Western Block Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Western Block Company, A Subsidiary of American Hoist & Derrick Company and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America, Amalga- mated Local 686. Case 3-CA-6716 May 6, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge duly filed on August 30, 1976, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local 686, hereinafter called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint and notice of hearing on September 28, 1976, against Western Block Company, a Subsidiary of American Hoist & Derrick Company, hereinafter called Respondent. The com- plaint alleges that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) and (5) of the National Labor Relations Act, as amended, by refusing to bargain collectively with the Union as the exclusive bargaining representative of its employees. On October 14, 1976, Respondent filed an answer denying the commission of any unfair labor practic- es. On January 4 and 6, 1977, the parties executed a stipulation of facts, by which they waived a hearing before an Administrative Law Judge and the is- suance of an Administrative Law Judge's Decision and recommended Order, and agreed to submit the case to the National Labor Relations Board for findings of fact, conclusions of law, and an Order based upon a record consisting of the charge, the complaint and notice of hearing, answer to the complaint, and the stipulation of facts and exhibits attached thereto. On February 1, 1977, the Board approved the stipulation of the parties and ordered the proceeding transferred to the Board, granting permission for the filing of briefs. Thereafter, both the Respondent and the General Counsel filed briefs in support of their respective positions. 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. Upon the basis of the stipulation, the briefs, and the entire record in this proceeding, the Board makes the following: 229 NLRB No. 78 FINDINGS OF FACT I. JURISDICTION Respondent Western Block Company, a Subsidiary of American Hoist & Derrick Company, is, and at all times material herein has been, a corporation duly organized under, and existing by virtue of, the laws of the State of Delaware. Respondent has maintained its principal place of business in Lockport, New York, and is engaged in the manufacture, sale, and distribution of tackle blocks and related products. During the past 12 months, a representative period, Respondent sold and shipped products valued in excess of $50,000 from its facility in Lockport, New York, directly to points outside the State of New York. Respondent admitted, and we find, that Western Block Company, a Subsidiary of American Hoist & Derrick Company, is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED We find that International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local 686, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The facts stipulated to by the parties indicate that the Union was certified by the Board on January 24, 1945, as the exclusive bargaining representative of Respondent's production and maintenance employ- ees. At all times material herein, Respondent and the Union have been parties to a collective-bargaining agreement, which is effective from July 16, 1975, to July 21, 1978. The contract clauses in question are in pertinent part as follows: Article I Section 5(d). The Company will deduct all Union dues from the pay of each member of the Union covered by this agreement. .... Section 5(e). All deductions shall be made monthly during the second pay period of each month. Section 5(g). The sums deducted shall be remitted to the Secretary-Treasurer of Local 686 UAW not 482 WESTERN BLOCK COMPANY later than the tenth day of the following month in which such deductions are made. On May 19, 1976,1 Arbitrator Robert E. Stevens issued his opinion and award, sustaining the griev- ances of John Logan, president of Unit 7, Local 686, the bargaining unit at Respondent's facility. The arbitrator found that Logan's absences on 2 days for union business were excused absences authorized by article V, section 4(a), of the contract, which allows leaves of absence for any employee elected to union office or as a delegate to any labor activity. By letter dated June 23, Respondent notified the Union that "[i]t is the policy of the Western Block Company to make a nominal charge when [the Union] requirels] the services of our employees during working hours and off the Company premis- es." Hourly and daily amounts to be charged for such services were set forth in the letter. Enclosed with the letter was an invoice billing the Union for the services of John Logan. By invoice dated July 23, Respondent charged the Union for the services of Robert Prentice and Gary Moulden. On July 26, Respondent notified the Union that its account was past due, and further stated that if "payment is not forth coming, by return mail, we will debit your account by the above amount." On August 10, Respondent sent the Union a check for the amount of dues deducted from the employees' wages in July. However, Respondent did not remit to the Union the full amount of dues collected, but instead deducted from the dues collected the amount Respondent had previously charged the Union for the services of Logan. In late August, Respondent informed the Union that it owed Respondent for the services of Prentice and Moulden. By letter dated August 25, the Union notified Respondent that "the withholding of dues monies is in violation of [the] contract." In turn, on August 30, Respondent informed the Union that it had no choice but to debit the Union's dues collection account when the Union did not pay Respondent's invoices. Respondent further stated that such actions were not unlawful on its part, but that the Union's failure to pay Respon- dent's invoice was unlawful. In succeeding months, Respondent adhered to its policy of charging the Union for the services of employees on union business. Respondent continued to deduct from the Union's dues-checkoff collection account amounts charged to the Union for employ- ees' services. The parties stipulated that Respondent has continued such actions pending determination by the Board. i All dates are in 1976 unless otherwise indicated. B. Contentions of the Parties The General Counsel contends that Respondent has violated Section 8(aX5) of the Act by promulgat- ing and unilaterally instituting a policy of charging the Union for the services of employees engaged in union business and by offsetting the amounts charged for such services against the Union's dues- checkoff account. The General Counsel argues that an employer under a duty to bargain with a union cannot alter established employment conditions without so bargaining. According to the General Counsel, Respondent not only changed an existing condition of employment without consultation with the Union, but also failed and refused to honor the parties' existing collective-bargaining agreement by not remitting to the Union the full amount of dues checked off to the Union pursuant to that agreement. Respondent initially contends that the Board should decline to assert jurisdiction in this proceed- ing, claiming that the policies of the Act, as set out in Section 7 thereof, were not intended to apply to the facts of this case. In support of this argument, as well as its argument that it has not violated the Act, Respondent claims that its employees have not been denied their Section 7 rights. Specifically addressing the charge that it has violated Section 8(a)(5) of the Act, Respondent contends that it has bargained with the Union regarding the checkoff of dues and that such checkoff is continuing. Respondent claims that the issue of the setoff of charges against union dues is a private controversy between the parties over which the Board does not have jurisdiction. C. Analysis and Conclusions Section 8(d) of the Act provides that parties shall bargain in good faith with respect to wages, hours, and other terms and conditions of employment. Related to this duty to bargain is the "correlative obligation of an employer not to unilaterally change employment conditions without first giving the employees' collective-bargaining representative prior notice and adequate opportunity to negotiate."2 Here, Respondent, without prior notice to or consultation with the Union, changed an existing condition of employment by unilaterally promulgat- ing a policy of charging the Union for the services of employees engaged in union business. Additionally, by failing and refusing to remit to the Union the full amount of dues withheld from the unit employees' wages, as required by the parties' collective-bargain- ing agreement, Respondent has further unilaterally 2 Ladish Co., 219 NLRB 354. 356 (1975). 483 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modified the existing conditions of employment as set forth in said agreement.3 By such actions, which constitute a rejection of the principles of collective bargaining and an infringement on the Section 7 rights of its employees, Respondent has violated Section 8(a)(l) and (5) of the Act.4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that Respondent cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Respondent has, without complying with the provisions of Section 8(d) of the Act, unilaterally modified the unit employees' existing conditions of employment by instituting a policy of charging the Union for the service of employees engaged in union business and by failing to remit to the Union, as required by the parties' collective-bargaining agree- ment, the full amount of dues which it deducted from the employees' wages. We shall therefore order that Respondent recognize and deal with the Union as the exclusive bargaining representative of its employ- ees in the appropriate unit by honoring in all its terms the agreement executed by the parties on July 16, 1975. In honoring said agreement, Respondent shall continue to deduct dues from the unit employ- ees' wages and remit the full amount thereof to the Union as required by the agreement. We shall further order that Respondent remit to the Union moneys withheld from the Union's dues-checkoff collection account, together with interest thereon at 6 percent per annum. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondent Western Block Company, a Sub- sidiary of American Hoist & Derrick Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local 686, is a labor organization within the meaning of Section 2(5) of the Act. 3. All hourly production and maintenance em- ployees of Respondent, excluding office clerical employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 24, 1945, the above-named labor organization has been, and now is, the certified and exclusive representative of all the employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally modifying the unit employees' existing conditions of employment by promulgating a policy of charging the Union for the services of employees engaged in union business and by failing to remit to the Union, as required by the parties' collective-bargaining agreement, the full amount of dues deducted from the employees' wages, Respon- dent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. 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 Relations Board hereby orders that the Respondent, Western Block Company, a Subsidiary of American Hoist & Derrick Company, Lockport, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Instituting, maintaining, and enforcing its policy of charging the Union for the services of employees engaged in union business and offsetting the amounts so charged against the Union's dues- checkoff collection account without giving the Union 4 Cf. Shen-Mar Food Products, Inc., 221 NLRB 1329(1976). 484 3 Cf. Cavaler Spring Comnpany, 193 NLRB 829 (1971). WESTERN BLOCK COMPANY adequate opportunity to negotiate about such mat- ters. (b) Refusing to carry out the terms of the collective-bargaining agreement executed by Re- spondent and the Union on July 16, 1975, by failing to remit to the Union the full amount of dues deducted from the unit employees' wages, as re- quired by said agreement. The Union is the exclusive bargaining representative of the employees in the following appropriate unit: All hourly production and maintenance employ- ees employed by Respondent at its Lockport, New York, facility, excluding office clerical employees and supervisors as defined in the Act. (c) In any like or related manner failing or refusing to bargain collectively with the representative of its employees and thereby interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Comply with the terms of the collective-bar- gaining agreement executed by Respondent and the Union on July 16, 1975. (b) As required by said agreement, deduct moneys from the unit employees' wages for dues and remit the full amount thereof to the Union. (c) Remit to the Union moneys withheld from the dues-checkoff collection account, together with interest thereon at 6 percent per annum. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary to analyze the amount due under the terms of this Order. (e) Post at its Lockport, New York, facility, copies of the attached notice marked "Appendix." s Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. , In 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 EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT institute, maintain, or enforce a policy of charging the Union for the services of employees engaged in union business and offset- ting the amounts so charged against the Union's dues-checkoff collection account, without giving the Union adequate opportunity to negotiate about such matters. WE WILL NOT refuse to carry out the terms of the collective-bargaining agreement executed by Western Block Company, a Subsidiary of Ameri- can Hoist & Derrick Company, and the Union on July 16, 1975, by failing to remit to the Union the full amount of dues deducted from the unit employees' wages. The Union is the exclusive bargaining representative of the employees in the following appropriate unit: All hourly production and maintenance employees employed by Western Block Company, a Subsidiary of American Hoist & Derrick Company, at its Lockport, New York, facility, excluding office clerical em- ployees and supervisors as defined in the Act. WE WILL NOT in any like or related manner refuse to bargain collectively with the representa- tive of our employees and thereby interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL comply with the terms of the collective-bargaining agreement executed on July 16, 1975. WE WILL, as required by said agreement, deduct moneys from the unit employees' wages for dues and remit the full amount thereof to the Union. WE WILL remit to the Union moneys withheld from the dues-checkoff collection account, to- gether with interest thereon at 6 percent per annum. WESTERN BLOCK COMPANY, A SUBSIDIARY OF AMERICAN HOIST & DERRICK COMPANY 485