Rocket & Guided Missile Lodge 946, IAM

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.