Shopmen'S Local 539 (Zurn Industries)

SHOPMEN'S LOCAL 539 (ZURN INDUSTRIES) 149 Shopmen's Local Union No. 539 (Zurn Industries, Inc.) and Bryan H. McDonald. Case 10-CB- 4530 22 January 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 12 September 1985 Administrative Law Judge Philip P. McLeod issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed excep- tions and a supporting brief. The National Labor Relations Board has delegat- ed 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 and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Shopmen's Local Union No. 539, Bir- mingham, Alabama, its officers, agents, and repre- sentatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph l(b). "(b) Causing or attempting to cause dues to be withheld from employees who have effectively re- signed their union membership." 2. Insert the following after paragraph 2(a) and reletter the subsequent paragraphs. "(b) Reimburse or refund to Dwight A. McDon- ald Jr. and Bryan H. McDonald the dues unlawful- ly collected from their paychecks for the period following their valid resignations, with interest." I The General Counsel excepts to the judge's finding that the General Counsel did not offer any evidence that the Employer withheld dues from the McDonalds' paychecks after their valid resignations from the Respondent, to his conclusion that no such dues were withheld, and to his failure to ' provide a make-whole remedy We note that Dwight A. McDonald Jr. testified that dues were still being withheld from his pay- check at the time of the hearing. Furthermore, the General Counsel in- troduced into evidence monthly billing reports submitted to the Employ- er by the Respondent which indicate that the Employer remitted the re- quested dues to the Respondent subsequent to the resignations at least through April 1985 We thus find merit in the General Counsel's excep- tions, and we Shall order the Respondent to make Dwight A McDonald Jr and Bryan ,H McDonald whole for any monetary loss they may have suffered by reason of the Respondent's unlawful conduct in causing or attempting to cause the Employer to withhold their dues after they had effectively resigned from the Respondent's membership with interest as computed in Florida Steel Corp., 231 NLRB 651 (1977) See generally Isis Plumbing Co., 138 NLRB 716 (1962) 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To 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 delay our acceptance of or refuse to give effect to valid resignations of membership from employees of Zurn Industries, Inc. or any other employer. WE WILL-NOT cause or attempt to cause dues to be withheld from employees who have effectively resigned their union membership. 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. WE WILL immediately accept and give effect to the valid resignations from membership of Dwight A. McDonald Jr. and Bryan H. McDonald. WE WILL reimburse or refund - with interest to Dwight A. McDonald Jr. and Bryan H. McDonald the dues unlawfully collected from them for the period following their valid resignations. SHOPMEN'S LOCAL UNION No. 539 J. Howard Trimble, Esq., for the General Counsel. Paul D, Supton, Esq. (VanBourg, Weinberg, Roger & Ro- senfeld), of San Francisco, California, for the Respond- ent. DECISION STATEMENT OF THE CASE PHILIP P. MCLEOD, Administrative Law Judge. This case was tried before me on June 19, 1985, in Birming- ham, Alabama. It originated from a charge filed on April 1, 1985, by Bryan H. McDonald, an individual, against Shopmen's Local Union No. 539 (Respondent). On May 15, 1985; a complaint and notice of hearing issued alleging that Respondent violated Section 8(b)(1)(A) of the National Labor Relations Act by refus- ing to permit Bryan H. McDonald and Dwight A. McDonald Jr. to resign their membership from Respond- ent or to revoke their union dues-checkoff authoriza- tions. In its answer to the complaint, as amended at the trial, Respondent admitted certain allegations including the filing and serving of the charge, its status as a labor orga- nization within the meaning of the, Act, and the status of Zurn Industries, Inc. as an employer within the meaning 278 NLRB No. 24 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act. Respondent denied having engaged in any conduct which would constitute an unfair labor practice: At the trial, all parties were represented and afforded full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence. Following the close of the trial, both parties filed timely briefs with me which have been duly considered. On the entire record in this case and from my observa- tion of the witness, I make the following FINDINGS OF FACT 1. JURISDICTION Zurn Industries, Inc. (the Employer or Zurn) is, and has been at all times material herein, a Pennsylvania cor- poration, with an office and place of business located at Pinson, Alabama, where it is engaged in the manufacture of pollution control equipment. During the past calendar year, which period is representative of all times material herein, Zurn purchased and received at its Pinson facility goods valued in excess of $50,000 directly from suppliers located outside the State of Alabama. Zurn Industries, Inc. is, and has been at all times mate- rial herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION Respondent Shopmen's Local Union No. 539 is a labor organization within the meaning of Section 2(5) of the Act. arise between the company and the union. . .." It then goes on to describe a similar procedure to be followed "should a grievance or dispute arise between the compa- ny and an employee(s)." The contract sets forth a provi- sion for final and binding arbitration in the event a griev- ance is not resolved satisfactorily. Employees who choose to have union dues deducted from their paychecks by the employer and sent directly to the Union are required to fill out and sign a "checkoff of union dues authorization." This authorization form provides in part that the employee "hereby authorize and direct the company to deduct each month from my earn- ings the amount, owed by me for membership dues to [the Union] and to transmit such amount to the union before the end of the month in which such deductions are made." The final paragraph of that authorization form provides: I reserve the right to revoke this authorization by giving a written notice to the company either during the fifteen (15) days immediately preceding any anniversary of the date shown below or during the fifteen (15) days immediately preceding the ter- mination date of any collective bargaining agree- ment between the company and the union which is applicable to me as an employee of the company; and unless or until revoked in the above-stated manner, this authorization shall continue in full force and effect. III. THE UNFAIR LABOR PRACTICES Zurn Industries, Inc. and the Respondent are parties to a collective-bargaining agreement which is effective by its terms from January 9, 1984" to January 9, 1987. This collective-bargaining agreement contains a section pro- viding for union dues-checkoff authorization and a griev- ance procedure leading to final and binding arbitration. The dues-checkoff section states in part: No employee of the company . . . shall be required, as a condition of employment . . . to join . . . or maintain membership in any labor organization. The . . . authorization directing the company to make the deductions . . . when signed by an em- ployee, shall be irrevocable for the duration of this agreement or for a period of one (1) year, whichev- er date occurs first; and in the event any such em- ployee desires to revoke such authorization on either of such dates, written notice thereof shall be given by such employee to the company in accord- ance with the applicable provisions of such authori- zation; and the company agrees to furnish the union a copy of such notice. The contractual grievance procedure defines a "griev- ance" as "`any dispute between the company and the union or an employee that an express provision of this agreement has, been` breached." (Emphasis added.) The next subsection of the grievance provision describes a procedure to be followed "should a grievance or dispute Employee Bryan H. McDonald and Dwight A. McDonald Jr. both signed such a dues authorization form on December 8, 1983. At a later date Dwight A. McDonald Jr. was promoted to a supervisory position outside the bargaining unit. At the time of this promo- tion, McDonald resigned from the Union, and he ceased paying dues. Thereafter, in either September or October 1984 Dwight A. McDonald Jr. returned to a position within the bargaining unit.' On October 10, 1984, McDonald executed a new dues-checkoff authorization form which he gave to the Union. On December 14, 1984, Dwight A. McDonald Jr. wrote to the Union stating, "I wish to withdraw my membership from [the Union]. Please pull 'my checkoff card and cut me no more union dues." On January 3, 1985, Bryan H. McDonald wrote a simi- lar letter which states in part, "I wish to withdraw from [the Union] and not be cut any more union dues as of this date 3 January 1985." By letter dated January 4, 1985, Respondent's business agent informed both McDonalds that he did not have au- thority to grant the withdrawal, but that he would ' McDonald's testimony on this point at the trial leaves no doubt whatever that McDonald returned to the bargaining unit in either Sep- tember or October, despite an arguably inconsistent earlier statement McDonald gave to an agent of the Board in which he states he returned to the unit in December It is clear from McDonald's testimony, which I credit, that in giving the statement to the Board agent he was uncertain of when he returned to the unit What is clear is that when McDonald later signed another dues authorization form in October 1984 he had al- ready returned to the bargaining unit, and I so find. SHOPMEN'S LOCAL 539 (ZURN INDUSTRIES) submit it to the Union's executive board on January 10, 1985. By letter dated February 8, 1985, both McDonalds were notified: The executive board of [the Union] has considered your letter . . . requesting withdrawal from the local union. The decision made by the Board was not to grant this request as it is untimely according to your au- thorization or deduction of union