Metal Workers' Alliance, Inc.

METAL WORKERS' ALLIANCE, INC. 815 Metal Workers' Alliance, Incorporated (TRW Metals Division, TRW, Inc.) and Robert C. Flick. Case 8-CB-1073 July 1, 1968 DECISION AND ORDER On August 18, 1967, Trial Examiner Gordon J. Myatt issued his Decision in the above-entitled proceeding, finding that Respondent had not en- gaged in certain alleged unfair labor practices and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief; the Respondent filed an answering brief to the exceptions. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer , except as modified below. The complaint alleged that Respondent Union violated Section 8(b)(1)(A) and (2) of the Na- tional Labor Relations Act, as amended, by (1) requiring employees who had left bargaining unit jobs to accept supervisory positions or jobs outside the bargaining unit to pay a reinstatement fee upon their return to jobs in the bargaining unit, and (2) threatening to have employees discharged if they refused to sign checkoff authorization cards for the payment of reinstatement fees to the Respondent Union. The Respondent has been the collective-bargain- ing representative of the Employer's production and maintenance employees since 1959. The cur- rent collective-bargaining contract, which became effective on May 20, 1966, and which is applicable to the period material herein, contains an admit- tedly valid union-security provision requiring as a condition of employment that all employees in the bargaining unit become and remain members of the Respondent. The current contract, like the earlier one which was in effect from 1963 to 1966, also contains provisions for the return to the bargaining unit of employees who have been transferred to su- pervisory or other salaried positions with the Em- ployer outside the unit. The 1963-66 contract pro- vided for the retention and continued accumulation of unit seniority for such employees. The current contract provides only for the retention of previ- ously acquired unit seniority. The initiation fees, reinstatement fees, and dues that are required for the acquisition and retention of membership in the Respondent are fixed by the Respondent's constitution and bylaws. Dues are $2.50 per month. Initiation fees for employees first entering the unit are $5. The constitution and bylaws provide, however, that any member who voluntarily leaves the bargaining unit to accept em- ployment with the Employer outside the bargaining unit,' and who thereafter reenters the bargaining unit, must pay a reinstatement fee of either $50, $100, or $150, depending on the time he spent out- side the bargaining unit.2 The record shows that there have been a number of employees who have at one time or another transferred from bargaining unit jobs to supervisory or other salaried positions outside the unit and who later returned to bargaining unit jobs. Following their return they were required to pay reinstate- ment fees in accordance with the schedule set forth in the Respondent's constitution and bylaws. With respect to two of these employees, Monte and Flick, both of whom had been transferred out of the bargaining unit to become supervisors, the record shows that after their return to the bargain- ing unit they were told by the Respondent's agents that the Respondent would request the Employer to discharge them if they did not sign checkoff cards authorizing, inter alia, the deduction of their rein- statement fees.' On the foregoing facts, the Trial Examiner found, and we agree, that the requirement in the Respon- dent's constitution and bylaws for the payment of the aforesaid fees by employees reentering the bar- gaining unit from salaried positions, and the en- forcement of that fee requirement through the union-security provisions of the collective-bargain- ing agreement, were not, as alleged in the com- plaint, violative of Section 8(b)(1)(A) and (2) of the Act. I The reinstatement fees in question, as the com- plaint concedes, were imposed by the Respondent "as a condition precedent to becoming a member of Respondent." The proviso to Section ' Under the Respondent's constitution and bylaws an employee's mem- bership in Respondent is terminated when he accepts a salaried position 1 Reinstatement fees are $50 for 1 year or less employment outside the bargaining unit, $ 100 for I to 2 years , and $150 for 2 years or more 3 The Respondent 's constitution and bylaws permit the payment of rein- statement fees by checkoff over a 3-month period. 172 NLRB No. 34 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b)(1)(A) of the Act safeguards to a union the right "to prescribe its own rules with respect to the acquisition or retention of membership," and under the statute the fees it imposes are subject to the scrutiny of the Board only in limited situations. Thus, under Section 8(b)(5), a union is prohibited from requiring of employees covered by a union- security agreement "the payment, as a condition precedent to becoming a member ... of a fee in an amount which the Board finds excessive or dis- criminatory under all the circumstances." And under Section 8(a)(3) and 8(b)(2), where dis- crimination or attempted discrimination against an employee is sought to be justified under a valid union-security agreement because of nonpayment of "periodic dues" or "initiation fees," the Board may inquire into whether the dues or fees involved were indeed of such a character, and, if so, whether they were "uniformly required as a condition of acquiring or retaining membership." It has long been settled that reinstatement fees charged by a union as a condition to employees acquiring or regaining union membership fall within the statuto- ry intendment of "initiation fees." And the uniformity requirement does not prohibit unions from charging different fees to different classifica- tions of employees entering or reentering the Union, provided that there is a reasonable and not unlawful basis for the classifications.4 In the instant case, the complaint does not allege an 8(b)(5) violation, and the question of whether the reinstatement fees were excessive in amount is therefore not before us. Nor does the record in this case justify a finding that the reinstatement fees at issue impinged upon the exercise by employees of statutorily protected rights. Contrary to the sug- gestion in the dissent, no inference that the rein- statement fees were discriminatory under the statute may be drawn merely from the difference in the amounts charged former members reentering the bargaining unit from salaried positions with the Employer and the amount charged former members who left the Employer's employ altogether and then returned. Unlike the situation in cases where disparate fees have been found discriminatory 5 it cannot be said in this case that the higher fee im- posed on the particular class of employees here in- volved was motivated by a purpose to penalize them for not having obtained or retained member- ship and paid dues during an earlier period when they were not legally obligated to do so. The fact that employees serving the Employer in supervisory or salaried positions were disqualified under the Respondent's own constitution and bylaws from retaining their membership appears reason enough to reject an inference of such a punitive purpose. We are thus left with the question of whether the different fees for admission to membership charged, on the one hand, to employees returning to the unit from salaried positions with the Em- ployer, and, on the other hand to previously laid-off or newly hired employees was based on a reasona- ble classification. The Respondent justifies the divi- sion on the grounds that employees in the former classification upon reentry into the unit become en- titled, not only to the retention of prior accumu- lated seniority, but to the immediate enjoyment of other valuable contract rights and benefits, such as sharing in unit overtime, eligibility for paid holidays and vacations, shift preferences, and insurance coverage, whereas new hires must successfully ful- fill certain probationary requirements before they can become eligible for such benefits. The Trial Ex- aminer found that these considerations provide a reasonable and nondiscriminatory basis for distinc- tion, and we agree. We therefore conclude, as did the Trial Examiner, that the reinstatement fees here in issue constituted " initiation fees uniformly required as a condition of acquiring ... member- ship," within the meaning of Section 8(a)(3) and 8(b)(2) of the Act. It follows that the Respondent was privileged pursuant to the terms of its union- security agreement with the Employer to require payment of such fees, and, if necessary, to enforce such payment through the sanctions of discharge or threat of discharge .6 4 See, e g , Food Machinery and Chemical Corporation , 99 NLRB 1430, and cases cited in fn 3 The constitution and bylaws of the union in the cited case provided for various classifications to which different initiation or reinstatement fees were applicable Thus, no fee was required of a recently discharged veteran , only a nominal reinstatement fee for a former member holding a withdrawal card, a $ 60 reinstatement fee for a former member not holding such a withdrawal card , and a $30 initiation fee for a new member The Board upheld the reasonableness of these classifications The assertion in the dissenting opinion in the instant case, that Food Machinery " makes plain [that ] it is not a reasonable classification to pro- vide for a reinstatement only for employees who were employed by the em- ployer in non-unit jobs," is simply not supported by any reading of that case s See, e g , Ferro Stamping and Manufacturing Co , 93 NLRB 1459, Local 153, Automobile Workers and Richard Stacker, et al , 99 NLRB 1419, Kaiser Steel Corporation , 125 NLRB 1039 Although we hold below that the threats of discharge directed against employees Monte and Flick were unlawful , we do so on an entirely separate and unrelated basis Unlike our dissenting colleague, we find in- sufficient evidence in the record to support either a finding that the discharges were "not threatened pursuant to the union security clause" or a finding that the threats were aimed at coercing payment prior to the 60-day grace period provided for in that clause As the record shows, the em- ployees were simply told that if they did not sign checkoff authorization cards the Employer would be notified and the employees discharged We are not prepared to infer on the strength alone of the statements made to Monte and Flick that the threats to them were made on a basis other than the sanction of the union-security clause , or that the checkoff authoriza- tions, if signed , would have required the payment of initiation fees and dues before the expiration of the grace period METAL WORKERS' ALLIANCE, INC. Our dissenting colleague questions our view of the case as involving a lawful reinstatement fee im- posed as a condition of membership and enforced through a valid union-security agreement. He would have us instead, as nearly as we can make out, view the reinstatement fees not as a member- ship requirement "ancillary to the valid union security provision of the contract," but as unrelated payments unilaterally exacted by the Respondent from salaried employees reentering the unit as a condition to their regaining previously accumulated unit seniority. The difficulty with that approach is that it is neither consistent with the complaint's theory of the case nor with the facts as they appear. The complaint, although attacking the reinstate- ment fees as discriminatory, nevertheless recog- nizes, indeed it affirmatively avers, that the fees were imposed as an obligation of membership en- forceable through the union-security provisions of the contract.? There is nothing in this record to in- dicate that seniority rights as such were conditioned upon payment of reinstatement fees, either by the terms of the contract or by unilateral fiat of the Respondent. Upon reentering the unit, the em- ployees became unqualifiedly entitled to regain their accumulated seniority and to retain such seniority as long as they remained unit employees. Of course, they also became obliged, like other unit employees, to comply with the union membership requirements of the lawful union-security clause of the contract if they were to continue as employees. But simply because seniority was an incident of em- ployment, it cannot be said in any true sense that this converted the reinstatement fees required for union membership into an unlawful condition for the retention of seniority, as the dissent appears to suggest.8 For the reasons stated, we shall dismiss all the unfair labor practice allegations of the complaint, except the allegation specifically relating to the threat to discharge employees for failure to sign checkoff authorization cards, an allegation on which the Trial Examiner did not pass and to the consideration of which we now turn. ' Without such an averment there obviously could be no possible basis for the alleged 8(b)(2) violation , since it is not alleged in this case that the Respondent ever communicated to the Employer a request to take action against any employee for nonpayment of his reinstatement fee Although our dissenting colleague would reverse the Trial Examiner and find an 8(b)(2) violation, he does not explain the theory on which he would spell out such a violation within the terms of that section ' Krambo Food Stores, Inc, 106 NLRB 870, 877, relied on in the dissent, is clearly inapposite to the facts of this case That case merely stands for the proposition that a union-security provision cannot be enforced by taking II 817 As found above , employees Monte and Flick, both of whom had previously been transferred out of the bargaining unit to become supervisors, were told by the Respondent 's agents after their return to the bargaining unit that the Respondent would request the Employer to discharge them if they did not sign checkoff authorization cards . The record shows that the cards they were asked to sign would have authorized the Employer to check off sums for the payment of "membership dues , including initia- tion or reinstatement fees and monthly dues." The Board has held that employees, although subject to the provisions of a lawful union -security agreement, have a right under Section 7 of the Act to refuse to sign checkoff authorization cards such as are here involved . American Screw Company , 122 NLRB 485. Accordingly , we find that, although the Respondent did not engage in an unfair labor prac- tice by requiring payment of reinstatement fees from employees Monte and Flick, it did violate Sec- tion 8(b)(1)(A) by threatening their discharge if they refused to sign the checkoff cards.9 THE REMEDY Having found that the Respondent has engaged in unlawful conduct in violation of Section 8(b)(1)(A) of the Act, we shall order that it cease and desist therefrom , and take certain affirmative action designed to effectuate the policies of the Act. ADDITIONAL CONCLUSION OF LAW Upon the foregoing findings of fact and the entire record in this case , we hereby make the following additional conclusion of law: By threatening to have employees discharged if they refused to sign a checkoff authorization card, the Union restrained and coerced employees in the exercise of their Section 7 rights, thereby violating Section 8(b)(1)(A) of the Act. adverse action against an employee, short of discharge In this case there is no evidence that the Respondent ever threatened to have employee seniority rights removed , or invoke other sanctions , short of discharge, if reinstatement fees were not paid Although the complaint alleged only that the employees were threatened with discharge if they failed to execute a written checkoff authorization for "reinstatement fees," the evidence shows that the threats related to checkoff cards were made as in the form set out above , and the issue was fully litigated by all parties on that basis 354-126 O-LT - 73 - pt. 1 - 53 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, Metal Workers' Alliance, Incorporated, Al- liance, Ohio, its officers, agents, and representa- tives, shall: 1. Cease and desist from restraining or coercing employees of TRW Metals Division, TRW, Inc., in the exercise of the rights guaranteed by Section 7 of the Act by threatening to have them discharged if they refuse to sign checkoff authorization cards. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at the union office or place of business and at all locations where notices to union mem- bers are customarily posted, copies of the notice at- tached hereto marked "Appendix."10 Employer, TRW Metals Division, TRW, Inc., being willing, copies of said notice shall also be posted at its place of business in locations where notices to employees in the category of Metal Workers' Alliance, Inc., members are customarily posted. Copies of said notice on forms provided by the Regional Office for Region 8, shall, after being duly signed by represent- atives of the Respondent Union, be posted im- mediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to union members are customarily dis- played. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. Sign and forthwith return sufficient copies of said notice to the Regional Director aforemen- tioned for posting by TRW Metals Division, TRW, Inc., the Employer being willing, at locations afore- mentioned. (b) Notify the Regional Director for Region 8, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER ZAGORIA, dissenting in part: I agree with my colleagues' finding that the Respondent Union violated 8(b)(1)(A) by threatening to cause the discharge of employees returning to unit positions if they refused to sign 10 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " 11 The contractual provision in question , adopted June 30, 1966, amended an earlier provision which permitted accumulation of unit seniority even while in a supervisory position It applied prospectively, so checkoff authorization cards for the payment of reinstatement fees to the Respondent Union. I dis- sent from their dismissal of the complaint's allega- tion that Respondent Union violated 8(b)(1)(A) and (2) by conditioning supervisors' return to the bargaining unit on payment of "reinstatement fees" to the Union, and threatening employees who had returned to the unit from supervisory positions with discharge for failing to pay those fees. The facts show that the Union had a contract with the Employer providing, in pertinent part, that employees promoted to supervisory positions could return to the bargaining unit, with all seniority ac- crued by them in their earlier employee status." Despite this contractual provision, the Union refused to permit a number of employees to return to unit jobs unless they paid the Union a reinstate- ment fee. Each employee did pay the fee under threat of losing his job if he did not do so. The rein- statement fee required by the Union was not in ac- cordance with any contractual provision,' but was based on the Union's constitution and bylaws, which provided that employees would be accorded the rights given to them by the collective-bargain- ing agreement only if they paid a reinstatement fee to the Union, amounting to $50 for employees em- ployed as a supervisor for less than 1 year, $100 for employees with more than I but less than 2 years' employment outside the bargaining unit, and $150 for more than 2 years' employment outside the bar- gaining unit.12 Four employees who had been transferred to su- pervisory positions outside the bargaining unit were transferred back to the unit on October 26.13 All four were told by union representatives that they had to pay the reinstatement fee required by the bylaws or be discharged. Each of them paid the requisite fee, which amounted to $150 each for Flick and Monte, $50 for Conser, who left the unit only 40 days earlier and paid his September and October union dues, and $100 for Paisley. In each case these payments were demanded shortly after the employee's return to the unit. I would find that the Respondent Union violated 8(b)(2) by its reinstatement fee requirement, as detailed above. The conduct of the Union, taken together with its constitution and bylaws, demon- strates that the payment of the reinstatement fee was not ancillary to the valid union-security provi- that seniority previously accumulated as a supervisor remained credited to the returning employee 12 The Union's regular initiation fee was $ 5, and its dues $2 monthly "These four were Flick , who had been out of the unit since 1959, Monte, who left the unit in 1961, Conser, who left the unit September 16, 1966, only 40 days before he returned, and Paisley , who left the unit March 1, 1965 METAL WORKERS' ALLIANCE; INC. Sion of the contract. Rather, it served only the pur- pose of permitting employees so situated to buy back their seniority from the Union. Even assuming that a contract between a company and a union could lawfully condition seniority standing on pay- ment of dues, initiation fees, or reinstatement fees to a union, this contract did not do so. It flatly and unequivocally provided that employees transferred to positions not in the bargaining unit could return to the unit with their old seniority intact without providing for payment to the Union. Therefore, and without regard to the fact that the reinstatement fees here were in some instances many times more than dues and initiation fees required of unit em- ployees,'" the Union could not require payment of these fees as a condition of retaining seniority in the bargaining unit. The Act permits a union, in certain circum- stances, to condition employment upon payment of periodic dues and initiation fees; it does not permit ,a union to condition other incidents of employment on payment to the union. As the Board said in Krambo Food Stores, Inc., 106 NLRB 870, 877, "Congress permitted one exception to this all- inclusive ban, namely, employers and unions under certain circumstances were allowed to require that employees join or maintain their membership in a union as a condition of employment. Nothing in the Act or its legislative history persuades us that the union-shop provisos to Section 8(a)(3) and 8(b)(2) were designed to give employers and unions a license to use various discriminatory devices, short of discharge. . . ." In that case, the Board found that the Union violated 8(b)(2) and (1)(A) by causing the Company to withhold vacation pay from employees who were delinquent in their dues. The Trial Examiner, with Board concurrence, seems to view this case as involving a reinstatement fee enforced by a valid union-security provision, with the fee applied uniformly to a reasonable clas- sification of employees, citing the Food Machinery case .15 That case is inapposite here for a number of reasons . First, the discharge was not threatened pursuant to the union-security clause here, but pur- suant to the Union's unilateral constitutional and bylaw provision, and was germane only to the em- ployees' retention of their accumulated seniority (accumulated during a period when they were in the unit, and paid their periodic dues). Secondly, the payments were required immediately upon the employees' return to the unit, not after 30 days. Finally, as Food Machinery itself makes plain, it is not a reasonable classification to provide for a rein- statement fee only for employees who were em- ployed by the employer in nonunit jobs. An em- ployee who left the Employer's employ altogether 819 was not required to pay a reinstatement fee here.16 For all these reasons, I would reverse the Trial Ex- aminer, and find that the Union violated 8(b)(2). " As noted above , employee Conser was out of the unit a little more than a month, and had actually paid union dues for the 2 months covering the period of his supervisory employment, yet he was charged a $50 reinstate- ment fee to retain his 7 years ' seniority accumulated in the unit "99NLRB 1430 In Food Machinery , the Board majority found lawful a reinstatement fee requirement that was uniformly applicable to all former members, without regard to their service with any particular employer Here, as noted, only employees who were with this employer in noncovered posi- tions were required to pay a reinstatement fee, and the amount thereof was directly related to the length of time the employee had been in the non- covered position I think the case immediately preceding Food Machinery in the Board volumes, Local 153, UAW (Richard Stacker), 99 NLRB 1419, demonstrates the correctness of my reading of Food Machinery In Stacker, the Board unanimously found unlawful imposition of an initiation fee because the amount of the fee was graduated according to the length of ser- vice with the employer during a period when the employee was not covered by a valid union -security agreement ( See also the dissenting opinion of Chairman Herzog and Member Houston in Food Machinery , supra ) In short , the distinction made by the Respondent Union in this case is not between new members and former members , but between former members who continued working for the Employer in noncovered positions and former members who left the employ of this Employer altogether This distinction has never before been considered by the Board to be a reasona- ble classification APPENDIX NOTICE TO ALL MEMBERS OF METAL WORKERS' ALLIANCE, INCORPORATED Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act, by threatening to have them discharged if they refuse to sign checkoff authorization cards. METAL WORKERS' ALLIANCE, INCORPORATED (Labor Organization) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Federal Office Building, Room 1695, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-621-4465. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner: Upon a charge filed November 14, 1966,1 and upon an amended charge filed December 19, and a second amended charge filed February 27, 1967, by Robert C. Flick, an individual, a complaint and notice of hearing was issued on March 3, 1967, against Metal Work- ers' Alliance, Incorporated (hereinafter called the Respondent Union). The complaint alleges, in sub- stance , that the Respondent Union violated Section 8(b)(1)(A) and 8(b)(2) of the Act by requiring employees who leave bargaining unit jobs to accept supervisory positions or jobs outside the bargaining unit to pay a reinstatement fee upon their return to jobs in the bargaining unit. The complaint also al- leges that the Respondent Union violated the above sections of the Act by threatening to cause the discharge of employees returning to bargaining unit positions in the event they failed to pay the rein- statement fee. The answer filed on behalf of the Respondent Union admits certain allegations of the complaint, denies others, and specifically denies the commission of unfair labor practices. This case was heard by me on April 25, 1967, in Alliance, Ohio. All counsel were afforded full opportunity to be heard and to introduce relevant evidence. Briefs have been submitted by the General Counsel and the counsel for the Respondent Union, and they have been fully considered by me in arriving at my decision in this matter. Upon the entire record in this case, including my evaluation of the witnesses based on my observa- tion of their demeanor, and upon all of the relevant evidence contained in the record, I make the fol- lowing: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS TRW Metals Division, TRW, Inc. (hereinafter called the Company), is an unincorporated division of TRW, Inc., an Ohio corporation. The Company maintains its principal office in Alliance, Ohio, and operates plants in Alliance and Minerva, Ohio, where it is engaged in the manufacture of invest- ment castings, high alloy steels, stainless steels, and vacuum grade steels. In the course of its business operations, the Company annually ships finished goods and products valued in excess of $50,000 from its Alliance and Minerva, Ohio, plants directly to points outside the State of Ohio. In addition, the Company annually purchases goods and material valued in excess of $50,000 from suppliers located outside the State of Ohio, and causes such goods and materials to be shipped to its facilities in Al- liance and Minerva, Ohio. The complaint alleges and the Respondent Union admits that the Company is an employer engaged in commerce within the meaning of the Act. Ac- cordingly, I find 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. II. THE LABOR ORGANIZATION INVOLVED Metal Workers' Alliance, Incorporated, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts There is little dispute concerning the material facts in this case. The Respondent has been the col- lective-bargaining representative of the Company's production and maintenance employees since 1959. Initially, the unit only embraced the employees at the Minerva plant, but the latest collective-bargain- ing agreement includes the production and main- tenance employees at the Alliance plant as well.' The collective-bargaining agreement for the period 1963-1966 contained a provision, which required as a condition of employment, that all bar- gaining unit employees who failed to join or main- tain membership in the Respondent Union pay a monthly service charge not to exceed the amount of the monthly union dues.' The current agreement modifies this provision to require all unit employees who are members to remain members, and all who i Unless otherwise indicated, all dates herein refer to 1966 2 The current agreement is for the period May 19, 1966, to May 20, 1969 The unit is described as follows All production and maintenance employees at the Company 's Minerva and Alliance , Ohio, plants including leadmen , if any, hourly service employees , and hourly shipper-receivers , but excluding Company time study and job evaluation employees , laboratory assistants and technicans , office clerical employees , plant clerical employees, guards, professional employees and supervisors as defined in the Na- tional Labor Relations Act 3 Art 5 2 of the 1963-1966 agreement which in pertinent part provided Each employee who fails voluntarily to acquire or maintain member- ship in the Union shall be required , as a condition of employment, beginning on the sixtieth (60th) day following the beginning of such employment or the date of this Agreement , whichever is later, to pay to the Union each month a service charge as a contribution toward the administration of this Agreement and the representation of said em- ployee The service charge for the first month shall be an amount not in excess of the regular and usual monthly dues of the Union, and the service charge for each month thereafter shall not exceed the regular and usual monthly dues of the Union . METAL WORKERS' ALLIANCE, INC. 821 are not to become and remain members after a specified period of time.4 Over the years, the Company has followed the practice of promoting unit employees to superviso- ry positions and transferring employees to salaried or hourly paid jobs outside of the unit. In recogni- tion of this fact, specific provisions were placed in the Respondent Union's constitution and bylaws concerning reinstatement of membership in the Union. In addition, provisions were incorporated in the various collective-bargaining agreements con- cerning the seniority rights of the employees so transferred. For example, the constitution and bylaws, amended in 1960, contained a clause which in relevant part provided: Initiation fees shall be One Dollar ($1.00), it being, however, provided that if for any reason other than for promotion to a supervisory capacity, as defined in the Labor-Management Act of 1947, as amended, an employee withdraws from the organization for each month as such employee has withdrawn and not paid dues, the initiation fee shall be in- creased One Dollar ($1.00) per month, not to exceed 24 months .... 5 The 1963-66 collective-bargaining agreement con- tained the following provisions relating to the seniority of employees in supervisory positions and the seniority of unit employees transferred to jobs outside of the unit: 7.7 SENIORITY OF SUPERVISORS. Employees in supervisory positions as of July 20, 1959, shall have full credit for all seniority accumulated by them as of said date whether in or out of the bargaining unit. They shall con- tinue to accumulate seniority while employed in the supervisory position. In the event such an employee is transferred from the superviso- ry position for any reason, then the Company may place such employee in any occupation in the group he is supervising at the time of his removal from supervision, provided he actually supervised the job he is placed in, or in any code in the bargaining unit which he formally held. In either such event the employee must be qualified to perform the job and be entitled thereto by virtue of his total seniority. This paragraph shall not inure to the benefit of any supervisor hired as such after July 20, 1959, but all employees thereafter promoted from the bargaining unit to supervisory positions shall be entitled to the benefits hereof. 7.8 SENIORITY OF OTHER SALARIED EMPLOYEES. An employee who previously worked in the bargaining unit, and who had been transferred to a salaried job or an hourly rated job in the bargaining unit, shall continue to accumulate seniority while so engaged, and in the event of layoff or transfer, may be returned by the Company to a job within the bargaining unit provided he previously worked on the job to which he is being returned and provided he had more seniority than the employee dis- placed. The current collective-bargaining agreement, how- ever, modifies these provisions to eliminate the ac- cumulation of seniority while employees occupy su- pervisory positions or jobs outside of the bargaining un it.6 "This provision is found in art 5 of the current collective-bargaining agreement , and reads as follows 5 1 It shall be a condition of employment that all employees of the Company covered by this Agreement who are members of the Union in good standing on the effective date of this Agreement shall remain members in good standing Employees who are not members on the ef- fective date of this Agreement shall, on the sixtieth day following the effective date of this Agreement , become and remain members in good standing in the Union It shall also be a condition of employment that all employees covered by this Agreement and hired on or after its effective date shall on the sixtieth day following the beginning of such employment become and remain members in good standing in the Union ' G C Exh 3, art 11(c) 6 These provisions are contained in art 7 of the current collective-bar- gaining agreement , and in pertinent part read as follows 7 7 SENIORITY OF SUPERVISORS As of June 20, 1966, no employee in a supervisory position with the Company will accumulate seniority while in such position The seniori- ty rights of supervisors shall be as follows (a) Employees in supervisory positions as of July 20, 1959, shall have full credit for all seniority accumulated by them as of June 20, 1966, whether in or out of the bargaining unit Thereafter, they shall accumulate no further seniority while in the supervisory position (b) Employees promoted from the bargaining unit prior to May 20, 1966, shall have full credit for all seniority accumulated by them as of June 20, 1966, whether in or out of the bargaining unit Thereafter, they shall accumulate no additional seniority while in the supervisory position (c) Employees who may be promoted from the bargaining unit to supervisory positions on or after May 20, 1966, shall have full credit for all seniority accumulated by them as of their date of transfer Thereafter they shall accumulate no additional seniority while in the supervisory position (d) A supervisor hired as such after July 20, 1959, shall have no seniority rights hereunder In order to implement the changes in this paragraph , an employee who is in a supervisory position as of May 20, 1966, may be returned to the bargaining unit by the Company on or before June 20, 1966, without payment of any Union reinstatement fee 7 9 SENIORITY OF OTHER SALARIED EMPLOYEES An employee who previously worked in the bargaining unit, and who has been transferred to a salaried job or an hourly rated job not in the bargaining unit prior to May 20, 1966, shall accumulate seniority until June 20, 1966 Thereafter he shall retain his seniority but shall accumulate no additional seniority while so engaged An employee who may be transferred from the bargaining unit to a salaried job or an hourly job not in the bargaining unit on or after May 20, 1966, shall retain the seniority as accumulated as of the date of transfer but shall accumulate no additional seniority while so engaged In the event such an employee is laid off from that position, or is disqualified by the Company for medical reasons, or because of unsatisfactory per- formance he may be returned by the Company to a job within the bar- gaining unit provided he previously worked on the job to which he is being returned and provided he has more seniority than the employee displaced In order implement the change in this paragraph an em- ployee who has been transferred from the bargaining unit to a salaried job or an hourly rated job not in the bargaining unit as of May 20, 1966, may be returned to the bargaining unit by the Company on or before June 20, 1966 , without the payment of any Union reinstate- ment fee 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition to the provisions in the collective-bar- gaining agreement, the Respondent Union also adopted a series of amendments to the constitution and bylaws setting forth a schedule of reinstatement fees for employees returning to bargaining unit positions from supervisory jobs or jobs outside of the unit. In the fall of 1965, the constitution and bylaws were amended in the following manner: Initiation fees shall be Five Dollars ($5.00), it being, however, provided that any member who voluntarily leaves the bargaining unit to accept employment with the employer out of the bargaining unit , which employment under the terms of the collective-bargaining agree- ment, will entitle the employees to accumulate bargaining unit seniority while so employed, must upon being reassigned to the bargaining unit pay a reinstatement fee to the treasury of the Metal Workers' Alliance, Inc., in ac- cordance with the following schedule: (1) $50.00 for one year or less employ- ment outside the bargaining unit. (2) $100.00 for two years or less employ- ment outside the bargaining unit. (3) $150.00 for three years or less em- ployment outside the bargaining unit. The above reinstatement may be paid by check-off over a period not to exceed three monthly dues check-off dates after reinstate- ment to the bargaining unit. On August 14, 1966, the above provision was further amended to delete the phrase, "which em- ployment under the terms of the collective-bargain- ing agreement will entitle the employees to accu- mulate bargaining unit seniority while so em- ployed." Because of the patent ambiguity contained in the language of the 1965 amendment, this provi- sion was further revised in November 1966, to read as follows: B. Application of the Reinstatement Fee Requirement 1. Robert C. Flick Flick has been employed by the Company since 1957. He transferred from the Company's Cleve- land plant to the Minerva plant as a foreman in 1957 and remained in that job until 1958, when he transferred to a bargaining unit job because of a production cutback. In August 1959, while in the bargaining unit, Flick joined the Respondent Union and paid union dues for the months of August and September. In September 1959 Flick again left the bargaining unit for a supervisory position. Thereafter he continuously held supervisory or nonunit jobs until he transferred back into the bar- gaining unit on October 26, 1966. Approximately a week after he transferred back into the unit Flick was told by Union Steward Hawk that he had to sign an authorization card giving the Company authority to check off his reinstatement fee and his monthly union dues. Flick did not sign the authorization card immediately and a few days later was approached by Ruth Ann Bettis, treasurer of the Union, concerning the matter. Bettis told Flick that he had to sign the authorization card or the Union would inform the Company and he would be discharged. Flick subsequently signed the card. A few months prior to his return to the bargain- ing unit Flick had a conversation with Union Vice President Caswell concerning the purpose of the reinstatement fee. Henry Monte, another employee who at that time held a position outside of the bar- gaining unit, was also present during the conversa- tion. Caswell told Flick and Monte that employee Murchy Robinson had returned to a bargaining unit job, retained all of his accumulated seniority, and replaced a man on the job. According to Caswell, this was done without payment of any fee to the Union and it was unfair. Caswell stated that this was one of the reasons why the Union put the rein- statement fee into effect. (1) $50.00 for less than 1 year employment outside the bargaining unit. (2) $100.00 for 1 year but less than 2 years employment outside the bargaining unit. (3) $150.00 for more than 2 years employ- ment outside the bargaining unit. In addition to the amendments to the constitution and bylaws, the union-security provision in the cur- rent collective-bargaining agreement made the pay- ment of initiation fees, reinstatement fees, and monthly dues a condition of employment.' ' Although it would appear from the wording of the 1965 amendment that the Union could charge an employee the maximum reinstatement fee for holding a position outside the bargaining unit for a year or less, this was not the intent nor was the provision applied in this manner It is apparent 2. Henry Monte Monte began working for the Respondent in 1958. In 1961 he was transferred to a salaried posi- tion outside of the bargaining unit. Monte sub- sequently became a foreman and held that position until he transferred back into the bargaining unit on October 26, 1966. Shortly after his transfer back into the unit Monte was asked by Union Steward Aeling to sign an authorization card for the checkoff of his reinstatement fee. Monte refused to do so, and was later informed by Bettis that if he from the record that the reinstatement fees were always assessed in ac- cordance with the language of the final revision of the amendment 8 G C Exh 6, art V METAL WORKERS' ALLIANCE, INC. 823 did not sign the card the Union would notify the Company and ask for termination of his employ- ment. Monte relented and executed the required authorization card. 3. Daniel Conser Conser was hired by the Company in 1959. On September 16, 1966, Conser was promoted to a foreman's position. The following month (October 26), Conser was transferred back into the bargain- ing unit and the Union required him to pay a $50 reinstatement fee.9 Prior to becoming a foreman Conser had been a chief steward in the Union, and, as such, was a member of the Union's executive committee. Conser attended a meeting of the executive com- mittee in May or June 1966, at which time Union President Kajganic informed the committee mem- bers that an employee would be liable for payment of the reinstatement fee even though he were only out of the bargaining unit for 1 day. Kajganic in- dicated that the reinstatement rule would be strictly applied. 4. William Paisley Paisley has been in the Company's employ since 1958. On March 1, 1965, Paisley was promoted to a foreman's position. On October 26, 1966, Paisley returned to the bargaining unit, and the Union required him to pay a reinstatement fee of $100. In addition to the above-named employees, the record shows that a number of other employees had at one time or another transferred from bargaining unit jobs to salaried positions. In each instance when these employees returned to the bargaining unit after the adoption of the reinstatement fee, they were required to pay the fee in accordance with the schedule set forth in the Union's constitu- tion and bylaws. C. Contention of the Parties The General Counsel contends that the reinstate- ment fee bears no relationship to the Union's dues structure, and that the enforcement of the payment of the fee through the union-security clause in- dicates that the sole purpose of the requirement is to deter reentry of salaried and/or supervisory em- ployees into the bargaining unit. The General Counsel further contends that even if the fee were not designed for this purpose, it would still be un- lawful as it imposes an obligation analogous to the payment of union dues accruing during a time when the employees are outside of the bargaining unit and under no duty to meet membership obligations. The Respondent Union, on the other hand, con- tends that the reinstatement fee is uniformly ap- plied to specific class of employees, the basis of which is reasonable. The Respondent Union notes, and correctly so, that the complaint does not allege a violation of Section 8(b)(5).10 Hence, the issue is not whether the fee is excessive, but whether the fee and the enforcement thereof through the union- security provisions causes the Company to dis- criminate against employees in violation of Section 8(a)(3) or against employees whose membership in the Union has been denied for reasons other than failure to pay periodic dues and initiation fees. Concluding Findings As noted previously, the operative facts are not in dispute in this case. The Respondent Union did adopt a schedule of reinstatement fees for em- ployees returning to the bargaining unit from posi- tions outside of the unit. In addition, the Respon- dent Union enforced payment of the reinstatement fee through the union-security provisions of the col- lective-bargaining agreement with the Company. Therefore, the narrow issue to be decided here is whether the assessment and the enforcement of these fees through the union-security clause con- stitutes a violation of Section 8(b)(1)(A) and (2). Contrary to the arguments advanced by the General Counsel, I find that the application of the reinstatement fee in these circumstances is not a violation of the Act. The Board has long ago held that a reinstatement fee enforced through a valid union-security clause is not unlawful provided the requirement is uniformly applied to a classification of employees which is reasonable. Food Machinery and Chemical Corporation, 99 NLRB 1430; Interna- tional Association of Machinists, Precision Lodge No. 1600 (Adel Precision Products), 120 NLRB 1223; Local 173, International Molders and Foundry Workers Union of North America, AFL-CIO (Hublry Manufacturing Company), 121 NLRB 170. The evidence in this case conclusively estab- lishes that the reinstatement fees were uniformly applied to all employees returning to unit jobs from salaried or hourly paid positions outside of the bargaining unit. The General Counsel cites a number of cases in which reinstatement fees have been held to be un- lawful. But a careful reading of these cases in- dicates that the decisions rest upon factors which are not present in the instant case. For example, in Kaiser Steel Corporation, 125 NLRB 1039, the 9 During the months of September and October Conser also paid his union dues even though he held a position outside of the bargaining unit for the major portion of that period There is no evidence in the record, how- ever, to indicate that the Union insisted on payment of Conser 's dues for this period ° Sec 8(b)(5) in pertinent part reads To require of employees covered by an agreement authorized under subsection ( a)(3) the payment, as a condition precedent to becoming a member of such organization , of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union sought to exact a reinstatement fee from a supervisor returning to a bargaining unit job. The fee sought was equivalent to the monthly dues ac- crued while the employee held the supervisory posi- tion. The Board found this to be unlawful as the employee was under no legal obligation to pay dues while a supervisor , and the Union could not condi- tion unit employment upon such payment . In Spec- tor Freight System, Inc.," the Union , by means of a union-security provision , caused the employer to terminate an employee for failure to pay a rein- statement fee after suspension from membership. The employee was suspended from membership because of his- failure to- pay monthly dues for a period which included a month when he was not employed by the Company and under no obligation to pay dues . It was held that this conduct violated Section 8(b)(1)(A) and ( 2) as the employee was under no statutory duty to pay union dues when not employed by the Company . In addition , the suspen- sion from membership was found to be unlawful because it was predicated upon the payment of dues during a period when the employee was under no obligation to do so . The latest expression on this point is the Board's recent decision in International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers , Local Lodge No. 338, AFL-CIO (Eidal International Division Southwest Factories , Inc.), 166 NLRB 874. The majority decision in that case sustained the Trial Examiner 's finding of a violation of 8(b )( 2) for the reason that the Union canceled the employee's membership and imposed a reinstatement fee solely because of the employee 's refusal to pay dues for the initial month of his employment , an obligation he was not required to meet under the terms of the union-security clause in the contract. Therefore, in each instance where a violation has been found , the Union involved has attempted to exact a membership obligation from an employee covering a period when the employee was under no duty to make such payments . This does not apply to the circumstances of the instant case . Here there is not evidence whatsoever to warrant the inference that the reinstatement fees were intended or con- sidered to be payment of monthly union dues ac- crued while the employees held positions outside of the bargaining unit. Indeed , one of the General Counsel's main arguments is that the reinstatement fees are wholly unrelated to the dues structure. Moreover , employees returning to the bargaining unit are immediately entitled to certain benefits and rights under the collective -bargaining agreement which do not apply to new hires . For example, em- ployees promoted to supervisory positions prior to May 20, 1966, retain all seniority accumulated by them as of June 20, 1966, whether in or out of the bargaining unit . Employees promoted to superviso- ry positions after May 20, 1966, retain all unit seniority accumulated until the date of transfer. Salaried or hourly paid employees who transferred from unit jobs prior to May 20, 1966, accumulate and retain unit seniority until June 20, 1966, and employees who so transfer after May 20, 1966, retain all accumulated unit seniority. In addition, supervisory or nonbargaining unit employees trans- ferring back into the unit are immediately entitled to share in unit overtime, are eligible for paid holidays and vacations, are immediately covered under the insurance provisions of the contract, and have shift preference and job bid rights. In contrast, new hires must successfully fulfill certain proba- tionary requirements before they can become eligi- ble for these benefits. I find, therefore, that the basis for the application of the reinstatement fees to this class of employees-those returning to the unit from nonunit positions-to be entirely reasonable and nondiscriminatory.12 Accordingly, I find and conclude that the assess- ment of the reinstatement fees and the enforcement thereof through the union-security provisions of the collective-bargaining agreement do not, in the cir- cumstances of this case, constitute a violation of Section 8(b)(1)(A) or (2). CONCLUSIONS OF LAW 1. TRW Metals Division , TRW, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By adopting a schedule of reinstatement fees pertaining to employees who return to bargaining unit jobs from positions held outside of the bargain- ing unit and by enforcing payment of such fees through the union-security provisions contained in the collective-bargaining agreement with the Com- pany, the Respondent has not committed violations of Section 8(b)(1)(A) and (2) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the allegations of the complaint herein be dismissed in their entirety. " 123 NLRB 43, enfd 273 F 2d (C A 8), cert denied 362 U S 962 z It is true that rigid application of the reinstatement requircment did and could result in individual hardship Thus employee Conser, who held a nonunit position for little more than a month , was required to pay the minimum reinstatement fee of $50 In sharp contrast to this, however, is the situation which pertains to the Charging Party , Flick This employee paid initiation fees and dues amounting to $6 in 1959, and thereafter held nonunit jobs until October 1966, retaining during this time all of his seniority and fringe benefit rights under the collective-bargaining agree- ments But the harshness or temperateness of the reinstatement require- ment as it relates to individual employees has no relevancy in determining whether a violation exists in this case