Local 25, Teamsters

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 25, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Tech Weld Corporation) and Timothy D. Cook, Sr. Case 1-CB-2749 September 3, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge duly filed by Timothy D. Cook, Sr., on October 18, 1974, as amended on November 15, 1974, the General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 1, issued a complaint on December 11, 1974, as amend- ed on January 31, 1975, against Local No. 25, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as Respondent. Such complaint alleges that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) of the National Labor Relations Act, as amended, by restraining and coercing the aforemen- tioned employee in the exercise of his rights guaran- teed in Section 7 of the Act. The General Counsel argues that the Respondent has attempted and is at- tempting to collect from said employee union dues as a condition of employment, pursuant to a valid union-security clause, but retroactively for a period when no contractual obligation existed. Respondent filed an answer on December 18, 1974, denying the commission of any unfair labor practices. On April 9, 1975, the parties executed a stipulation in which they agreed to certain facts, waived a hear- ing before an Administrative Law Judge and the is- suance of an Administrative Law Judge's Decision, and submitted the case to the National Labor Rela- tions Board for findings of fact, conclusions of law, and an order based upon a record consisting of the charges, the complaint and notice of hearing, the an- swer, and the stipulation of facts. On April 18, 1975, the Board approved the stipula- tion of the parties and ordered the proceeding trans- ferred to the Board, granting permission and time for the filing of briefs. Thereafter, the General Counsel and Respondent filed briefs. 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. Upon the basis of the stipulations, the briefs, and the entire record in this proceeding, the Board makes the following findings: 1. BUSINESS OF EMPLOYER The employer is a Massachusetts corporation with its principal office and place of business at 70 Blanchard Road, Burlington, Massachusetts, en- gaged in the manufacture, sale, and distribution of metal products. The employer purchases large quan- tities of metal, used by it in the manufacture of metal products, in States of the United States other than the State of Massachusetts and causes them to be transported from and through various States of the United States to the State of Massachusetts. Employ- er sells and transports in interstate commerce, sub- stantial quantities of metal products from its plant to States other than Massachusetts. Employer annually purchases metal valued in excess of $50,000 from points outside the State of Massachusetts. The parties stipulated, and we find, that the em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and we find that it will effectuate the purposes of the Act to assert juris- diction herein.' II. THE UNFAIR LABOR PRACTICES A. Facts On April 27, 1973, the Board certified Respondent Local No. 25 as the exclusive bargaining representa- tive for the following unit of employees at the Tech Weld Corporation facility in Burlington, Massachu- setts: All production and maintenance employees of the Employer at its Blanchard Road, Burlington, Massachusetts plant, including working leaders, but excluding draftsmen, technical engineers, ar- chitects, investigators, foremen, assistant fore- men, office and clerical employees, professional employees, guards and supervisors as defined in the Act. After a series of negotiating meetings, Local No. 25 and the employer entered into a collective-bar- gaining agreement on August 29, 1973, that contains a valid union-security clause in article 2, section 1? The contract provided for wage increases for mem- bers of the unit, ranging from a minimum of 35 cents 1 Siemons Mailing Service, 122 NLRB 81 (1958). 2 This provision reads- "All present employees who are members of the Union on the effective date of this contract or the date of execution of this contraot, whichever is the later, shall remain members of the Union as a condition of employment All present employees who are not members of the Union and all employees hired hereafter shall become and remain mem- bers of the Union as a condition of employment on and after the thirtieth (30) day following the beginning of such employment or the effective date of this Contract or the date of execution of this Contract, whichever is the latest " 220 NLRB No. 16 LOCAL 25, TEAMSTERS 77 per hour to a maximum of 50 cents per hour. Twenty cents of such wage increase was retroactive to Febru- ary 15, 1973, and the remaining increase was retroac- tive to May 1, 1973. Agents of the Respondent in- formed the employees during August 1973 that they must pay back dues from May 1973. Timothy D. Cook, Sr., James Senter, Armand Du- fresne, Thomas Pinard, and Thomas J. Seeley have all paid to Respondent the initiation fee and have paid and are continuing to pay their dues obligations for the period from September 1, 1973, to the present. From and after various dates in September 1973, Re- spondent has notified each of the above-named em- ployees that he is in arrears of union dues for the period May 1, 1973, to September 1, 1973. On October 4, 1973, Respondent posted a notice on the bulletin board at the employer's facility stat- ing that employees who had not paid dues by Octo- ber 15, 1973, would be terminated under the terms of the collective-bargaining agreement. To date, no at- tempt has been made by Respondent to discharge those employees who are in arrears on their dues for the period May 1, 1973, to September 1, 1973. B. The Contentions of the Parties The General Counsel contends that Respondent cannot lawfully cause the discharge of employees for failure to tender dues for a period when there was no contract in existence with the employer. According to established precedent in this regard, his argument runs, Respondent Union can cause the employer to terminate an employee only for a refusal to tender periodic dues and initiation fees which become due during the existence of a valid union-security clause. Despite the obvious benefits derived from the retro- active wage increase in the contract, the General Counsel asserts the same does not impose an obliga- tion on the employees for the payment of dues under a retroactive application of the contract as a condi- tion of employment. For these reasons, he maintains that Respondent violated and is violating Section 8(b)(1)(A) of the Act by insisting on the payment of such dues. Respondent counters with the argument that Sec- tion 8(a)(3) of the Act establishes the effective date of the contract, rather than the date of execution, as the time when a union can require the payment of peri- odic dues as a condition of employment. Since the Board did not certify the collective-bargaining unit until April 27, 1973, Respondent submits the employ- ees involved herein owe back dues from May 1, 1973, or the date of the second retroactive wage increase under the agreement. In this connection, Respondent argues that, if a union were unable to require the payment of retroactive dues, a union would be en- couraged to strike immediately upon certification to expedite the bargaining process. C. Discussion and Conclusion We find that the date both Respondent and the employer executed the collective-bargaining agree- ment is diapositive of the issues in this proceeding. Although the wage increases negotiated therein were retroactive to February 15 and May 1, 1973, Respon- dent Union could not lawfully demand, as a condi- tion of continued employment, the payment of dues for those months elapsed before the execution of such contract. Consequently, the Respondent may only collect lawful dues and initiation fees for the time period commencing with the date of the collec- tive-bargaining agreement which contains a valid union-security clause. The Board has held that a union-security clause may not be retroactively applied? In the Namm's Inc. case, the Board reasoned: . .. back dues are plainly more that [sic] peri- odic dues or initiation fees that could lawfully be imposed by a labor organization upon em- ployees covered by a union-security agreement as a condition of obtaining membership in good standing. [102 NLRB at 467.] Respondent would have the Board differentiate between the decisions above and the instant proceed- ing due to the retroactive nature of the wage increase for the employees. In other words, the situation here is distinguishable because the workers receive mone- tary benefits in return for the payment of back dues. However, the Board rejected such a contention in International Union of District 50, United Mine Work- ers.4 In that instance, the United Mine Workers and Ruberiod executed an agreement on April 21, 1967, that was retroactive in its entirety to the beginning of the year. The Board held that the union could not demand dues from members for periods before the execution of the agreement. That decision is control- ling in this case. Accordingly, we find that Respondent violated Section 8(b)(1)(A) of the Act by threatening employ- ees with discharge for failure to pay dues under the retroactive application of the union-security clause. Upon the basis of the foregoing facts and upon the entire record in the case, we make the following: 3 Namm's Inc, 102 NLRB 466 (1953), International Union of District 50, and Local Union No 14029, International Union of District 50, United Mine Workers of America (Ruberoid Company, a Division of General Aniline and Film Corporation), 173 NLRB 87 (1968) 4 Supra, fn. 3 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent, Local No. 25, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization with- in the meaning of Section 2(5) of the Act. 2. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Local No. 25, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Burlington, Massachusetts, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Requiring employees subject to a union-securi- ty agreement authorized by Section 8(a)(3) of the Act, as a condition of employment, to pay retroactive dues or fees under express or implied threats of dis- charge. (b) In any like or related manner restraining or coercing employees of the Tech Weld Corporation, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its offices and meeting halls in Burling- ton, Massachusetts, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's official representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other ma- terial. (b) Mail to the Regional Director for Region I signed copies of the notice attached hereto as the Appendix, for posting, if the employer is willing, at the employer's facility in Burlington, Massachusetts, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to com- ply herewith. 5In the event that this 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 MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Notice to all members of Local No. 25, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, and to all employees of the Tech Weld Corporation: WE WILL NOT require employees subject to a union-security agreement authorized by Section 8(a)(3) of the Act, as a condition of employ- ment, to pay retroactive dues or fees under ex- press or implied threats of discharge. WE WILL NOT in any like or related manner, restrain or coerce employees of the Tech Weld Corporation, in the exercise of the rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in our labor organi- zation as a condition of employment, as author- ized by Section 8(a)(3) of the Act. LOCAL No. 25, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA