Intl. Union, United Automobile Workers

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Local 1772 (Kuhlman Electric Company) and William J. Nickles. Case 9-CB-2503 May 22, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying the allegations on unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Adminis- trative Law Judge John P. von Rohr in Lexington, Kentucky, on January 9, 1974. Briefs were received from the General Counsel and the Respondent on February 5, 1974, and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT On February 22, 1974, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. 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, and it hereby is, dismissed. We hereby correct the following inadvertent errors in the Decision of the Administrative Law Judge which in no way affect his Decision nor our adoption thereof. ( I) in the seventh sentence of the ninth paragraph in sec. III B, the name Wells should be changed to Nickles ; (2) in the next-to-last sentence of the ninth paragraph in sec. III B, the phrase "the next morning" should be deleted and the phrase "on September 12" be substituted; (3) in the last sentence of the ninth paragraph in sec . III B, the phrase "at this time" should be deleted and the following phrase be substituted . "but as of the date of the hearing Nickles admitted that he had never paid any initiation fees or dues to the Union"; and (4) in the third sentence in the second paragraph in sec III C, the second reference to Jones should be changed to Wells DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on October 19, 1973, the General Counsel of the National Labor Relations Board, by the Regional Director of Region 9 (Cincinnati, Ohio), issued a complaint on December 12, 1973, against International Union, United Automobile and Aerospace and Agricultur- al Implement Workers of America, UAW, Local 1772, herein called the Respondent or the Union, alleging that it had engaged in certain unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the National 1. THE BUSINESS OF THE EMPLOYER Kuhlman Electric Company, herein called the Employer or the Company, is a Michigan corporation with a plant located at Versailles, Kentucky, where it is engaged in the manufacture and sale of transformers for electric utility companies. During the year preceding the hearing herein, the Company purchased goods and materials valued in excess of $50,000 which were shipped to it from points and places located outside the State of Kentucky. The parties concede, and I find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Local 1772, herein called the Respondent or the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue Employee William J. Nickles was discharged from his employment for not having tendered union dues and initiation fees within the 90-day period designated by a lawful, newly executed union-security agreement. The issues are (1) whether the Respondent Union, under all the circumstances present in this case, violated Section 8(b)(2) and (1)(A) of the Act by attempting to cause and causing the Employer to discharge this employee pursuant to the union-security clause in the contract; and (2) whether Respondent "accepted" Nickles' tender of dues prior to his actual termination, and whether under the peculiar circumstances present in the case Respondent waived its rights under the union-security clause. B. The Facts The Respondent has represented the production and maintenance employees of Kuhlman Electric Company since 1971. The latest of a series of collective-bargaining agreements between the parties is by its terms effective from June 4, 1973, to June 17, 1976. This contract was the first to include a union-security clause, section 2 of which provides in pertinent part as follows: All employees with seniority who have not become members of the Union as of the effective date of this 210 NLRB No. 122 INTL. UNION, UNITED AUTOMOBILE WORKERS 799 agreement shall be required to do so within ninety (90) days from the date of this Agreement, to the extent of paying initiation fees and dues uniformly required by the Union as a condition of membership; such membership must be maintained, as a condition of employment, for the duration of this Agreement. William J. Nickles, the alleged discriminatee herein, was first employed by the Company on March 29, 1971. He was promoted to the position of line leader about July 1972 and held that position until the date of his eventual termination, which occurred on September 10, 1973. Nickles was 1 of I I employees in the appropriate unit who were not union members when the contract was executed on June 4. Insofar as Nickles was concerned, it is undisputed that Curtis Oliver, Jr., a union steward, specifically advised him on Monday, June 5, 1973,i that the newly executed contract contained a union-security provision and that he would have 90 days to join the Union "in order to work at Kuhlman Electric."2 It was Nickels' testimony that he responded by stating, "I told him that I knew I had 90 days to go into the Union and I had to go into the Union to continue working." Oliver further testified, credibly, that he reminded Nickles of this obligation nearly every day until June 17, 1973, at which time Nickles entered a hospital for surgery.3 Following hospitalization, Nickles returned to work on August 6. I credit Nickles' testimony to the effect that at some point after his return he asked Union Steward Roscoe Antel "when the 90 days were up," but that Antel replied he did not know. However, I also credit Antel's testimony that on an occasion following Nickles' return from the hospital Nickles complained to him about a messy work area, stating that he would like to file a grievance about it. Antel testified that at this time he told Nickles, "Why don't you let me go back in my tool box and get the union card," to which Nickles replied, "No, I don't want to join until I have to. I have been in the hospital and I need my money." It is undisputed that on August 27 or 28 Nickles was given a copy of the contract by Don Wall, his supervisor. Nickles testified that at this time Wall stated, "You might as well have one of these, you are going to have to join the Union anyway." Nickles said that when he asked "when is the time up," Wall responded, "I don't know, but it is soon." Nickles went on vacation on August 31 and did not return until September 10. In the meantime, specifically on September 5, Kenneth Jones, the financial secretary of the Union, ascertained that Nickels' 90 days had expired. He so notified William Luttrell, the Union's vice president, who was in charge of the Union's affairs during the absence of Union President James Wells who at this time also was on vacation. On the same date, September 5, Luttrell, Jones and members of the union bargaining committee, Robert Brown and Lenny Meyers, went to the office of Kenneth Midkiff, the company personnel manag- i All dates hereinafter refer to the year 1973 2 Credited testimony of Oliver Nickles conceded that at this time Oliver told him. "You have to go to the Union now, you have 90 days." 3 There is evidence that, before entering the hospital, Roscoe Antel, also a union steward, as well as other employees, advised Nickles of the contract requirement that he join the Union in 90 days However, in view of Nickles' er. This union delegation advised Midkiff that the 90-day period had expired without Nickles having filled his union- security obligation and that they therefore had come to ask that he take appropriate action under the contract; namely that Nickles be terminated. There is some dispute as to whether Midkiff at this time telephoned Norwood Roth, the company director of personnel who is located in Birmingham, Michigan, and whether he told the commit- tee, following his conversation with Roth, that he would in fact terminate Nickles. Whereas union witnesses testified that Midkiff telephoned Roth during this meeting, Midkiff testified that he called Roth during a later meeting with the committee on September 10. Although I am inclined to credit the testimony of Midkiff to the effect that his telephone conversation with Roth did not take place until the September 10 meeting and that at this time (September 5) he merely told the committee that he would "investi- gate" their request that Nickles be terminated, under the peculiar circumstances of this case, and for decisional purposes, I deem the really material fact to be that at this time the union committee, in fact, did request the Company to terminate Nickles for the reason previously stated. I further find that, at the very least, the union delegates left the meeting with the impression that Midkiff would give appropriate consideration to their request that Nickles be terminated. Coincidentally, Nickles and Union President Wells returned from vacation the same day; namely, September 10, a Monday. It is undisputed that Nickles had not been terminated as of this time.4 Midkiff, whose testimony clearly indicates that he did not wish to terminate Nickles because he considered Nickles to be a valuable employee, gave instructions that Wells be sent to his office when he reported to work on September 10. At the same time he instructed that Nickles be told to stand by before commencing work. In accordance with these instructions, Wells reported to Midkiff's office about 8 a.m. Midkiff advised Wells that Nickles had not signed up with the Union. Midkiff testified that he thereupon told Wells "that I felt Nickles did deserve an opportunity to sign a card or refuse it or an opportunity to refuse to sign one before we took action to terminate him." Although Wells' testimony concerning this conversation was brief and fragmentary, Wells did testify that during the conversation Midkiff mentioned that he had met with the Union the week before, but that he did not relate any details of this meeting, including the fact that the committee had requested Nickles' discharge for failure to comply with the unions security provision. Significantly, Midkiff also did not testify that he apprised Wells of the Union's prior request that Nickles be terminated under the contract. It is undisputed that upon leaving Midkiff's office Wells went to Financial Secretary Jones and told him to go upstairs and "sign Nickles up." Following this instruction, Jones found Nickles, who at this time was waiting at Midkiff's outer office, and gave him a combination union admission that he was so advised by Oliver, I do not deem it necessary to detail this testimony + Midkiff testified that he telephoned Nickles at home during Nickles' vacation period, but was unable to reach him because Nickles was out of town. He did not testify as to his purpose in calling Nickles at this time 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership application and dues-checkoff card . Nickles executed the document, whereupon Jones went to Midkiff and presented him with the dues-checkoff half of the card, which Nickles had signed . Nickles reported to his foreman, Richard Weido, that he had signed up with the Union, whereupon Weido told Nickles to go back to work. A short while later Vice President Luttrell and the other members of the union committee learned what had happened. They held a brief meeting among themselves and then advised President Wells of the action they had taken with respect to Nickles on September 5. The evidence reflects, and I find , that this was the first time Wells became apprised that the union committee had requested Nickles' termination on September 5. In any event, at this point Wells , Luttrell and the other union delegates who had attended the September 5 meeting went up to see Midkiff . Reviewing the previous events, the union representatives reiterated their request to Midkiff that Nickles be terminated because he had not signed up on a timely basis. At one point during the meeting Nickles was called in and permitted to speak on his own behalf. Wells asserted that he had been on vacation and had not been able to ascertain from anyone when the 90 days were up. Notwithstanding this protestation, however, the committee adhered to its position and insisted that he be terminated. Midkiff then asked the committee to put the request in writing, but the committee refused . At this point, and with Nickles no longer present, Midkiff telephoned Personnel Director Roth in Michigan and apprised him of the situation. Midkiff testified, "He [Roth] advised me that he felt that under the terms of the contract, we should go ahead with the Union's position and terminate his employment ...." Midkiff so advised the committee. A short while later Midkiff called Nickles into his office, advised him that he was terminated, but further stated that he could report back to work the next morning as a new employee . Nickles in fact did return to work the next morning, at which time he was rehired as a new employee and assigned to a different job on a different shift .5 Nickles also signed a second membership application and dues- checkoff authorization card at this time. C. Conclusions Citing and relying upon such cases as Rocket and Guided Missile Lodge 946, IAM, AFL-CIO (Aeroject- General Corporation), 186 NLRB 561, and Local 545, International Union of Operating Engineers, AFL-CIO (Joseph Saraceno & Sons, Inc.), 161 NLRB 1114, and N.L.R.B. v. Local 182, International Brotherhood of Teamsters [Associated Trans- port], 401 F.2d 509 (C.A. 2, 1968), enfg. 156 NLRB 335, 5 A companion case , initially consolidated with this proceeding (9-CA-8086) charged the Company with having violated Section 8(a)(3) and (1) of the Act by discharging him on September 10 at the Union's request However, the complaint and the charge upon which it was based were withdrawn (with Nickles' apprdval) on the basis that the Company later reinstated Nickles to his former position of employment with all his former rights and privileges 6 Aside from the union stewards, Nickles admitted that he also received approximately five reminders from other employees who were union adherents Concerning these conversations he testified , "They took the initiative to come up and remind me about the fact that I had to join the Union . I didn't make it known that I didn't want to be a union wherein 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, the General Counsel contends that the Respon- dent here failed to satisfy the requirement that it notify Nickles of his contract obligations so that he could take appropriate action to protect his job tenure. Under the facts of this case, I find no merit to this contention. As previously related, Union Steward Oliver notified Nickles of the 90-day requirement of the union-security clause the day after the contract was signed. Periodically thereafter, Nickles received further reminders from Oliver, Union Steward Antel, as well as from other union members concerning this requirement.6 Indeed Nickles freely admit- ted that he was aware of the 90-day requirement in the contract at or about the time the contract was signed, and he acknowledged that it was his intention to wait until the 90th day before meeting this obligation. Furthermore, in addition to informing Nickles of his obligation, Respon- dent also saw to it that he was given a copy of the contract before he went on vacation and well before the 90-day period had expired.? The contract, which is in evidence, clearly states that it was entered into and became effective on June 4, 1973. Surely, from this it would have been a simple matter for Nickles himself to determine when the 90 days expired.8 Although I can perceive that in the case of an illiterate or little educated employee a union might well have the duty to advise the employee of the exact date of the expiration period, even if this employee had the contract, this was not the case here. Nickles was an intelligent and apparently well educated employee who impressed me as being quite sophisticated in this field. I am sure that he was entirely capable of understanding the clear language of the contract. Nickles, of course, had the right to choose to wait until the 90th day before joining the Union. However, under the facts of this case, I find that the Union fulfilled its duty to advise him of the union- security requirements, and I am constrained to conclude that by waiting until the last day to meet this requirement Nickles did so at his own peril .9 The General Counsel further contends that Respondent waived its right under the union-security clause "by accepting Nickles tender of dues prior to his actual discharge." I also find no merit to this contention. Thus, although Union President Wells told Jones to sign Nickles up before his (Nickles') final termination, the record reflects, as I have previously found, that Jones was not aware of the committee's prior action on September 5 when it requested the Company to discharge Nickles for failing to comply with the union-security provision. Obviously, there could be no waiver of the committee's member-I stated that I had 90 days and when my 90 days were up, I was going tojoin the Union." T Although the contract was given to Nickles by a representative of the Company, the record reflects that this was done at the Union's behest 8 When queried as to why he did not look at the contract to ascertain for himself when the 90 days were up, Nickles replied, " Well, when I got the contract I was thinking about going on vacation I was going to see my daughter and grandchildren I wasn't thinking about the Union or anything else, and I was not a union member " 9 As previously noted, a total of I I employees, including Nickles, were not union members when the last contract was executed The other 10 became union members within a week or two thereafter. INTL. UNION, UNITED AUTOMOBILE WORKERS prior action if Wells did not have any knowledge of it. Further, Wells testified that at the time he did not "keep up with" the 90th day expiration date, that these matters were the responsibility of the financial secretary. Upon the entire record, I am persuaded that when Wells instructed Jones to sign up Nickles he did so routinely, at Midkiff's request, and without conscious regard to the problem that existed. Further, insofar as Financial Secretary Jones is concerned, Jones credibly testified that he thought Nickles had been terminated and that he believed that Nickles was being rehired as a new employee at the time he signed him up. 10 Finally, and with further regard to the General Counsel's waiver theory, I have not overlooked his citation of Colgate-Palmolive Company and International Longshore- men's & Warehousemen's Union, Local 6, 138 NLRB 1037, wherein the Board reiterated its rule that once a union accepts the tender of delinquent dues after it had requested discharge for such delinquency but before actual discharge, the Union thereby waives all rights to continue to assert dues delinquency as a ground for discharge. However, under the facts in the instant case, I do not think that Respondent can be properly charged with having in fact accepted Nickles' dues payment. With respect to the entire handling of the Nickles' situation, it was the vice president and union committee, who realistically constituted "the Union" when it lawfully sought Nickles' termination on September 5. 1 do not think that the Union should be bound by Wells' independent action on September 10 when he solicited the dues payment without knowledge of its previous action on the earlier date. In this regard it is equally important, and should be stressed, that in the very short interval of approximately 1 hour's time, "the Union" 10 1 might add that Jones , a very young man, gave me the impression as one who would follow the instructions of the union president without question As he testified, " but he [Wells ] was president, he gave me the 801 (by its vice president and committee) took immediate steps to correct the situation by consistently adhering to its unchanged position that Nickles be terminated for his dues delinquency under the terms of the contract. Indeed, had Midkiff apprised Wells of the Union's prior action when he sought to have Wells sign up Nickles on the morning of September 10, I am sure that Wells would not have acted contrary to that decision. Accordingly, and in view of the Union's prompt action in rescinding the unwitting action of Wells, I find that the circumstances do not justify a finding that Respondent in fact accepted Nickles' dues payment which Nickles had made but an hour or so earlier. CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. The Respondent has not committed unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. In sum, and in view of all the foregoing, I conclude and find that the General Counsel has not sustained the allegations that Respondent violated Section 8(b)(I)(A) and (2) of the Act in causing Nickles to be terminated. ORDER Accordingly, it is recommended that the complaint be dismissed. order and I thought they had rehired him, he was going to join the Union at that time "