Baggett Industrial Constructors Inc.

BAGGETT INDUSTRIAL CONSTRUCTORS 171 Baggett Industrial Constructors Incorporated and Wil- liam T. Martin and Mobile Metal Trades Council, Party to the Contract. Case 15-CA-5519 July 17, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO leged unfair labor practices, but admits allegations of the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board (Respondent, a Mis- sissippi corporation engaged in industrial construction, in a recent annual period purchased and received goods in in- terstate commerce of a value in excess of $50,000). Upon the entire record in this case, from observation of the witnesses, and after due consideration of the brief by the General Counsel (no briefs being received from any other party), I make the following: On May 20, 1975, Administrative Law Judge Sid- ney J. Barban issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Baggett Industrial Construc- tors Incorporated, Pascagoula, Mississippi, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge : This mat- ter was heard at Pascagoula , Mississippi, on March 12, 1975, on a complaint issued on January 17, 1975, based on a charge filed by the above-named Charging Party on No- vember 18 , 1974. The complaint alleges that Respondent rendered aid, assistance, and support to the above-named Party to the Contract, in violation of Section 8(a)(2) and (1) of the National Labor Relations Act, as amended, by (1) soliciting employees to sign dues-deduction authoriza- tion forms, (2) threatening employees with loss of employ- ment if they failed to execute dues-deduction authorization forms, and (3) deducting union dues from employees' pay and paying such moneys to the Metal Trades Council "without proper authorization to make such deductions or to pay such sums." Respondent's answer denies the commission of the al- FINDINGS AND CONCLUSIONS 1. THE FACTS In August 1974, employees interviewed for employment by John Buckler, a supervisor and agent of Respondent, were informed by Buckler that Respondent was negotiat- ing with a union for a bargaining contract, but that the matter had not been concluded. The two witnesses for the General Counsel, Antonio Ramos and William T. Martin, stated that at that time they were not members of any union and apparently had little interest in becoming affili- ated with a labor organization. After these two men were hired, on September 11, 1974, they were instructed to go to Buckler's office, individually and at different times. It seems clear that on that day, Buckler was speaking to all of the production, or fabricating, employees of Respondent. During these interviews, as stated by Ramos and Martin, Buckler advised the employees that Respondent had con- cluded its negotiations with the union and had signed an agreement. He advised that the union was Iron Workers Local 798 of Mobile. Buckler did not have a copy of the agreement and apparently was unable to answer the ques- tions of the employees. He did explain that, under the con- tract, Respondent would be paying contributions for the employees into a health and welfare plan and a pension plan to which the contracting union was a party. He in- formed the employees that they would have to be union members to continue to work for Respondent, and gave them a paper authorizing Respondent to deduct dues from their pay, stating that he wanted them to sign it. Buckler stated that he had given similar talks to the other employ- ees that day. Ramos and Martin signed the proffered au- thorizations, and it is inferred that other employees who continued to work for Respondent also signed these au- thorizations. The typewritten form of the authorization signed by the employees, apparently prepared by Respondent, read as follows: Date I hereby authorize Baggett Industrial Constructors, Inc., to withhold $6.00 per week out of my pay to be paid to the Mobile Metal Ironworkers for purpose of union dues. Signature For the pay period ending September 17, 1974, Respon- dent deducted $ 18 from the pay of Ramos and the pay of Martin, retroactive to the time each was employed. Since 219 NLRB No. 24 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that time, $6 per week has been deducted. The bargaining agreement, stated to be between Respon- dent and the Metal Trades Council (referred to herein as the Union) is for a term effective July 1, 1974, and continu- ing until midnight, June 20, 1977. The only contract provi- sion therein providing for any form of union security is as follows: Article 20. On receipt of voluntary individual written authorizations signed by employees who desire to have their Union Dues deducted from their pay, the Employer will deduct from such employee's pay $6.00 per week union dues and promptly remit the same to the designated officer of the Union. Should any such employee not have sufficient earnings due to him on his first pay period, the deductions shall be made from earnings due to him on the next following pay period. The authorizations shall be irrevocable with respect to the period this contract is in effect but may be termi- nated with respect to any subsequent period by any employee by notice in writing to the Employer and the Union, given at any time within thirty-one (31) days prior to the expiration of this agreement. It is inferred that the checked-off dues are transmitted by Respondent to the Metal Trades Council for itself, or on behalf of International Association of Bridge, Structural and Ornamental Iron Workers, Local 798 (hereinafter Lo- cal 798).1 It is apparent that none of the employees have been ac- cepted into membership of either union , or have been pro- vided with any evidence of affiliation. Originally, a shop steward was appointed for Respondent's shop, but when he was promoted to the position of supervisor, Buckler in- structed the employees to elect a replacement for steward and they did so. Some of the employees have received benefits from the union health and welfare plan. When Respondent laid off some of the employees recently, Ramos , and perhaps others, went to a union hall maintained by Local 798 to register so that the Union might send them to employment. On the basis of the pleadings and the record as a whole, it is found that Mobile Metal Trades Council and Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, Local 798, are each labor organizations within the meaning of the Act, and that Local 798 is affili- ated with or is a constituent part of Mobile Metal Trades Council. To the extent that the dues deducted by Respon- dent are for the benefit of Local 798, it is inferred from all the circumstances of this case that Mobile Metal Trades Council acts as the agent of Local 798 in the collection of these dues. H. ANALYSIS AND CONCLUSIONS The Act guarantees to each employee the right to de- 1 Respondent's counsel stated that he has sometimes seen contracts in- volving the Local 798 as part of the Metal Trades Council. I note that Local 798 is a party to the Building Trades welfare fund agreement and the pen- sion plan agreement for the area involved, although not specifically as an affiliate of the Metal Trades Council. termine for himself, free from coercion , whether he shall sign a checkoff authorization or not. See Luke Construction Company, Inc., 211 NLRB 602 (1974). In the present case, Respondent gave its employees to understand that they had no alternative or choice but to authorize the checkoff or lose their jobs . By thus requiring its employees as a condition of employment to permit Re- spondent to check off dues for a labor organization, and by deducting such dues and transmitting them to the union, Respondent rendered assistance and support for that labor organization in violation of Section 8(a)(2) and (1) of the Act. See Luke Construction, supra.2 General Counsel also contends that Respondent violated the Act by agreeing to and honoring checkoff provisions which do not comply with the requirements laid down in Section 302 of the Act. However, since Salant & Salant, Inc., 88 NLRB 816 (1950), the Board has consistently held that failure to comply with the requirements of Section 302 does not constitute an unfair labor practice, and is not "even to be considered in determining whether checkoff violates Section 8 of the Act." 88 NLRB at 817. See also, Sweater Bee By Banff, Ltd., 197 NLRB 805, 811 (1972). Julius Resnick, Inc., 86 NLRB 38 (1949), cited by General Counsel, is not to the contrary. CONCLUSIONS OF LAW 1. Respondent, Baggett Industrial Constructors Incor- porated, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Mobile Metal Trades Council and International As- sociation of Bridge, Structural and Ornamental Iron Work- ers, Local 798, are each a labor organization within the meaning of the Act. 3. By directing, requiring, and coercing employees to ex- ecute checkoff authorizations permitting Respondent to deduct dues for transmittal to Local 798, and by deducting dues pursuant to such coerced authorizations, for trans- mittal to that labor organization , or to its agent, Mobile Metal Trades Council, Respondent provided that labor or- ganization with aid, support , and assistance in violation of Section 8(a)(1) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent violated Section 8(a)(1) and (2) of the Act, it will be recommended that Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. General Counsel contends that the Respondent should be required to reimburse its employees for dues checked off on behalf of Local 798, or Mobile Metal Trades Coun- cil, as discussed above. Reimbursement of dues is an ap- propriate remedy as to those employees who were directed, 2 it is also noted that, in Mississippi, it is illegal for an employer to require the payment of dues or fees to a labor organization as a condition of em- ployment. BAGGETT INDUSTRIAL CONSTRUCTORS 173 required, or coerced to execute such dues-deduction au- thorizations. However, inasmuch as orders under the Act are only remedial, such reimbursement is not appropriate as to those employees who executed such checkoff authori- zations voluntarily. I shall therefore recommend that Re- spondent be required to reimburse those employees in the former category for dues deducted from their pay by Re- spondent with interest at the rate of 6 percent per annum. See, e.g., Booth Services Inc., 206 NLRB 862 (1973); Lykes Bros. Inc. of Ga., 128 NLRB 606, 611-612 (1960). If neces- sary, the identity of those employees may be ascertained in a compliance hearing. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDERS Respondent, Baggett Industrial Constructors Incorpo- rated, Pascagoula, Mississippi, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Aiding, assisting, or supporting International Associ- ation of Bridge, Structural and Ornamental Iron Workers, Local 798, or Mobile Metal Trades Council, or any other labor organization, by directing, requiring, or coercing em- ployees to sign authorizations to Respondent to check off dues, fees, or other moneys for a labor organization, or by honoring or giving effect to any such authorizations, or by deducting such moneys from the pay of employees pur- suant to such involuntary authorizations, or by trans- mitting such deductions to a labor organization. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their right to engage in, or to refrain from engaging in, union or concerted activities or any other activities specified in Sec- tion 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the purposes of the Act: (a) Reimburse its employees for moneys illegally exact- ed from them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all per- sonnel and pay records, and any other records necessary or useful to analyze the amounts due under, and to secure compliance with, this Order. (c) Post at its operation at Pascagoula, Mississippi, cop- ies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's authorized representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any materi- al. (d) Notify the Regional Director for Region 15, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it here- by is, dismissed as to any alleged violations of the Act not found hereinabove in this Decision. 3 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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 4In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT aid, assist, or support Iron Workers Lo- cal 798 of Mobile, or Mobile Metal Trades Council, or any other union, by: (1) Directing, requiring, or coerc- ing employees to sign authorizations so that the Com- pany can check off dues, fees, or other moneys for a union; (2) honoring or giving effect to any such au- thorizations which are not wholly voluntary; or (3) deducting dues, fees, or other moneys from an employee's pay for a union, or sending such moneys to a union, unless the employee has given a wholly vol- untary authorization for that purpose. WE WILL NOT interfere with, restrain, or coerce em- ployees in the exercise of rights guaranteed under Sec- tion 7 of the National Labor Relations Act, as amend- ed, including the right to engage in union or concerted activities, and the right not to engage in such activities. WE WILL reimburse any employee who was directed, required, or coerced by the Company to sign a dues deduction authorization for Iron Workers Local 798, or Mobile Metal Trades Council, or any other union, in the amount of the dues, fees, or other moneys de- ducted pursuant to such authorizations, with interest at 6 percent per year. BAGGETT INDUSTRIAL CONSTRUCTORS INCORPORATED