King Electrical Mfg. Co.

KING ELECTRICAL MFG. CO. King Electrical Manufacturing Company and Local No. 741, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Independent. Case 19-CA-8949 May 12, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on October 14, 1976, by Local No. 741, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, herein called the Union, and duly served on King Electrical Manufacturing Company, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint on November 30, 1976, an amendment to complaint on December 8, 1976, and a second amendment to complaint on December 15, 1976, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, amendment to complaint, second amend- ment to complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the amended complaint alleges in substance that at all times material herein the Union has been the representative for the purposes of collective bargain- ing of employees in the appropriate unit; 1 on August 31, 1976, Respondent and the Union entered into a valid collective-bargaining agreement covering the unit described above; the aforesaid contract contains a valid union-security clause requiring all new employees as a condition of their employment to become members of the Union 31 days from the date of their employment; since October 7, 1976, Respon- dent has refused to comply with the provisions of the union-security clause by refusing the Union's request to discharge nine unit employees; and, by the aforesaid conduct Respondent has violated Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. Respondent filed an answer to the complaint on December 8, 1976, and a second answer to the amended complaint on January 20, 1977. Respon- dent's answers admit the Union's status as collective- The appropriate unit comprises: All production. maintenance, shipping. and receiving employees employed by the Respondent at its Seattle facility, excluding office 229 NLRB No. 91 bargaining representative and the existence of a collective-bargaining agreement, but assert that Respondent lawfully refused to comply with the Union's demand for discharge of nine employees who failed to comply with the membership require- ments of the union-security clause subsequent to the filing with the Board, on September 7, 1976, of a deauthorization petition in Case 19-UD-151. On January 28, 1977, the General Counsel filed a motion for transfer and summary judgment with a brief in support of his motion. On February 10, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's motion should not be granted. On February 18, 1977, Respondent filed a cross-motion for summary judgment and a brief opposing the General Counsel's motion and in support of its motion. 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 entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Since its certification by the Board on May 14, 1976,2 the Union has been the exclusive collective- bargaining representative for the previously de- scribed appropriate unit. The initial contract negotia- tions between the Union and Respondent culminat- ed in the signing of a collective-bargaining agree- ment, to be in effect from August 31, 1976, until March 1, 1979. This contract contains a valid union- security clause requiring new employees to join the Union within 31 days of their employment and old employees to join the Union within 31 days of the effective contract date. The clause further obligates the Respondent, within 72 hours of its receipt of a written notice and request from the Union, to terminate any employee who fails to acquire or maintain membership as required. On September 7, only a week after the collective- bargaining agreement had gone into effect, an employee filed a petition in Case 19-UD-151 seeking rescission of union-shop authority pursuant to Section 9(e)(1) of the Act. The filing of the petition was supported by a substantial percentage of unit employees. The election in Case 19-UD-151 was originally scheduled to be held on October 21, but the filing of the charge in the instant proceeding has indefinitely delayed its occurrence. On October 7, clerical employees, salesmen, guards, professional employees. and supervisors as defined in the Act. 2 All dates are hereafter in 1976 unless otherwise noted. 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the pendency of the deauthorization election, the Union gave Respondent written notice that 9 of the approximately 22 unit employees had failed within the 31-day grace period to tender the dues and initiation fees necessary to acquire or maintain union membership. Since that date, Respondent has stead- fastly refused to honor the Union's request to terminate the employment of those nine delinquent employees. The issue presented herein is whether the Respon- dent violated Section 8(a)(5) and (1) of the Act by its continuing refusal to meet the Union's demand for the termination of nine employees because of their failure to comply with the requirements of the union- security provision in the current collective-bargain- ing agreement. The General Counsel contends that under Board law a union-security clause in an operative contract remains in force and must be honored unless and until it is expressly rescinded by unit employees in an affirmative deauthorization vote. On the other hand, Respondent requests a Board ruling that "(I) where employees file a deauthorization petition prior to the expiration of the initial period in which they have to join the Union, in a new agreement, and (2) the election is delayed beyond the contractual period for joining the Union, and not due to any fault by the employees, the Union security clause should be deemed in effect suspended until the election." It is well established that an employer's refusal to implement a union-security agreement has the effect of modifying the existing collective-bargaining agree- ment as well as terminating a clause therein in derogation of the employer's bargaining obligation under Section 8(d) of the Act. Such conduct seriously impairs the effectiveness of the Union in its role as collective-bargaining representative. 3 Although we have held in Lyons Apparel, Inc., 218 NLRB 1172 (1975), that an affirmative deauthorization vote constitutes a prima facie withdrawal of the Union's right to a union-security clause, we have never intimated that the rationale underlying this ruling could be extended to justify the preelection suspen- sion of union-security requirements merely because a deauthorization petition has been filed within the first 31 days of the instituion of those requirements. On the contrary, Lyons Apparel implies the prima facie validity of a union-security clause in an enforceable collective-bargaining agreement until an affirmative deauthorization vote has actually been cast. Respondent admits that a majority of unit employ- ees approved the union-shop collective-bargaining agreement which it subsequently signed, but it contends, in spite of Board precedent, that the circumstances in this case warrant giving those employees a second chance to consider independent- ly the contract's union-security clause before it becomes effective. In support of its position, the Respondent alleges certain additional facts which the General Counsel argues are not relevant to the issue presented. In specific terms, the Respondent states that it agreed in August to sign whichever of two collective-bargaining agreements was accepted by unit employees. The two contracts were identical in content with the exception that one contained a union-security clause and the other did not. Accord- ing to the Respondent, the Union submitted only the union-shop agreement for employee approval or disapproval, although the employees were cognizant and desirous of voting on the other contract as well. As an alleged consequence of the Union's refusal to submit the open-shop contract to a vote, a majority of unit employees sought referendum on the union- security issue by supporting the filing of the deauthorization petition within a week of the beginning of the new contract term. Respondent claims that the petitioned-for election would have been held prior to the 31st. day of the new contract term if certain alleged but unspecified administrative inaction and union obstruction had not delayed proceedings in Case 19-UD-151. Under the alleged circumstances set forth above, Respondent suggests the inequity of enforcing the union-security agreement during the pendency of the deauthorization election. It contends that it is unfair to force unit employees to purchase their franchise in the election by tendering initiation fees and dues, since the election sought by a majority of them has been delayed beyond the 31-day grace period through no fault of their own. Respondent further contends that enforcement of the union-security clause would give the Union control over the election results by concomitant requests to terminate delin- quent employees, manipulation of initiation fee and dues requirements, and coercion of dues-paying employees through restrictions in union rules and regulations. We find no merit in the Respondent's position, even assuming the veracity of its additional factual allegations. The Respondent cannot successfully gloss over the determinative facts in this proceeding. It therefore admits that the current union-shop collective-bargaining agreement is valid, having been approved by an apparently uncoerced majority of unit employees and signed by the Union and Respondent. If we were to rule as requested by the Respondent, we would in effect be sanctioning an I California Blowpipe & Steel Company, Inc., 218 NLBR 736, 748 (1975). 616 KING ELECTRICAL MFG. CO. unwieldy and time-consuming bifurcated ratification process for all collective-bargaining agreements containing union-security clauses. A mere 30-percent minority of unit employees could automatically suspend the implementation of a critical term in a previously approved contract by filing a deauthoriza- tion petition within the first 31 days of the life of the contract. The Board cannot place its imprimatur on a procedure which would be so potentially disruptive of the establishment of a stable collective-bargaining relationship. The equitable concerns voiced by the Respondent in this case do not justify specially excepting it from established Board law. Having once voluntarily cast their votes in approval of an entire collective-bar- gaining agreement, unit employees have no inherent right to a second chance to consider an individual term in that agreement before it is applied to them; nor do employee petitioners for a deauthorization election have any absolute right to expect that the election will be held before they must comply with the requirements of a union-security provision. Furthermore, no presumption about the result in the election in Case 19-UD-151 can be drawn a priori from the fact that a significant number of unit employees supported the deauthorization petition. Finally, Respondent's speculative fears of union control over the results of the election may be dealt with when realized, if ever, by timely filed objections and charges of violations of the Act. For all of the aforesaid reasons, the Union was legally entitled to expect that the union-security clause in its valid collective-bargaining agreement with Respondent would be enforced during the pendency of the election in Case 19-UD-151. Since we have found Respondent's contentions to be without merit, we shall accordingly grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Washington State corporation with its principal office and place of business in Seattle, Washington, where it is engaged in the manufacturing and wholesale of electrical heating equipment. During the past 12 months, a representa- tive period, Respondent sold and shipped finished products valued in excess of $50,000 from its Seattle facility to points outside the State of Washington. During the same representative period, Respondent purchased goods and materials valued in excess of $50,000 which were shipped directly to its Seattle facility from points outside the State of Washington. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED We find that Local No. 741, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Commencing on or about October 7, 1976, and continuing thereafter, the Respondent has refused to honor the union-security provisions of a collective- bargaining agreement entered into with the Union as the exclusive representative of Respondent's employ- ees in the appropriate unit herein. Accordingly, we find that the Respondent has, since October 7, 1976, and at all times thereafter, engaged in conduct which constitutes an unfair labor practice within the meaning of Sections 8(a)(5) and (1) and 8(d) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. 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 it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW i. King Electrical Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 741, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers 617 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production, maintenance, shipping, and receiving employees employed by the Respondent at its Seattle facility, excluding office clerical employ- ees, salesmen, guards, professional 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. At all times material herein the above-named labor organization has been the exclusive representa- tive of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on or about October 7, 1976, and at all times thereafter, to honor the union-security provisions of a collective-bargaining agreement entered into with the above-named labor organiza- tion as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent 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 honor the union- security provisions of the collective-bargaining agree- ment, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in 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, King Electrical Manufacturing Company, Seattle, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to honor the union-security provisions of a collective-bargaining agreement entered into with Local No. 741, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive bargaining representative of its employees in the following appropriate unit: All production, maintenance, shipping, and re- ceiving employees employed by the Respondent at its Seattle facility, excluding office clerical employees, salesmen, guards, professional em- ployees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its Seattle, Washington, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 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 refuse to honor the provisions of the union-security clause in the collective-bar- gaining agreement which we have entered into with Local No. 741, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Independent, which acts as the exclusive representative of the employees in the bargaining unit described below. The appropriate bargaining unit is: All production, maintenance, shipping, and receiving employees employed by King Electrical Manufacturing Company in its Seattle, Washington, facility, excluding of- fice clerical employees, salesmen, guards, professional employees, and supervisors as defined in the Act. 618 KING ELECTRICAL MFG. CO. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. KING ELECTRICAL MANUFACTURING COMPANY 619