Electric Utility Workers Union

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Electric Utility Workers Union (Independent) (Indian- apolis Power & Light Company) and A. Marie Scholtes. Case 25-CB-1675 January 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 15, 1973, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed cross-exceptions and a brief in support of the cross-exceptions and in support of the Adminis- trative Law Judge's Decision. 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. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be dismissed in its entirety. I We find it unnecessary to adopt the Administrative Law Judge's comments regarding the "degree of enthusiasm" which the Act places on a union representative in handling grievances The Board has held that a "union has a wide range of reasonableness within which to represent its members " (See Chrysler Corporation, 193 NLRB 898) The standard of reasonableness is breached when the union has demonstrated arbitrary, discriminatory, or bad-faith conduct (See Vaca v Sipes, 386 U S 171, 190 (1967)) We find that the Union has not breached this standard. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: Pursuant to an unfair labor practice charge filed on March 5 , 1973, by A. Marie Scholtes, an individual, complaint issued on April 27, 1973, alleging that Electric Utility Workers Union (Independent), herein called Respondent, violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended . More specifically, the complaint alleged that Respondent threatened employees of Indianapolis Power i The Company entered an appearance through its counsel. His appearance , as he stated, was to represent his client who had been served with a subpena duces tecum prior to the hearing He did not otherwise participate in the hearing & Light Company, herein called the Company, that it would withhold fair representation from employees and that it would cause or attempt to cause the Company to discharge employees unless said employees paid dues for a period of time when the employees were not obligated to pay such dues. In its answer, Respondent denied commis- sion of the unfair labor practices alleged in the complaint. Hearing was conducted on this matter on June 28, 1973, in Indianapolis, Indiana. At the hearing all parties were represented by counsel,' and were afforded full opportunity to examine and cross- examine witnesses, to introduce evidence pettinent to the issues, and to engage in oral argument. Upon the entire record in this case,2 upon my observa- tion of the witnesses, and upon due consideration of the beefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. JURISDICTION Indianapolis Power & Light Company, an Indiana corporation, is a public utility engaged in the production, sale, and distribution of electrical energy and steam, with its principal office in Indianapolis, Indiana, with plants and other facilities located in Indianapolis and other locations in the State of Indiana. During the past year, in the course and conduct of its business operations, it purchased goods and materials valued in excess of $50,000 which were transported and delivered to its Indiana facilities from points outside the State of Indiana. During the same period, in the course and conduct of its business operations, it received gross revenues in excess of $250,000. The parties admit, and I find, that Indianapolis Power & Light Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I find, that Electric Utility Workers Union (Independent) is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES At all times material to this proceeding, the Respondent has been the bargaining representative of the Company's office clerical employees. From December 16, 1968, to December 16, 1971, a collective-bargaining agreement existed between the parties. This contract contained a union-security provision and also provided for checkoff of union dues. On June 12, 1972, a new contract containing a union-security clause was executed and became effective on that date. It is undisputed that no contract was in existence between December 16, 1971, and June 12, 1972. During this hiatus between the two contracts, the Compa- ny did not check off union dues. Upon execution of the 2 Subsequent to the hearing the General Counsel filed an unopposed motion to correct the transcript of testimony To the extent noted below, the motion is granted and the transcript is hereby corrected in the following particulars [omitted from publication I 208 NLRB No. 14 ELECTRIC UTILITY WORKERS UNION new contract, the Company once again started deducting the dues. During this hiatus period, a number of the employees in the bargaining unit did not pay union dues. In June 1972 the Respondent undertook to collect the dues not paid by employees during the hiatus period. At its general membership meeting of June 5, 1972, a resolution was passed to assess the delinquent members the amount they owed for the period when no contract was in existence. As the Respondent's counsel states in his brief, as he did during the hearing, it is a matter of semantics whether the action taken on June 5 is termed an assessment or "back dues." The resolution clearly indicated that the Respon- dent intended that the delinquent members pay the back dues for the penod. The minutes of this meeting were received in evidence (G.C. Exh. 10). Subsequent to this meeting, the Respondent, through personal letters to the delinquent members and through its newsletters to its members, appealed to the delinquent members to pay their back dues so they could again become members in good standing. None of these communications referred to the contract or the union-security provision. Among the group of delinquent members were Charging Party A. Marie Scholtes, Terry Ambler, Judith Blomberg, and Larry Miller. They were all employees in the bargaining unit and members of the Union. Their union dues had been checked off up until the earlier contract expired in December 1971. In July 1972, once again the Company began checking off their dues. During the 6-month hiatus when no contract was in existence, their dues were not checked off nor did they pay their dues personally.3 The General Counsel contends that a meeting in January 1973 with the four delinquent members named above the Respondent's president, Sherman Gatchell, threatened them with discharge and with less than fair representation unless they paid their delinquent dues. The General Counsel further contends that the delinquent employees were under no obligation to pay such dues and the Respondent, by its threats, restrained and coerced the employees in violation of Section 8(b)(1)(A) of the Act. At the request of employees Ambler, Blomberg, and Scholtes, the Company's personnel director, Beplay, arranged a meeting in late January 1973 with Gatchell.4 Present at the meeting were Gatchell, Beplay, Ambler, Blomberg, Miller, and Scholtes. The employees asked Gatchell why they had to pay the back dues for the period when no contract was in existence. Gatchell informed them he was not familiar with all the considerations and said he would report back to them. A day or two later, the same group met again. The testimony of the witnesses who testified at the heanng5 concerning this second meeting is not at variance in any substantial degree. The findings as 3 Some members had made only a partial payment In any event, they were also considered delinquent and not in good standing 4 Gatchell was elected president of the Union at the June 5 meeting. He is also employed by the Company s Gatchell, Beplay, Ambler, Blomberg, and Scholtes. 6 From G.C. Exh. 3 Section 2.01 Membership. Each employee covered by this agreement who on January 27, 1972, was a member of the Union, and each employee who thereafter becomes a member of the Union, shall as a 125 to what was said at this meeting are based upon a composite of the credited aspects of the testimony of the witnesses. Gatchell read to them the resolution passed at the June 5, 1972, meeting. He also read that part of the current contract pertaining to union security .6 He likewise read that part of the Union's constitution and bylaws pertaining to the definition of membership in good standing. He told them they were no longer members in good standing by their failure to pay the back dues, that under the contract they could be discharged for failing to pay the dues but that neither the Company nor the Union had any interest in enforcing these provisions. He stated the Union would not seek to get them discharged. He was asked by Scholtes if they would be represented by the Union if they filed grievances. Gatchell assured them he would process their grievances to the best of his ability in the same manner as for any other employee; that he would represent them, not because he wanted to, but because he was obligated to. He also said he could not speak for any other counselor (steward) or fellow employees. He was asked if that meant they would get only token representa- tion. His response was in the form of a question, asking what they would do if someone owed them money. The record discloses that no action has been taken by the Union to attempt to cause the Company to discharge or otherwise discipline the employees. Nor have any of the delinquent members who testified filed any grievances since their loss of membership in good standing. The record fails to disclose any instance where any official of the Union sought out any of the individual delinquent members to pay their back dues. Analysis and Conclusion As mentioned above, the General Counsel contends that employees were not obligated to pay dues for the penod during which no contract was in existence. Under those circumstances, the General Counsel argues that Gatchell threatened Scholtes and the three other employees who were delinquent in their payment of back dues in a manner which fell within the proscriptions of Section 8(b)(1)(A). Although Respondent's counsel has referred to the Union's action as an assessment, he acknowledged this was an attempt to collect the dues from those members, few in number, who had not paid the dues during the hiatus. If it were an assessment not related to the dues, the Respondent clearly could not threaten to affect the employment conditions of delinquent members. If, on the other hand, we are to consider this to be back dues, the Union likewise would not be priviledged to threaten sanctions affecting their conditions of employment since they, would then be compelled to pay membership obligations which accrued condition of employment remain a member of the Union in good standing for the duration of this agreement and each employee covered by this agreement who was employed after January 27, 1972 , shall as a condition of employment become a member of the Union on or before the thirtieth day following his date of hire or the effective date of this agreement, whichever is later, and shall remain a member of the Union for the duration of this agreement , provided that the Union shall not refuse or terminate the membership of any employee to whom this section applies, who is eligible for such membership in accordance with the Constitution and By-Laws of said Union 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at a time when there was no valid union-security contract in existence requiring membership in the Union.7 The issue then reduces itself to the question whether Gatchell, at the second meeting with the employees in late January, threatened them for failure to pay their back dues in a manner which would fall afoul of Section 8(b)(1)(A) of the Act. With respect to any alleged threat to attempt to cause their discharge, the evidence shows that Gatchell told the employees that under the union-security clause of the contract the Union could seek their discharge but had no intention of doing so. Under the circumstances here present, I do not consider this to be an unlawful threat, express or implied. In reaching this conclusion, I have taken into consideration that this meeting in January was more than 7 months after the Union's resolution to seek the back dues from those who had failed to pay. During this interim period there were no personal approaches to the individual delinquent members nor were they threat- ened in any manner. The delinquent members themselves sought out Gatchell to determine their legal obligations with respect to their dues. Although Gatchell cited the union-security clause requiring membership in good standing,8 he made it crystal clear in unambiguous language that the Union had no intention of enforcing the provision or seeking their discharge. The record reveals that the Respondent has not at anytime sought the discharge or discipline of any employee who failed to pay the back dues. The General Counsel argues that Gatchell's assurance to the employees that the Union would not seek enforcement of the union-secunty provision in the contract or seek their termination did not make the threat less real. The reasoning behind this contention is that there was no assurance the Union would not change its intentions. I do 7 The Eclipse Lumber Co, 95 NLRB 464, enfd 199 F 2d 684 (C A. 9), New York Shipbuilding Corp., 89 NLRB 1446; Moinsanto Chemical Company, 97 NLRB 519. 9 The legality of the union secunty clause has not been attacked 9 In the event no exceptions are filed as provided by Section 102.46 of not agree with this contention. I do not believe it was incumbent upon Gatchell to embellish his statement with a further assurance that his assurance was, in effect, guaranteed. We now turn to the second allegation that Gatchell threatened to deprive the delinquent members of fair representation in the processing of grievances. I find this allegation to be without merit. Although Gatchell told the employees he would not be happy to process their grievances (none had been filed) the Act does not place a standard as to the degree of enthusiasm to be engendered by a bargaining representative in the processing of a grievance. In this case, Gatchell clearly told the employees that irrespective of their dues delinquencies, their griev- ances would be processed in the same manner as grievances filed by all the other employees in the bargaining unit. The Act requires no more. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon all the foregoing, and pursuant to Section I0(c) of the Act, I hereby issue the following recommended:9 ORDER It is hereby ordered that the complaint herein be dismissed in its entirety. the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes