Teamsters Local 420 (Gregg Industries)

TEAMSTERS LOCAL 420 (GREGG INDUSTRIES) Building Material and Dump Truck Drivers, Local 420, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Gregg Industries. Case 21-CB- 7511 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On a charge filed on 9 October 1980 by Gregg Industries (the Charging Party or the Employer), the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on 15 January 1981 against Building Material and Dump Truck Drivers, Local 420, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Respondent or the Union). The complaint alleges that the Respondent violated Section 8(b)(1)(A) of the National Labor Relations Act.' The Respondent filed an answer to the com- plaint in which it admitted certain allegations of the complaint and denied others, including all those charging it with the commission of any unfair labor practices. On 21 July 1981 the General Counsel, the Charging Party, and the Respondent Union entered into a stipulation in which they agreed to certain facts relevant to the issues in this proceeding. They also agreed to waive a hearing before an adminis- trative law judge, the issuance of an administrative law judge's decision, and the presentation of any evidence other than that contained in the stipula- tion of facts. By order dated 18 November 1981 the Board approved the stipulation and transferred the proceeding to the Board. Thereafter, the Gen- eral Counsel, the Charging Party, and the Re- spondent filed briefs with the Board On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Charging Party, Gregg Industries, is a Cali- fornia corporation with a place of business at El Monte, California, where it has been engaged in the manufacture of iron castings. During the past year, Gregg Industries purchased and received goods and products at its California operations ' Pursuant to Sec 102 17 of the National Labor Relations Board Rules and Regulations , the Regional Director for Region 21, on 10 July 1981, filed an amendment to the complaint deleting the words , "interfered with" and "interfering with" from par 7 of the complaint 603 valued in excess of $50,000 directly from suppliers located outside the State of California. According- ly, we find, in agreement with the parties, that Gregg Industries has been at all times material an employer engaged in commerce and in operations affecting 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 in this proceeding. II. THE LABOR ORGANIZATION Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES On 17 September 1980 the Respondent Union filed a petition2 to represent all employees em- ployed by Charging Party Gregg Industries at its facility located at 10460 Hickson Street, El Monte, California, excluding all office clerical employees, professional employees, guards, watchmen, and su- pervisors as defined in the Act. At a meeting held 27 September 1980, during which union representation was discussed, the Re- spondent's business representative Horace Miran- da3 stated to a substantial number of the Employ- er's employees that if they paid dues before the Re- spondent was selected as their collective-bargaining representative the normal $180 initiation fee would be waived. At another meeting of employees held 11 October 1980, Miranda promised that the em- ployees could have a reduced initiation fee of $10 until 24 or 25 October 1980. Pursuant to Miranda's promises, a number of the employees paid $10 per month to the Respondent. Following the filing of the instant charge, the Regional Director stayed the processing of the Re- spondent's representation petition, and on 10 July 1981 the Respondent submitted a request to with- draw the petition. On 13 July 1981 the Regional Director for Region 21 issued an order permitting withdrawal of the petition with prejudice. The complaint issued 15 January 1981 and as amended 10 July 1981 alleges that the Respondent, by promising employees that they would be per- mitted to loin the Union for $10 dues rather than $180 initiation fee if they joined before the Re- spondent was selected as their collective-bargaining representative, restrained and coerced, and is re- straining and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, 2 Case 21-RC-16515 3 The parties have stipulated that, at all times material herein, Miranda was acting as an agent of the Respondent Union within the meaning of Sec 2(13) of the Act 274 NLRB No. 85 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and thereby engaged in, and is engaging in, unfair labor practices under Section 8(b)(1)(A) of the Act. IV. CONTENTIONS OF THE PARTIES The Respondent, citing NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), acknowledges that the conduct it engaged in constituted an "improper in- ducement" sufficient to invalidate an election if one had been held, but nonetheless asserts there is no basis in law for finding that such conduct also con- stitutes an unfair labor practice under Section 8(b)(1)(A) of the Act. The General Counsel, on the other hand, asserts that the Respondent's conduct violated Section 8(b)(1)(A) because it is analogous to an employer's promise of economic benefits to influence an elec- tion which in addition to being objectionable con- duct violates Section 8(a)(1). The Charging Party also analogizes the Union's conduct to an employer's unlawful promise of ben- efits and, in addition, contends that just as an em- ployer's objectionable conduct is frequently found to violate Section 8(a)(1) also, so should a union's objectionable conduct be violative of 8(b)(1)(A). It further likens the effect of the Union's conduct here to an unlawful attempt to make union mem- bership a precondition of employment; to a dis- criminatory operation of a hiring hall against non- members of the Union; and to a threat "to fire" employees who fail to join the Union before the election. V. DISCUSSION We agree with the General Counsel's and the Charging Party's contentions that the Respondent violated Section 8(b)(1)(A) of the Act by offering to waive or reduce initiation fees for those employ- ees who joined the Respondent Union prior to the election. However, we do so for reasons analogous to those relied on by the Supreme Court in NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). In Savair, the Supreme Court found that a union's offer to waive initiation fees for only those employees joining prior to the election warranted setting aside the election. Although the Court was not faced with the question of whether such an offer also violated Section 8(b)(1)(A) of the Act, the Court's analysis of the offer's impact on em- ployee rights persuades us that such an offer is also an unlawful restraint or coercion within the mean- ing of Section 8(b)(1)(A). The Court reasoned that such an offer was offensive for two reasons: First, because it amounted to endorsement buying ena- bling the union to paint a false portrait of employee support for it and in turn influence other employ- ees to give their support to the union, and second and more importantly for present purposes, such an offer had a coercive aspect to it. Thus, the Court analogized the union's offer to waive initiation fees to an employer's promise to increase fringe benefits during a union campaign-a practice found objectionable in NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), because, as quoted by the Court in Savair, employees were "not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged." NLRB v. Savair Mfg. Co., 414 U.S. 270, 280 quoting id. at 409. The Court further stated, as follows: If we respect, as we must, the statutory right of employees to resist efforts to unionize a plant, we cannot assume that unions exercising powers are wholly benign towards their an- tagonists whether they be nonunion protago- nists or the employer. The failure to sign a recognition slip may well seem ominous to nonunionists who fear that if they do not sign they will face a wrathful union regime, should the union win. [Savair at 280-281.] The above-quoted language convinces us that the Savair Court recognized that restrictive offers to waive initiation fees, when made in the course of a union campaign, have a reasonable tendency to coerce those employees who desire to refrain from joining or assisting the union at a time when they were within their Section 7 rights to do so.4 There- fore, the Respondent's conduct here was sufficient to fall within the scope of 8(b)(1)(A) proscription. Our reading of the legislative history of the "coerce" and "restrain" language of Section 8(b)(1)(A) further convinces us of this view. Thus, Senator Ball, a cosponsor of the amendment which became Section 8(b)(1)(A), said of the amendment: "What we are trying to reach here, it seems to me, is the coercive activity in which some unions and agents indulge in their organizational and election campaigns." I Leg. Hist. 1203 (LMRA 1947). In subsequent debate on the amendment, Senator Ball supplied, among others, the following example of union conduct at which the amendment was direct- ed: "If an individual is not willing to ,loin, they [the union] threaten that when they get a majority and obtain a contract they will charge him twice as high an initiation fee, or higher dues." Id. at 1200. Senator Taft, another cosponsor of the amendment, offered a similar example. He stated: "in the case of 4 See NLRB v Plasterers Local 90, 606 F 2d 189 (7th Cir 1979), Oper- ating Engineers Local 542 v NLRB, 328 F 2d 850, 852-853 (3d Cir 1964), cert denied 379 U S 826, NLRB v Service Employees Local 254, 535 F 2d 1335 (1st Cir 1976) TEAMSTERS LOCAL 420 (GREGG INDUSTRIES) unions, in the first place, there might be a threat that if a man did not join, the union would raise the initiation fee to $300, and he would have to pay $300 to get in . . . ." Id. at 1205. These two examples supplied by the chief spon- sors of the 8(b)(1)(A) amendment leave little room to doubt that the amendment was intended to pro- scribe union solicitation of membership with threats of exacting higher fees later when maintenance of membership may be a condition of employment. See Maritime Union 5 a case decided shortly after enactment of the Taft/Hartley amendment, in which the Board also reviewed the legislative his- tory of Section 8(b)(1)(A) and stated that it strong- ly suggests that Congress wanted to eliminate, among other things, "the use by unions of threats of economic action against specific individuals in an effort to compel them to join."6 The fact that here, unlike in the examples sup- plied by Senators Ball and Taft, the Union offered to reduce or waive its customary fee for those em- ployees who joined prior to the election rather than to increase its fee for those who joined after- ward does not alter the offer's coercive nature. Rather it is the suggestion of discrimination predi- cated on an employee's exercise of his Section 7 rights which underlies both types of proposals that brings each into conflict with the prohibitions of the Act. And, it is a union's potential acquisition of majority status with the impending power to en- force the higher discriminatory rate which supplies both with their coercive force and renders them unfair labor practices. We thus conclude that the Respondent's offer to waive or reduce its initiation fee for those employees who joined prior to the election violated Section 8(b)(1)(A) of the Act.7 VI. THE REMEDY Having found that the Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectu- ate the purposes of the Act. The Board, on the basis of the foregoing facts and entire record, makes the following 5 78 NLRB 971 (1948), enfd 175 F 2d 686 (2d Cir 1949) 6 Id at 985 ' In addition to the rationale of the decision, Chairman Dotson is of the view that Sec 8(b)(I)(A) is the counterpart of Sec 8(a)(1) and is as broad in scope See Helton v NLRB, 656 F 2d 883 (D C Cir 1981) Ac- cordingly, since it would violate Sec 8(a)(1) if the employer had offered an economic inducement to influence the employees' decision on union representation, it violates Sec 8(b)(1)(A) for the union to do likewise CONCLUSIONS OF LAW 605 1. Building Material and Dump Truck Drivers, Local 420, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica is a labor organization within the meaning of Section 2(5) of the Act. 2. Gregg Industries is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By inducing employees to join the Respondent by offering to waive or reduce its initiation fee for only those employees who joined the Respondent prior to the election, the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders that the Respondent, Building Material and Dump Truck Drivers, Local 420, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre- sentatives, shall 1. Cease and desist from (a) Coercively soliciting membership with offers to waive or reduce initiation fees for only those employees who join the Respondent in advance of a representation election. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its business office and meeting halls copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 21 signed copies of such notices for posting by Gregg 8 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industries if willing, in places where notices to em- ployees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT coercively solicit membership from employees of Gregg Industries with offers to waive or reduce our initiation fee for only those employees who became members in advance of a representation election. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. BUILDING MATERIAL AND DUMP TRUCK DRIVERS, LOCAL 420, INTER- NATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA