Steelworkers Local 4800 (George E. Failing)

STEELWORKERS LOCAL 4800 (GEORGE E. FAILING CO.) 145 United Steelworkers and Steelworkers Local 4800 (George E. Failing Co.) and Donald F. Hughes. Cases 17–CB–3803 and 17–CB–4080 September 17, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND HURTGEN On March 12, 1993, Administrative Law Judge Robert W. Leiner issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs. The Respondents, United Steelwork- ers and Steelworkers Local 4800, filed an answering brief in support of the judge’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. I. BACKGROUND The parties have stipulated that the Respondents have established and maintained a procedure implementing employee rights under Communications Workers v. Beck, 487 U.S. 735 (1988). The procedure provides for annual notice to bargaining unit employees of their right under Beck to object to the Respondents’ expenditure of funds collected under a union-security agreement on activities unrelated to collective bargaining, contract administra- tion, or grievance adjustment. This Beck notice is con- tained in the January/February issue of the Respondents’ publication, Steelabor, which is mailed to all bargaining unit employees. The Respondents’ Beck procedure requires that non- member employees who wish to file a Beck objection must do so within a window period of the first 30 days following an objector’s initial date of hire, or during the first 30 days following an anniversary date of such hir- ing. Effective January 14, 1992, the Respondents’ pro- cedure was amended to provide that a Beck objection must be filed “during the first thirty days following the individual’s initial date of hire into the [bargaining] unit or an anniversary date of such hiring; provided, however, that if the individual lacked knowledge of this Procedure, the individual shall have a 30 day period commencing on the date the individual became aware of the Procedure to perfect a notice of objection.” The General Counsel alleges that the Respondents’ Beck procedure unlawfully fails to provide notice of Beck rights—apart from its annual publication notice—to two groups of nonmember employees: (1) employees when they resign their union membership; and (2) employees when they are rehired by the Employer and choose not to join the Union. The General Counsel further alleges that the Respondents’ Beck procedure unlawfully fails to grant these two groups of nonmember employees a sepa- rate window period for the filing of Beck objections. The judge dismissed these complaint allegations, find- ing that the record was devoid of evidence that any re- hired or newly resigned employee had failed to receive notice of Beck rights via the publication Steelabor. In the absence of any affected employees, the judge addi- tionally found it unnecessary to decide whether rehired employees and newly resigned employees must be granted a separate window period for the filing of Beck objections. Our decision in California Saw & Knife Works,1 which set forth a union’s obligations under the duty of fair rep- resentation vis-à-vis Beck rights, issued after the judge’s decision in this case. In light of California Saw & Knife Works, we find that the Respondents’ Beck procedure unlawfully fails to provide a separate window period during which employees who resign their union member- ship may file objections. See Polymark Corp., 329 NLRB No. 7 (1999). We further find that the remaining complaint allegations lack merit, and we shall dismiss them. II. THE BOARD’S DECISION IN CALIFORNIA SAW & KNIFE WORKS A. Notice of Beck Rights In Communications Workers v. Beck, supra, the Su- preme Court held that the National Labor Relations Act does not permit a collective-bargaining representative, over the objection of dues-paying nonmember employ- ees, to expend funds collected under a union-security agreement on activities unrelated to collective bargain- ing, contract administration, or grievance adjustment.2 In California Saw & Knife Works, supra, the Board found that the union violated its duty of fair representation by failing to provide notice of Beck rights to unit employees covered by a union-security agreement who were not members of the union. The Board held that: when or before a union seeks to obligate an employee to pay fees and dues under a union-security clause, the union should inform the employee that he has the right to be or remain a nonmember and that nonmembers have the right (1) to object to paying for union activities not germane to the union’s duties as bargaining agent and to obtain a reduction in fees for such activities; (2) to be given sufficient information to enable the em- ployee to intelligently decide whether to object; and (3) to be apprised of any internal union procedures for fil- ing objections.[3] 1 320 NLRB 224 (1995), enfd. sub nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998). 2 487 U.S. at 752–754. 3 California Saw & Knife Works, supra at 233. 329 NLRB No. 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 146 The Board further found, however, that a union does not have an obligation under the duty of fair representa- tion to issue an additional notice of Beck rights to em- ployees at the time they resign their union membership. The Board reasoned that such an additional notice at the time of resignation was unnecessary because all unit em- ployees will have received notice of their Beck rights at least once prior to the time of their resignation, pursuant to the rules set forth in California Saw & Knife.4 As the Board has stated, the Beck “notice requirement is satis- fied by giving the unit employee notice once and is not a continuing requirement.”5 The Board explained that these notice requirements furnish significant protection to the interests of the indi- vidual nonmember unit employee vis-à-vis Beck rights, without compromising the countervailing collective in- terests of bargaining unit employees in ensuring that every unit employee contributes to the cost of collective bargaining. The Board further emphasized that a union is afforded a wide range of reasonableness under the duty of fair representation in satisfying its notice obligation. “We stress that the union meets [its notice] obligation as long as the union has taken reasonable steps to insure that all employees whom the union seeks to obligate to pay dues under a union-security clause are given notice of their Beck rights.”6 B. Window Period Requirement to File Beck Objections The Board in California Saw & Knife Works addition- ally found unlawful the requirement that Beck objections be filed during a window period, solely as applied to employees who resign their membership following the expiration of the window period. The Board held: A unit employee may exercise Beck rights only when he or she is not a member of the union. An employee who resigns union membership outside the window period is thereafter effectively compelled to continue to pay full dues even though no longer a union member, and the window period in this cir- cumstance operates as an arbitrary restriction on the right to refrain from union membership and from supporting nonrepresentational expenditures. In light of our duty to uphold the fundamental labor policy of “voluntary unionism’’ . . . we agree with the judge that the January window period, as applied solely to employees who resign their union member- ship after the expiration of the window period, con- 4 Id., 320 NLRB at 235. 5 Paperworkers Local 1033 (Weyerhaeuser Paper Co.), 320 NLRB 349, 350 (1995), enf. denied in part sub nom. Buzenius v. NLRB, 124 F.3d 788 (6th Cir. 1997), vacated mem. 525 U.S. 979 (1998). Member Hurtgen does not pass on whether a union can satisfy its “duty of fair representation” obligations by giving Beck notice only once. See California Saw, fn. 41. In this regard, he notes that the respondent here gives annual notices. 6 California Saw & Knife Works, 320 NLRB at 233. stitutes arbitrary conduct violative of the [union’s] duty of fair representation.[7] The Board clarified that the General Counsel had not alleged the window period for filing objections to be unlawful, other than in the limited circumstance involv- ing resignees, and the Board indeed noted that several courts have found permissible the use of a window pe- riod for filing objections under public sector labor law, the Railway Labor Act, and the National Labor Relations Act.8 III. THE COMPLAINT ALLEGATIONS A. Newly Resigned Employees We shall dismiss the complaint allegation that the Re- spondents’ Beck procedure unlawfully fails to provide notice of Beck rights to employees when they resign their union membership. As set forth above, the Board spe- cifically held in California Saw & Knife Works that a union’s duty of fair representation does not require the provision of Beck notice at the time of resignation from the union. Further, the record evidence establishes that the Respondents took reasonable efforts through its an- nual publication to apprise all bargaining unit employees of their Beck rights and the Respondents’ procedures for invoking their rights. The Board in California Saw and Polymark Corp. did find unlawful, however, that portion of a union’s Beck procedure which—as in this case—failed to grant em- ployees who resign their union membership a separate window period following resignation in which to file a Beck objection.9 We accordingly find the requirement set forth in the Respondents’ Beck procedure that objections be filed during a window period to be unlawful solely with respect to its failure to grant employees who resign their union membership a separate window period fol- lowing resignation in which to file a Beck objection. We note that the complaint alleges the window period to be unlawful on its face with respect to resignees, and our unfair labor practice finding is accordingly not precluded by the absence of record evidence that any employee resigned union membership during the time period cov- ered by the complaint. B. Rehired Employees The complaint additionally alleges that the Respon- dents’ Beck procedure unlawfully fails to grant employ- 7 Id., 320 NLRB at 236. A Board majority has reaffirmed this hold- ing in Polymark Corp., supra, slip op. at 3–4. 8 California Saw & Knife Works, supra at 236 (citations omitted). 9 As the Board majority noted in Polymark, supra, slip op. at 4, fn. 9, although the Seventh Circuit held in favor of a union with respect to the enforceability of a similar window period in Nielsen v. Machinists Local 2569, 94 F.3d 1107, 1116–1117 (1996), the Board was not a party to that proceeding. Further, the Seventh Circuit subsequently deferred to the Board’s administrative expertise and specifically en- forced as a reasonable statutory interpretation the finding of a window period violation in California Saw, 133 F.3d at 1017–1019. STEELWORKERS LOCAL 4800 (GEORGE E. FAILING CO.) 147 ees rehired by the Employer, and who choose not to join the Union at that time, a separate window period for the filing of Beck objections. As set forth above, the proce- dure for invoking Beck rights provides a window period for the filing of objections during the first 30 days fol- lowing the individual’s “initial date of hire into the [bar- gaining] unit or an anniversary date of such hiring.” We are faced with the question whether the clause is so clear as to preclude ambiguity as to its meaning. The starting point for such an interpretation is that an unlawful construction will not be presumed. Thus, in NLRB v. New Syndicate Co., 365 U.S. 695, 699–700 (1961), the Supreme Court stated that “we will not as- sume that unions and employers will violate [a] federal law . . . . As stated by the Court of Appeals, ‘In the ab- sence of provisions calling explicitly for illegal conduct, the contract cannot be held illegal because it failed af- firmatively to disclaim all illegal objectives.’” It is also well settled that “in contract interpretation matters, the parties’ intent underlying the language of the contract is always paramount. . . . To determine that intent, the Board will look to both the contract language and rele- vant extrinsic evidence.” Lear Siegler, 293 NLRB 446, 447 (1989).10 This analytical framework is useful by way of analogy in our disposition of the window period allegation as to rehired employees. The clause is susceptible of being lawfully interpreted to mean that a newly rehired em- ployee is granted a new window period commencing on the date of rehire, and on the anniversary date of his or her rehire. The General Counsel has introduced no evi- dence that the Respondents intend the clause to be inter- preted otherwise, or that they have applied the clause to deny a new window period to any rehired employee. Being susceptible of this lawful interpretation, and absent evidence that the provision was unlawfully applied as to rehired employees, we find that the Respondent has not unlawfully failed to grant newly rehired employees, who choose not to join the union, a separate window period for the filing of Beck objections. Under the principles set forth above, the General Counsel has not met his burden to establish that the clause is unlawful on its face as ap- plied to rehired employees. The General Counsel also alleges that the Respondents fail to provide notice of Beck rights to employees when 10 See also Painters District Council 51 (Manganaro Corp., Mary- land), 321 NLRB 158, 161 (1996), quoting Teamsters Local 982 (J .K. Barker Trucking Co.), 181 NLRB 515, 517 (1970), affd. 450 F.2d 1322 (D.C. Cir. 1971) (“[I]f the meaning of the clause is clear, the Board will determine forthwith its validity under [Sec.] 8(e); and where the clause is not clearly unlawful on its face, the Board will interpret it to require no more than what is allowed by law. On the other hand, if the clause is ambiguous, the Board will not presume unlawfulness, but will con- sider extrinsic evidence to determine whether the clause was intended to be administered in a lawful or unlawful manner. In the absence of such evidence, the Board will refuse to pass on the validity of the clause.’’ [Footnotes omitted.] they are rehired by the Employer. As discussed above in connection with the window period, the evidence does not establish that under the Respondents’ procedures rehires would not be treated as “initial” hires. Further, there is no contention that “initial” hires do not receive the required Beck notice. Accordingly, we find that the General Counsel has not shown that rehires would not, under Respondents’ procedures, receive notice of their Beck rights at the time of their rehire. Therefore, we shall dismiss this allegation.11 CONCLUSIONS OF LAW 1. George E. Failing Co. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondents United Steelworkers and Steelworkers Local 4800 are labor organizations within the meaning of Section 2(5) of the Act. 3. By maintaining that portion of their Beck procedure which prevents employees who have resigned from the Union from filing a Beck objection within a reasonable period after their union resignation, the Respondents have engaged in unfair labor practices affecting com- merce within the meaning of Section 8(b)(1)(A) and Sec- tion 2(6) and (7) of the Act. 4. The Respondents have not otherwise violated the Act as alleged in the complaint. REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondents to amend their Beck procedure to make it clear that bargaining unit employees who have resigned from the Union may file objections to the col- lection of fees for nonrepresentational expenses at any time, or, at the option of the Union, within a reasonable period specifically designated in the Beck procedure and not to be less than 30 days, after the resignation is sub- mitted. ORDER The National Labor Relations Board Orders that the Respondents, United Steelworkers and Steelworkers Lo- cal 4800, respectively located in Pittsburgh, Pennsyl- vania, and Enid, Oklahoma, their officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining that portion of their Beck procedure which prevents employees who have resigned from the 11 We shall likewise dismiss the complaint allegation that the Re- spondents violated Sec. 8(b)(2) of the Act by attempting to cause and causing the Employer to discriminate against its employees in violation of Sec. 8(a)(3) of the Act. The record contains no evidence that the Respondents requested the Employer to terminate any employee pursu- ant to the union-security clause. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 148 Union from filing a Beck objection within a reasonable period after their union resignation. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Amend their Beck procedure to make it clear that bargaining unit members who have resigned from the Union may file objections to the collection of fees for nonrepresentational expenses at any time, or, at the op- tion of the Union, within a reasonable period specifically designated in the Beck procedure and not to be less than 30 days, after the resignation is submitted. (b) Within 14 days after service by the Region, post at their business office and meeting hall copies of the at- tached notice marked “Appendix.”12 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 17, after being signed by the Respondents’ author- ized representative, shall be posted by the Respondents immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees and members are customar- ily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. (c) Sign and return sufficient copies of this notice for posting by George E. Failing Company, if willing, at all locations where notices to George E. Failing Company’s unit employees are customarily posted. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps the Respondents have taken to com- ply. MEMBER LIEBMAN, dissenting in part. I join all parts of the majority decision but one. Con- trary to the majority, I find that the requirement that Beck1 objections be filed during a window period does not unreasonably restrict the right of employees to file Beck objections, and in no sense impairs their right to resign union membership. Polymark Corp., 329 NLRB No. 7, slip op. at 5 (1999) (Members Fox and Liebman, dissenting). The Respondents allow members to resign union membership at any time. “The fact that an em- ployee may have to wait some period of time after re- signing from the union to obtain a reduction in the fees [he or she] is charged as a non-member may make resig- nation less attractive to the employee at that particular time, but that hardly means that the employee is in any 12 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 1 487 U.S. 735 (1988). sense being compelled to remain a member of the union against [his or her] will.” Id., slip op. at 5. As the Sev- enth Circuit Court of Appeals has explained in holding that a union does not violate its duty of fair representa- tion by requiring that Beck objections be filed during a window period, “[n]othing in the NLRA or in Beck con- fers a right to instantaneous action[.]” Nielsen v. Ma- chinists Local 2569, 94 F.3d 1107, 1116 (7th Cir. 1996), cert. denied mem. 520 U.S. 1165 (1997). The window period at issue in this proceeding, in my view, “fall[s] within a generous range of reasonableness” (id. at 1117) afforded unions under the duty of fair representation. I would accordingly dismiss the complaint allegation that the window period is unlawful because it does not grant employees who resign their union membership a sepa- rate, new window period following resignation in which to file a Beck objection. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT maintain that portion of our Beck proce- dure which prevents employees who have resigned from the Union from filing a Beck objection within a reason- able period after their union resignation. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of rights guaranteed you by Section 7 of the Act. WE WILL amend our Beck procedure to make it clear that bargaining unit members who have resigned from the Union may file objections to the collection of fees for nonrepresentational expenses at any time, or, at the op- tion of the Union, within a reasonable period specifically designated in the Beck procedure and not to be less than 30 days, after the resignation is submitted. UNITED STEELWORKERS AND STEELWORKERS LOCAL 4800 Francis A. Molenda, Esq., for the General Counsel. Rudolph L. Milasich Jr., Esq., of Pittsburgh, Pennsylvania, for the Respondent-Union. Hugh L. Reilly, Esq., of Springfield, Virginia, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. On January 2, 1990, Donald F. Hughes, the Charging Party, an employee of George E. Failing Company, Enid, Oklahoma, filed and served an unfair labor practice charge alleging violation of Section 8(b)(1)(A) and (2) of the Act against Respondents, United STEELWORKERS LOCAL 4800 (GEORGE E. FAILING CO.) 149 Steelworkers and Steelworkers Local 4800. On January 25, 1990, Hughes filed and served an amended charge in that case. Thereafter, on July 5, 1991, Hughes filed and served a further charge alleging violation of Section 8(b)(1)(A) and (2) against Respondents in Case 17–CB–4080. On June 12, 1992, the General Counsel issued an order con- solidating cases, consolidated complaint and a notice of hearing alleging violation of Section 8(b)(1)(A) and of the Act because Respondents, in substance, maintained an inadequate notifica- tion procedure of employee rights guaranteed under Section 8(a)(3) of the Act, as interpreted by the Supreme Court of the United States in Communications Workers v. Beck, 487 U.S. 735 (1988). On June 24, 1992, Respondents filed a timely answer, admitting certain allegations of the complaint, denying others, and denying that it committed the alleged violations of the Act. Bearing date of December 9, 1992, counsel for the General Counsel submitted a motion, with notice to and agreement of all parties herein, to stipulate the record and submit same to the decision of an administrative law judge “in lieu of a formal hearing before an administrative law judge.” Counsel for the General Counsel further requested that, upon the granting of the aforesaid motion, a date be set for the filing of briefs to the administrative law judge. The chief administrative law judge having thereafter duly designated me as the administrative law judge in this matter, on December 16, 1992, I issued an order accepting the stipulation of facts, formal documents, and General Counsel’s December 9, 1992 motion, together with any duly filed briefs, as the entire record in this matter, and further set a time for filing of briefs. Thereafter, all parties submitted briefs which have been duly considered. On the entire record as defined above, including the briefs, I make the following FINDINGS OF FACT I. JURISDICTION The Employer Engaged in Commerce The consolidated complaint alleges, the Respondents admit, and I find, that at all material times, the Employer, George E. Failing Company, a corporation, with an office and place of business in Enid, Oklahoma, has been engaged in the manufac- ture of drilling rigs. During the 12-month period ending May 31, 1992, the Employer, in the course and conduct of its busi- ness operations, sold and shipped from its Enid, Oklahoma facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Oklahoma. As Respondents concede, I find that, at all material times, the Em- ployer has been and is engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. RESPONDENTS AS STATUTORY LABOR ORGANIZATION As Respondents concede, Respondents, and each of them, are now, and at all material times have been, labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Admissions in the Pleadings and the Stipulation of Facts The complaint alleges and Respondents admit that, at all times since April 7, 1955, pursuant to Section 9(a) of the Act, Respondents jointly have been the exclusive collective- bargaining representative of all employees in the Employer in the following unit: All production and maintenance employees employed by the Employer at its Enid, Oklahoma plant, including janitors and warehousemen; but excluding all office and clerical employ- ees, Technical employees, cafeteria employees, field service men, service station attendants, guards and supervisors as de- fined in the Act. The parties stipulated that, at all material times, Respondents United Steel Workers of America, and the Employer have maintained in effect and enforced a collective-bargaining agreement covering wages, hours, and other terms and condi- tions of employment of unit employees, described above, which agreement, in article I thereof, contains the following terms: Section 7. Union Membership a. All employees hired after the date of execution of this Agreement must, after a 60-day probationary period, become and remain members of the Union in good stand- ing as a condition of employment. b. It shall be a condition of employment that all em- ployees of the Company covered by this Agreement, who are members of the Union in good standing on the effec- tive date of this Agreement, shall remain members in good standing and those who are not members on the effective date of this Agreement shall, by the 60th day following the effective date of this Agreement, become and remain members in good standing in the Union. c. The Company recognizes and will not interfere with the rights of its employees to become members of the Un- ion. It is agreed that there would be no intimidation or co- ercion of employees for membership and the Company agrees that there shall be no discrimination against any employees because of membership in the Union. B. The Beck Notification Procedure The parties further stipulated that: 8. At all material ties, Respondents have established and maintained a procedure whereby dues-paying non- member employees employed in the unit set out above . . are annually notified of their right to object, pursuant to C.W.A. v. Beck, 487 U.S. 735 (1988), to Respondents’ ex- penditure of funds collected pursuant to the section of the collective-bargaining agreement set out above in para- graph 7 on activities unrelated to collective-bargaining, contract administration or grievance adjustment. 9. The procedure of Respondents referred to above in paragraph 8 provided, from July 26, 1988, until it was amended on January 14, 1992, that nonmember employees objecting to Respondents’ expenditure of funds on activities unrelated to collective-bargaining, contract administration or grievance adjustment must do so “during the first thirty days following the objector’s initial date of hire into the USWA represented unit or during the first thirty days following an anniversary date of such hiring.’’ Effective January 14, 1992, the procedure of Respondents referred to above in paragraph 8 provides that nonmember employees objecting to Respondents’ expenditure of funds on activities unrelated to collective-bargaining, contract administration or griev- ance adjustment must do so “during the first thirty days fol- lowing either the individual’s initial date of hire into the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 150 USWA represented unit or an anniversary date of such hir- ing; provided, however, that if the individual lacked knowl- edge of this Procedure, the individual shall have a 30 day period commencing on the date the individual became aware of the Procedure to perfect a notice of objection.” 10. The Jan./Feb. 1992 Edition of Steelabor was mailed to the home of each USWA member during the week of March 6, 1992, and that Edition contains at page 23 an arti- cle on the Procedure which quotes Paragraphs 1 and 2 of the Procedure in their entirety, which sets forth the reduction percentage, and which states that a detailed breakdown be- tween representational and non-representational activities with a report by an independent auditor is available upon request.1 The Jan./Feb. 1991 Edition of Steelabor contains a substantially similar article on the then existing Procedure and was mailed to the home of each USWA member during the 1st Quarter of 1991. 11. The Procedure was adopted initially by the USWA in late 1978 and was applied through December 16, 1986, to any USWA-represented person who objected to his or her dues monies being expended for partisan political or ideological expenditures not related to collective bargain- ing. On December 16, 1986, the Procedure was amended to require that an objector be a nonmember. Prior to July 26, 1988, the Procedure required that a notice of objection be made during the first 15 days following the objector’s initial date of membership or during the first 15 days fol- lowing an anniversary date of such membership. 12. [Omitted as irrelevant] 13. During the period covered by the Complaint and the Charges, no bargaining unit employee of the Employer has resigned membership in the USWA. C. The Complaint The complaint alleges the existence of Respondents’ proce- dure of annually notifying dues-paying nonmember employees of their rights, pursuant to Communications Workers v. Beck, 487 U.S. 735 (1988), to object to the Respondents’ expenditure of funds, collected from employees pursuant to the above un- ion-security obligation, lawful under Section 8(a)(3) of the Act, on activities unrelated to collective bargaining, contract ad- ministration, or grievance adjustment, “unrelated objects.” It 1 The text of the amended procedure (amended January 14, 1992) is: USWA PROCEDURE 1. Any individual, who is not a member of the United Steelworkers of America and who is required to pay dues to the United Steelworkers of America pursuant to a contractual union security arrangement but objects to supporting partisan political or ideological expenditures by the United Steelworkers of America which are not necessarily or rea- sonably ensured for the purpose of performing the duties of an exclu- sive collective bargaining representative, shall have the right upon perfecting a notice of objection to obtain an advance reduction of a portion of such individual’s dues obligation commensurate with expen- ditures unrelated to collective bargaining as required by law. 2. To perfect a notice of objection, the individual must send an indi- vidually signed notice to the International Secretary-Treasurer during the first thirty days following either the individual’s initial date of hire into the USWA represented unit or an anniversary date of such hiring; provided, however, that if the individual lacked knowledge of this Procedure, the individual became aware of the Procedure to perfect a notice of objection. Any objection thus perfected shall expire on the next succeeding hiring anniversary date unless renewed by a notice of objection perfected as specified above. also alleges that, while this procedure also provides that non- member employees, making such objections, must do so within “the first 30 days following an objector’s initial date of hire or during the first 30 days following an anniversary date of such hiring,” the procedure is unlawfully deficient because it does not provide for a separate notice of a right to object and a sepa- rate opportunity to object to Respondents’ expenditure of funds for unrelated objects when the employee is rehired (and chooses not to join Respondents) or when a member of Re- spondents resigns his union membership. In short, therefore, the General Counsel alleges violation of Section 8(b)(1)(A) and (2) because Respondents’ Beck non- member employee notification and objection procedures do not include, for rehired employees (rehires) and employee- members who resign union membership (resignees), two sepa- rate rights: a separate notice of right to object and a separate opportunity to object when the employee enters the classifica- tions of “rehires’’ or “resignees.’’ D. The General Counsel’s Argument All parties agree that in Communications Workers v. Beck, supra, the Supreme Court held that the proviso to Section 8(a)(3) of the Act does not permit a union, over the objections of dues-paying nonmember employees, to expend funds col- lected pursuant to a union-security clause on activities unre- lated to collective bargaining, contract administration, or griev- ance adjustment. For the Union to do so, it engages in activi- ties which violates the Union duty of fair representation of nonmember employees. The General Counsel issued the instant complaint pursuant to the “guidelines,’’ issued by the Board’s General Counsel, interpreting the Beck decision and its application to the Na- tional Labor Relations Act in the light of other Supreme Court and appellate court decisions. Those decisions principally in- volve the constitutional rights of public employees objecting to union expenditure of funds secured from the employees pursu- ant to the obligations imposed by union-security clauses,2 or similar objections from employees under the Railway Labor Act. The General Counsel’s guidelines recognize that the Railway Labor Act is not necessarily on all fours with the National La- bor Relations Act, and that cases involving public employees, decided on constitutional, rather than statutory grounds, may raise formidable distinctions. The General Counsel therefore concedes that the Board and Courts may ultimately hold that some of the requirements imposed by case law developed in the public and Railway Labor sectors do not apply to the private sector under the National Labor Relations Act. I shall, never- 2 The General Counsel’s brief, from time to time, asserts that the al- leged violation of Sec. 8(b)(1)(A) and (2) of the Act here is due to Respondents’ failure to observe, for rehires and resignees, the “crystal clear guidelines of the General Counsel which calls for a separate no- tice and opportunity to object.” Indeed, the General Counsel asserts: “[T]hat simple directive has been ignored by the Respondents and constitutes the violation of these cases.’’ While the Board’s adminis- trative law judges almost always find the General Counsel’s legal opin- ions and arguments interesting, often cogent, and sometimes persua- sive, we have never yet been urged to find a violation of the Act pursu- ant to the General Counsel’s ipse dixit. Violations of the Act will be found not on the basis of Respondents’ failure to comply with the Gen- eral Counsel’s guidelines or other opinion; rather, the violations, if any, will be found because the facts, as interpreted by the Board, constitute violations of the Act. STEELWORKERS LOCAL 4800 (GEORGE E. FAILING CO.) 151 theless, assume, arguendo, that the Supreme Court’s positions with regard to the objecting rights of employees employed in the public sector and under the Railway Labor Act, cited in the General Counsel’s guidelines (attached to the General Coun- sel’s brief here), apply absolutely to private sector employees whose rights are determined under the Act. In particular, the General Counsel concedes that, since Beck involved nonmember employees who objected to the expendi- ture of funds for unrelated objects, the employee must be a nonmember of the union in order to qualify for Beck rights under the Act. There is also no dispute that employees em- ployed under a union-security clause need not be “full union members’’ in order to retain employment under the obligations of union security. The Supreme Court has defined the obliga- tion of compulsory “membership’’ for purposes of union- security obligations so that the employee can be required only to pay the usual initiation fees and dues to the union to comply with this statutory union security obligation. Actual “member- ship’’ in the union is not required. NLRB v. General Motors Corp., 373 U.S. 734 (1963). It must be noted, in particular, that the General Counsel’s complaint does not attack the quality of Beck information given annually by Respondents to nonmembers. The focus of the General Counsel’s complaint is the failure to give further notice of Beck rights to the two classes of employees specified in the complaint (rehires and resignees) and the failure to give the special opportunities to object beyond the two 30-day periods specified in Respondents’ procedure. The General Counsel takes the position that if the Union’s procedure, as here, has a “time window’’ for filing objections, the time period must be “reasonable’’; and that the rehires and resignees were not pro- vided with reasonable filing periods in light of their special status. The General Counsel’s brief cites and relies on the following specific paragraph in the General Counsel’s guideline, itself citing no case authority, to support the allegations of the com- plaint: If a new employee (who is not a member) joins the unit after the notice or if a member resigns after the notice, a separate notice and opportunity to object must be given to these em- ployees. E. The Charging Party’s Argument The Charging Party, citing the formidable fiduciary relation- ship imposed on unions by the Act, asserts that the two classifi- cations alleged in the complaint (rehires and resignees), by their very status, are “potential objectors’’ to union expenditure for unrelated objects; and that they, as “potential objectors,’’ are not full, voluntary members of the union and are entitled to special Beck treatment: separate notification and objecting rights.3 3 As above noted, the General Counsel’s position, pursuant to the General Counsel’s guidelines, is that in order to qualify for Beck rights, the employee must be a nonmember of the union (the General Coun- sel’s guidelines, p. 2). While the Charging Party concedes that under Kidwell v. Transportation Communications International Union, 946 F.2d 283 (4th Cir. 1991), full members are not entitled to Beck protec- tions it urges the Board not to adopt the Kidwell conclusions because in Kidwell, the employee relationship with the labor organization was voluntary membership and not compelled by a union-security clause under the National Labor Relations Act (C.P. Br. 10). As will be seen hereafter, it is unnecessary for me to reach or decide the question of F. Respondents’ Position The Respondents argue, broadly, that the stipulated facts do not support a finding of restraint, coercion, or discrimination of rehires or resignees. In particular, there is no allegation that any employee was being coerced or restrained and, indeed, Respondents observe that during the period covered by the complaint and charges, no bargaining unit employee has re- signed membership. Furthermore, Respondents argue that even assuming that the complaint alleges the violation of the duty of fair representation by maintaining a Beck procedure which does not allow members who resign to object outside the window period, the complaint must still be dismissed for failure of proof. Respondents urge that there are no facts in the record that any member has resigned membership; that essentially, the Board is being called upon to render an advisory opinion about a factual occurrence that has not taken place or may never take place; and that Respondents’ Beck procedures for rehires and resignees are neither arbitrary, discriminatory, nor in bad faith. Discussion and Conclusions The complaint is concerned with two problems under Beck procedures: (1) the Respondents’ obligation to give notice of Beck procedures to nonmembers; and (2) the limitations im- posed on objecting nonmembers to the use of union security- imposed contributions for purposes “unrelated’’ to collective bargaining, contract administration, or grievance adjustment. The complaint relates the above two conditions to two classes of employees: (A) rehires and (B) resignees. With regard to Respondents’ obligation to notify nonmem- bers of their Beck rights, it is stipulated that Respondents’ exist- ing procedure is to annually notify dues-paying nonmember unit employees of their Beck rights. With regard to the rights of nonmember employees to object to the expenditure of funds on “unrelated activities,’’ the stipulated facts show that from July 26, 1988, and thereafter, employees had two periods in which to object: during the first 30 days following the initial date of hire, or 30 days following the anniversary date of hiring.4 In January 1992, a third 30-day window was added: employees who lacked knowledge of the right to object received a further 30-day period. In addition, it was stipulated that in the first quarter of 1991 and again on or about March 6, 1992, all union members were notified of their Beck rights: both as to Respondents’ obligation (1) to annually notify nonmembers of the right to object by filing a notice of objection; and (2) of the two (and then three) 30-day periods in which the objections must be filed. In short, the record establishes that Respondents’ procedure provides that all nonmembers, certainly since 1988, are annu- whether Beck notification should be given to all represented employees, full members, core members, and nonmembers. 4 As above noted, it is stipulated that Respondents annually notify dues paying nonmember employees of their Beck rights. The General Counsel does not attack this procedure as such. The record is barren of when that annual notification occurs. Furthermore, the stipulated facts appear to create a substantial ambiguity concerning a material fact: since nonmember-objecting employees, certainly since 1988, have had the right to object “during the first 30 days following the objector’s initial date of hire’’ if the “annual notice’’ of Beck rights does not occur on the “initial date of hire,’’ then this first of two periods, the right to object during the first 30 days after initial hire, would become illusory. It becomes illusory if the notification date were not coincidental with the initial date of hire. In view of the position I take in disposing of the case, the resolution of this matter is not necessary. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 152 ally notified of their Beck rights to object and are provided with two 30-day (and after January 1992, a third 30-day) periods in which to perfect their objections to the Respondents’ use of union-security obligated funds for unrelated objects. In addi- tion, the record establishes that all unit union members em- ployed in the first quarter of 1991 and on or about March 1992 received the same information supplied to nonmembers.5 Counsel for the General Counsel bases his argument on the unlawful inadequacy of Respondents’ notification and objec- tion procedures on Respondents’ failure to “take into considera- tion the crystal clear guidelines of the General Counsel which call for a separate notice and opportunity to object whenever a new employee joined the unit or a member resigns from the union’’ (G.C. Br. 6). The General Counsel then states that “ that simple directive has been ignored by the Respondents and constitutes the violation in these cases.’’ The General Coun- sel’s guidelines, however, provide only: If a new employee (who was not a member) joins the unit af- ter the notice or if a member resigns after the notice, a sepa- rate and opportunity to object must be given to these employ- ees. It is evident, on comparing this the General Counsel guide- line position (unaccompanied by citation of authority) with the General Counsel’s complaint here, that the guideline specifies, inter alia, that it is the classification of nonmember “new em- ployee’’ who joins the unit (after the annual notice) who must be given both a separate notice and an opportunity to object. Similarly, the member who resigns after the notice allegedly must be given similar special treatment. The complaint, how- ever, does not address the problem of the “new employee’’; rather, the complaint alleges that these special Beck notification and objecting rights must be accorded to the class of employees who are “rehired’’ and choose not to join Respondents. While it is maybe reasonable to insist, as the guidelines insist, that a “new hire’’ (who is not already a member of the Union) who will become subject to the union-security clause following the 60th day of employment (coincidental to the ending of the 60- day probationary period) should be given notification of his Beck rights: that he may continue in employment without obli- gation to become a full union member, this may certainly not be the case with regard to “rehires.’’ In the case of new hires, the General Counsel’s guidelines may well address a problem (under the union-security obligation) which calls for immediate notification to the newly hired employee of his legal rights to avoid full union membership and to avoid paying full union dues to support political and other activities of the union unre- lated to collective bargaining, contract administration, or griev- ance adjustment. In short, the General Counsel’s complaint addresses the case of rehires whereas his legal support in the guidelines addresses new hires a classification far different than “rehires.’’ Thus, unlike the guidelines reference to and protection of newly hired employees who are not and were not members of 5 As noted, the General Counsel’s complaint is directed to the al- leged necessity for additional notice and objection rights of certain nonmember employees. To the extent that the Charging Party seeks to enlarge the scope of the complaint and remedy to include, under the rubric of “potential objectors,’’ the union members as well, I must necessarily reject that proposed enlargement as outside the scope of the General Counsel’s complaint. Operating Engineers (Tribune Proper- ties), 304 NLRB 439, 442 fn. 6 (1991). the union, former unit employees who are rehired into the unit may or may not have been union members prior to the hiatus in their employment. If they were nonmembers employed in the period as far back as 1988, they would have received, under Respondents’ Beck procedures, their annual notice of Beck rights together with a reminder of the periods of objection. If they were members of the Union in the first quarter of 1991 or on or about March 26, 1992, they were also notified by the Union of their Beck rights under the stipulated facts. Thus, the stipulated facts show that a procedure for notifying employees of Beck rights was initiated in late 1978 and, through December 16, 1986, was applied to any union- represented employee who objected to his or her dues monies being expended for partisan political or ideological expendi- tures, not related to collective bargaining. In July 1988, the objecting periods were increased from 15 to 30 days. As a consequence of the difference between newly hired em- ployees who are nonmembers and the classification of “re- hires,’’ alleged by the General Counsel’s complaint to merit special consideration, the support of the General Counsel’s complaint found in the General Counsel’s guidelines is non- existent. The guidelines refer specifically only to new hires; the General Counsel’s complaint specifies only “rehires.’’ Insofar as this abbreviated record is concerned, at least the rehires who, at all material times, were nonmembers may well have received their annual notification of Beck rights if they were employed commencing 1988. If the rehires were union members in the first quarter of 1991 and/or March 26, 1992, and then rehired, they received by mail actual notice on those dates of Respondents’ Beck procedures including notice of annual notification and the objecting periods. As opposed to this evidence that at least some rehires (members and nonmem- bers) received (or apparently received) Beck notice, there is simply no evidence in this stipulated record that any rehired employee did not receive actual notice pursuant to the Respon- dents’ procedure of annually notifying nonmembers of Beck rights including the rights to object and mailing notice in 1991 and 1992 to members. Also, members in 1991 and 1992 who may have become nonmembers, had actual Beck notice. The record, therefore, is barren of any evidence that any re- hired employee was not notified of Beck rights. The most that can be said of the General Counsel’s case, on this stipulated record, is that a rehired employee may have been a nonmember who was employed after Respondents made their annual Beck notification, then laid off and then rehired at a time prior to annual notification. But the record does not suggest, much less show, the existence of any such class of rehired employees. What the record does show is affirmative proof that Respon- dents maintained a procedure where employees who were nonmembers (and certain members) in the period since 1988, at least, received Beck notification. What the record does not show is that any employee in the protected class of “rehire,’’ failed to receive such notice. That an individual in such a class might exist is speculative. It does not form the basis for a find- ing of fact that such a class does exist. Absent evidence that such an individual or class exists, there can be not only no find- ing of fact thereof, but no legal conclusion that Respondents failed in their duty of fair representation to such a speculative class of rehired employees. The record, as it exists, shows only that Respondents maintained a procedure whereunder at least certain classes of rehired employees received actual notice of Beck rights. There is simply no evidence that any rehired em- STEELWORKERS LOCAL 4800 (GEORGE E. FAILING CO.) 153 ployee failed to receive such notice. The General Counsel’s guidelines, the authority for the instant complaint would protect new hires, not rehires, as in the complaint. Again, in the ab- sence of such evidence, there can be no finding of fact support- ing the conclusion of Respondents’ violation of their obligation of fair representation of rehired employees under the Beck re- quirement. Similarly, with regard to members who resigned their union membership, all that this record affirmatively shows is that if they were members in the first quarter of 1991 or in March 1992, they received actual notice of their Beck rights. In addi- tion, as nonmembers, they would thereafter annually receive notice of their Beck rights. The stipulated record shows that at no material time was there a resignation of membership of a unit employee. As in the case of “rehires,’’ above, all that this record affirmatively shows is that had there been some “resign- ees,’’ if they were employed at the first quarter of 1991 and on or about March 26, 1992, they received actual notice of Re- spondents Beck objecting procedures. Not only does the stipu- lated record show that in the period covered by the complaint and the charges that no bargaining unit employee resigned membership in the Union, but, as in case of “rehires,’’ there is no evidence that any such “resignee’’ did not have actual knowledge derived from notification to members (in 1991 and 1992) or notification on an annual basis to nonmembers if the resignee was at one time a nonmember. In short, the record does not show that any resignee, if there had been one, was without notice of his Beck rights. The complaint, nevertheless, may be interpreted as describ- ing a violation of Section 8(b)(1)(A) and (2) of the Act because the Respondents’ Beck procedures, operating in futuro, will not protect rehires under Respondents’ procedures. If that is the thrust of the General Counsel’s dissatisfaction with Respon- dents’ existing Beck notification and objection procedures, then the complaint should address that issue: that rehires and resign- ees, not previously on actual notice of Beck rights, are deserv- ing of special Beck notification protection under the Act. On this record, no individuals have been affirmatively shown to have not been afforded Beck rights. In order to avoid the find- ing of a violation of the Act based on speculation, the General Counsel’s allegations should be confined to the protection of any classification (otherwise entitled to Beck notification) of individuals who have not been accorded Beck notification. In this regard, it might be helpful to observe that Respon- dents’ Beck procedures are not unlawful on their face because of the omission of special protection for the two classes alleged by the General Counsel to warrant special protection. This is not a case like that of a union-security clause, unlawful on its face, which derives its coercive effect from noncompliance with the statutory proviso to Section 8(a)(3) of the Act. In view of the above findings and conclusions, I specifically refrain from reaching or deciding the issue posed by the Gen- eral Counsel’s guidelines: whether Respondents’ Beck proce- dures would be unlawful (mere annual notification to nonmem- bers) if the complaint allegation referred not to “rehires’’ but to newly hired employees who were not members of the Union. Thus, I refrain from reaching or deciding the position taken by the General Counsel guidelines: that it would be a violation of Section 8(b)(1)(A) and (2) of the Act to have Beck notification which fails to separately notify (and give separate opportunity to object) to new employees who are not members of the Union and who become unit employees after Respondents’ annual notice to nonmembers is given. I pass only on the allegations of the complaint as supported by the stipulation of facts. The stipulation shows, on the one hand, that Respondents maintain, certainly since 1988, a procedure whereunder some classes of rehires and some classes of resignees appear to have been given actual notice of their Beck rights. The stipulated facts fail to show that any rehired employee or any resignee did not have actual notice of Beck rights. A request for a finding that Re- spondents’ Beck procedures are unlawful because they fail to accord to resignees and rehires special notification rights on the occurrence of the rehiring or resignation fails to show facts on which to find a failure of the obligation of fair representation. In short, neither the allegations nor the facts disclose that under Respondents’ procedures, the members of such classifications were without actual notice of their Beck rights. Wholly apart from the problem of the notice of Beck rights is, as the General Counsel alleges, the separate problem of the opportunity to object on the part of nonmembers. On this record, in the period 1988 through 1992, nonmem- bers (resignees and rehires) had the right to object in two 30- day periods: within 30 days of the date of first hire—or rehire; and again within a 30-day period following the employees’ anniversary date of hire. The General Counsel characterizes these periods as arbitrary (G.C. Br. 6) and notes that the continued existence of these periods in Respondents’ Beck procedures “fail to take into con- sideration the crystal clear guidelines of the General Counsel which call for separate notice and opportunity to object when- ever a new employee joins the unit or a member resigns from the Union.’’ We are not dealing with abstractions or a hypothetical case. Having passed the issue of whether these two classifications of nonmembers require special notification of their Beck rights, I can find no justification in giving such classifications special periods in which to file objections apart from the procedures already prescribed by Respondents. The General Counsel’s complaint does not allege general statutory violation by virtue of the Union’s existing Beck procedures with regard to the two 30-day opportunities (now three 30-day opportunities) for ob- jecting nonmembers to perfect their objections. Rather, the complaint allegations are directed toward these two 30-day windows of opportunity, which allegedly become arbitrary and coercive only by virtue of the alleged special status of resignees and rehires. Since I have already found that the status of re- signees and rehires, under the existing stipulated facts, does not impose special notice obligations on Respondents, and since the General Counsel does not otherwise attack the objecting peri- ods of other nonmember unit employees, the question whether the existing 30-day periods would become unlawful (if rehires and resignees were not to be afforded special treatment) be- comes an academic question. I therefore need not decide whether, if resignees and rehires merited special notice re- quirements, the existing 30-day periods, during which objec- tions must be perfected, become arbitrary and, as the Charging Party appears to argue (and Respondents clearly resist) that the inability of a member who resigns, for instance, to file an im- mediate Beck objection is an unlawful impediment to resigna- tion under Pattern Makers League v. NLRB, 473 U.S. 95 (1985).6 6 There is nothing in the stipulation of facts or the complaint which actually alleges the existence of any obligation of any employee, mem- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 154 CONCLUSIONS OF LAW 1. George E. Failing Co. is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America and Steelworkers Local 4800 (Respondent Unions), and each of them, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. Respondent Unions, at all material times, have been, and jointly are, pursuant to Section 9(a) of the Act, the exclusive collective-bargaining representative of all employees’ of the Employer in the following unit: All production and maintenance employees employed by the Employer at its Enid, Oklahoma plant, including janitors and warehousemen; but excluding all office and clerical employ- ees, Technical employees, cafeteria employees, field service men, service station attendants, guards and supervisors as de- fined in the Act. ber or nonmember, to remit the “periodic dues,’’ mentioned in Sec. 8(a)(3) to the Respondents. I regard such omission as an oversight and will not dispose of the case on that ground. 4. At all material times, Respondent Unions and the above Employer have maintained and enforced a collective- bargaining agreement which lawfully requires, pursuant to Section 8(a)(3) of the Act, that the Employer’s unit employees become and remain members of Respondent Unions as a condi- tion of continued employment and to pay certain periodic dues and initiation fees to Respondent Unions. 5. The General Counsel has failed to prove, by a preponder- ance of the credible evidence, that the above-named Respon- dent Unions violated their duty of fair representation under Section 8(b)(1)(A) and (2) of the Act by failing to provide a separate notice of a right to object to Respondent Unions’ ex- penditure of funds on activities unrelated to collective bargain- ing, contract administration, or grievance adjustment when unit employees are rehired by the above Employer and choose not to join Respondents or when a member of Respondents resigns such membership. [Recommended Order for dismissal omitted from publica- tion.]