monthly during the second pay period of each
month.
Section 5(g). The sums deducted shall be remitted
to the Secretary-Treasurer of Local 686 UAW not
482
WESTERN BLOCK COMPANY
later than the tenth day of the following month in
which such deductions are made.
On May 19, 1976,1 Arbitrator Robert E. Stevens
issued his opinion and award, sustaining the griev-
ances of John Logan, president of Unit 7, Local 686,
the bargaining unit at Respondent's facility. The
arbitrator found that Logan's absences on 2 days for
union business were excused absences authorized by
article V, section 4(a), of the contract, which allows
leaves of absence for any employee elected to union
office or as a delegate to any labor activity.
By letter dated June 23, Respondent notified the
Union that "[i]t is the policy of the Western Block
Company to make a nominal charge when [the
Union] requirels] the services of our employees
during working hours and off the Company premis-
es." Hourly and daily amounts to be charged for
such services were set forth in the letter. Enclosed
with the letter was an invoice billing the Union for
the services of John Logan. By invoice dated July 23,
Respondent charged the Union for the services of
Robert Prentice and Gary Moulden. On July 26,
Respondent notified the Union that its account was
past due, and further stated that if "payment is not
forth coming, by return mail, we will debit your
account by the above amount."
On August 10, Respondent sent the Union a check
for the amount of dues deducted from the employees'
wages in July. However, Respondent did not remit to
the Union the full amount of dues collected, but
instead deducted from the dues collected the amount
Respondent had previously charged the Union for
the services of Logan. In late August, Respondent
informed the Union that it owed Respondent for the
services of Prentice and Moulden. By letter dated
August 25, the Union notified Respondent that "the
withholding of dues monies is in violation of [the]
contract." In turn, on August 30, Respondent
informed the Union that it had no choice but to debit
the Union's dues collection account when the Union
did not pay Respondent's invoices. Respondent
further stated that such actions were not unlawful on
its part, but that the Union's failure to pay Respon-
dent's invoice was unlawful.
In succeeding months, Respondent adhered to its
policy of charging the Union for the services of
employees on union business. Respondent continued
to deduct from the Union's dues-checkoff collection
account amounts charged to the Union for employ-
ees' services. The parties stipulated that Respondent
has continued such actions pending determination
by the Board.
i All dates are in 1976 unless otherwise indicated.
B. Contentions of the Parties
The General Counsel contends that Respondent
has violated Section 8(aX5) of the Act by promulgat-
ing and unilaterally instituting a policy of charging
the Union for the services of employees engaged in
union business and by offsetting the amounts
charged for such services against the Union's dues-
checkoff account. The General Counsel argues that
an employer under a duty to bargain with a union
cannot alter established employment conditions
without so bargaining. According to the General
Counsel, Respondent not only changed an existing
condition of employment without consultation with
the Union, but also failed and refused to honor the
parties' existing collective-bargaining agreement by
not remitting to the Union the full amount of dues
checked off to the Union pursuant to that agreement.
Respondent initially contends that the Board
should decline to assert jurisdiction in this proceed-
ing, claiming that the policies of the Act, as set out in
Section 7 thereof, were not intended to apply to the
facts of this case. In support of this argument, as well
as its argument that it has not violated the Act,
Respondent claims that its employees have not been
denied their Section 7 rights. Specifically addressing
the charge that it has violated Section 8(a)(5) of the
Act, Respondent contends that it has bargained with
the Union regarding the checkoff of dues and that
such checkoff is continuing. Respondent claims that
the issue of the setoff of charges against union dues is
a private controversy between the parties over which
the Board does not have jurisdiction.
C. Analysis and Conclusions
Section 8(d) of the Act provides that parties shall
bargain in good faith with respect to wages, hours,
and other terms and conditions of employment.
Related to this duty to bargain is the "correlative
obligation of an employer not to unilaterally change
employment conditions without first giving the
employees' collective-bargaining representative prior
notice and adequate opportunity to negotiate."2
Here, Respondent, without prior notice to or
consultation with the Union, changed an existing
condition of employment by unilaterally promulgat-
ing a policy of charging the Union for the services of
employees engaged in union business. Additionally,
by failing and refusing to remit to the Union the full
amount of dues withheld from the unit employees'
wages, as required by the parties' collective-bargain-
ing agreement, Respondent has further unilaterally
2 Ladish Co., 219 NLRB 354. 356 (1975).
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified the existing conditions of employment as
set forth in said agreement.3 By such actions, which
constitute a rejection of the principles of collective
bargaining and an infringement on the Section 7
rights of its employees, Respondent has violated
Section 8(a)(l) and (5) of the Act.4
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The acts of Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that Respondent cease and desist there-
from and take certain affirmative action designed to
effectuate the policies of the Act.
Respondent has, without complying with the
provisions of Section 8(d) of the Act, unilaterally
modified the unit employees' existing conditions of
employment by instituting a policy of charging the
Union for the service of employees engaged in union
business and by failing to remit to the Union, as
required by the parties' collective-bargaining agree-
ment, the full amount of dues which it deducted from
the employees' wages. We shall therefore order that
Respondent recognize and deal with the Union as
the exclusive bargaining representative of its employ-
ees in the appropriate unit by honoring in all its
terms the agreement executed by the parties on July
16, 1975. In honoring said agreement, Respondent
shall continue to deduct dues from the unit employ-
ees' wages and remit the full amount thereof to the
Union as required by the agreement. We shall further
order that Respondent remit to the Union moneys
withheld from the Union's dues-checkoff collection
account, together with interest thereon at 6 percent
per annum.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent Western Block Company, a Sub-
sidiary of American Hoist & Derrick Company, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, Amalgamated Local 686, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All hourly production and maintenance em-
ployees of Respondent, excluding office clerical
employees and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since January 24, 1945, the above-named labor
organization has been, and now is, the certified and
exclusive representative of all the employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By unilaterally modifying the unit employees'
existing conditions of employment by promulgating
a policy of charging the Union for the services of
employees engaged in union business and by failing
to remit to the Union, as required by the parties'
collective-bargaining agreement, the full amount of
dues deducted from the employees' wages, Respon-
dent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby has engaged in, and
is engaging in, unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
7. 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 the Respondent,
Western Block Company, a Subsidiary of American
Hoist & Derrick Company, Lockport, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Instituting, maintaining, and enforcing its
policy of charging the Union for the services of
employees engaged in union business and offsetting
the amounts so charged against the Union's dues-
checkoff collection account without giving the Union
4 Cf. Shen-Mar Food Products, Inc., 221 NLRB 1329(1976).
484
3 Cf. Cavaler Spring Comnpany, 193 NLRB 829 (1971).
WESTERN BLOCK COMPANY
adequate opportunity to negotiate about such mat-
ters.
(b) Refusing to carry out the terms of the
collective-bargaining agreement executed by Re-
spondent and the Union on July 16, 1975, by failing
to remit to the Union the full amount of dues
deducted from the unit employees' wages, as re-
quired by said agreement. The Union is the exclusive
bargaining representative of the employees in the
following appropriate unit:
All hourly production and maintenance employ-
ees employed by Respondent at its Lockport,
New York, facility, excluding office clerical
employees and supervisors as defined in the Act.
(c) In any like or related manner failing or refusing
to bargain collectively with the representative of its
employees and thereby interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Comply with the terms of the collective-bar-
gaining agreement executed by Respondent and the
Union on July 16, 1975.
(b) As required by said agreement, deduct moneys
from the unit employees' wages for dues and remit
the full amount thereof to the Union.
(c) Remit to the Union moneys withheld from the
dues-checkoff collection account, together with
interest thereon at 6 percent per annum.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all records necessary to analyze the amount due
under the terms of this Order.
(e) Post at its Lockport, New York, facility, copies
of the attached notice marked "Appendix." s Copies
of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by Respondent for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
, In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT institute, maintain, or enforce a
policy of charging the Union for the services of
employees engaged in union business and offset-
ting the amounts so charged against the Union's
dues-checkoff collection account, without giving
the Union adequate opportunity to negotiate
about such matters.
WE WILL NOT refuse to carry out the terms of
the collective-bargaining agreement executed by
Western Block Company, a Subsidiary of Ameri-
can Hoist & Derrick Company, and the Union on
July 16, 1975, by failing to remit to the Union the
full amount of dues deducted from the unit
employees' wages. The Union is the exclusive
bargaining representative of the employees in the
following appropriate unit:
All hourly production and maintenance
employees employed by Western Block
Company, a Subsidiary of American Hoist
& Derrick Company, at its Lockport, New
York, facility, excluding office clerical em-
ployees and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner
refuse to bargain collectively with the representa-
tive of our employees and thereby interfere with,
restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
WE WILL comply with the terms of the
collective-bargaining agreement executed on July
16, 1975.
WE WILL, as required by said agreement,
deduct moneys from the unit employees' wages
for dues and remit the full amount thereof to the
Union.
WE WILL remit to the Union moneys withheld
from the dues-checkoff collection account, to-
gether with interest thereon at 6 percent per
annum.
WESTERN BLOCK
COMPANY, A SUBSIDIARY
OF AMERICAN HOIST &
DERRICK COMPANY
485