dues. You signed such authorization on . . . [date provided] .. . therefore, the next available date to withdraw is 15 days prior to . . . [date provided]. During the months o4January through May 1985, the month prior to the trial herein, Respondent continued to send monthly "bills" to the employer for union dues of various employees, including both Dwight A. McDonald Jr. and Bryan H. McDonald.2 Analysis and Conclusions The General Counsel argues that in Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), the Board concluded restrictions upon resignations of mem- bership from a union impair the fundamental language of Section 7 of the Act which grants individuals the right to refrain from union membership and activities. Similar- ly, the Supreme Court in Pattern Makers v. NLRB, 473 U.S. 95 (1985), found the Board was justified in conclud- ing that a union rule which restricts the right of the em- ployees to resign membership violates Section 8(b)(1)(A) of the Act. The General Counsel argues that by refusing to grant the requests of Dwight A. McDonald Jr. and Bryan H. McDonald to withdraw from the Union, Re- spondent unlawfully refused to recognize their attempted resignation and imposed unlawful restrictions upon their right to resign membership. Citing Steelworkers Local '450 (Asarco, Inc.), 246 NLRB 878 (1979), the General Counsel argues that if there is no provision either in the dues-checkoff authorization or the collective-bargaining agreement between the parties for financial -only mem- bership and if the authorization by its language equates dues deduction to membership, then an employee's effec- tive resignation from the Union also revokes his dues- checkoff authorization as a matter of law. Accordingly, the General Counsel argues that Respondent has unlaw- fully refused to recognize their resignation from the Union and', the revocation of their dues-checkoff authori- zations. Respondent advances several arguments, which may best be summarized as follows. First, Respondent argues that this case should be deferred to the grievance and ar- bitration procedure of the collective-bargaining agree- ment between it and the employer pursuant to the Board's recent decision in United Technologies Corp., 268 NLRB 557 (1984). Second, Respondent argues that Dwight A. McDonald Jr. and Bryan H. McDonald 2 The General Counsel faded to offer any evidence that the Employer withheld dues from the McDonalds' paychecks dung these months, and I therefore conclude that it did not. 151 never resigned or attempted to resign from the Union, but rather they simply attempted to "withdraw." Third, Respondent argues that employees who execute dues- checkoff authorizations are under no compulsion to join Respondent in the first place, and by signing such an au- thorization they have waived their right to rescind such a contractual obligation except in the manner and fashion provided for therein . Respondent offers no citation of au- thority in support of its latter arguments. In its United Technologies decision, the Board stated, inter aha: Indeed, by deciding to decline to defer cases alleg- ing violations of Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2), the General American Transporta- tion majority essentially emasculated the Board's de- ferral policy, a policy that had favorably withstood the tests of judicial scrutiny and of practical appli- cation. And they did so for reasons that are largely unsupportable. Simply stated, Collyer worked well because it was premised on sound legal and prag- matic considerations. Accordingly, we believe it de- serves to be resurrected and infused with renewed life. [Supra at 599.] In United Technologies, the Board overruled General American Transportation,' 228 NLRB 808 (1977), resur- rected the Board's Collyer deferral policy, and deferred the alleged violation of Section 8(a)(1) of the Act then before it. The primary argument advanced by the General Counsel why this case should not be deferred is that the case "involves the existence of non contractual, statuto- ry, individual rights which the Board expressly, is re- quired to protect." This argument is the very argument advanced by the dissent, and rejected by the Board ma- jority, in United Technologies. The argument, therefore, carries little weight, unless the Board again changes its position on the issue of deferral . The other arguments ad- vanced by the General Counsel for nondeferral are that the instant case does not meet the ordinary situation in which the Union is processing a grievance on behalf of members, pursuing a right arguably within the confines of the, i contract, and in this case the interests of the Union are not aligned with those of the employee filing the unfair labor practice charge. For the following rea- sons, f agree with the General Counsel , and I will not defer this matter to arbitration. I have found no Board decision since United Technol- ogies, supra, in which the Board has had occasion to ex- pound ,upon the types of cases alleging violations of Sec- tion 8(b)(1)(A) and (2) which it will defer to arbitration. It is clear that in United Technologies the Board intended to "resurrect" the Collyer doctrine ands presumably, therefore, its progeny. I therefore look to Board deci- sions issued after the Collyer decision and prior to Gener- al American Transportation, supra, in reaching my deci- sion. First, I note that under the Collyer doctrine, the Board would and did defer to arbitration issues involving union-security clauses, maintenance-of-membership clauses, and union-dues obligations. See Newspaper Guild (Enterprise Publishing Co.), 201 NLRB 793 (1973); Nor- 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD folk Portsmouth Wholesale Beer Distributors Assn., 196 NLRB 1150 (1972). I also note that in those cases the employer was a party to the Board proceeding. In other cases involving similar issues of union dues obligations the Board refused to defer where the charge had been filed with the Board by an individual, the employer was not a party to the Board proceeding, and the interests of the individuals were adverse to those of the employer and/or the union. See Machinists Lodge 1129 (Sunbeam Corp.), 219 NLRB 1019 (1975); Machinists Lodge 68 (West Winds), 205 NLRB 132 (1973); Laborers Local 573 (Mengel Construction Co.), 196 NLRB 440 (1972). In Ma- chinists Lodge 68, supra, it was specifically noted as one of the reasons for not deferring that the employer was under no obligation to represent employees in grievance processing. In the case at hand the collective-bargaining agree- ment between the parties defines a "grievance" as "any dispute between the company and the Union or any em- ployee." I do not, however, interpret this to include dis- putes between the Union and employees. Rather, the col- lective-bargaining agreement makes it very clear that grievances are intended to include disputes between the Company and the Union on the one hand, or between the Company and an employee on the other. It is for this very reason that the subsection of the grievance provi- sion immediately ' following the definition of "grievance" describes one procedure to be followed when there is adispute between the Company and the Union and an- other, similar procedure to be followed when there is a dispute "between the company and an employee(s)." The collective-bargaining agreement describes no procedure for disputes between the Union and employees. This is made equally clear in the contractual provisions describ- ing the arbitration procedure, which expressly provides that arbitration be initiated "by either party" to the agreement. No provision is made for employees to initi- ate arbitration, even in the case of disputes with the Em- ployer. The collective-bargaining agreement also pro- vides that the cost of arbitration shall be borne equally by both parties, i.e., the Employer and the Union. In the case at hand the interests of the Employees are diametri- cally opposed to those of the Union. The Employer- is not a party to this proceeding and is under no obligation to represent employees in an adjunct arbitration proceed- ing. Nor is there any reason to believe that the Employer would be willing'to bear the cost of having the issues in this case considered by an arbitrator. Therefore, al- though I recognize that the substantive issues before me could, in other circumstances, be appropriate for defer- ral, they are not appropriate in this case. The facts before me support a conclusion that Dwight A. McDonald' Jr. and Bryan H. McDonald did intend to and did effectively resign their membership in the Union on December 14, 1984, and January 3, 1985, respectively. There is no requirement that an employee use any magic words in order to effectively resign membership from the Union. The letter of Dwight A. McDonald Jr. ex- pressly refers to his desire to "withdraw my member- ship." Similarly, the letter of Bryan H. McDonald ex- pressly states a desire to "withdraw from [the Union]." I find in the circumstances of this case that both Dwight A. McDonald Jr. and Bryan H. McDonald intended to and effectively resigned membership from the Union. The Employer's facility involved herein is located at Pinson, Alabama. I take judicial notice that Alabama has a "right-to-work" law. The Alabama statute provides in part: No person shall be required by an employer to become or remain a member of any labor union or labor organization as a condition of employment or continuation of employment. No employer shall require any person, as a condi- tion of employment or continuation of employment, to pay any dues, fees or other charges of any kind to any labor union or labor organization. The simple fact is that Respondent is attempting to do indirectly what it cannot do directly, i.e., limit or impede a member's resignation from the Union by application of language in the dues-checkoff authorization form rather than through a union-security clause which would run counter to the Alabama "right to work" law. As the Board has noted, "When a Union seeks to delay or oth- erwise impede a member's resignation, it directly impairs the employee's Section 7 right to resign or otherwise re- frain from union or other concerted activities." Machin- ists Local 1414 (Neufeld Porsche Audi), supra; see also Newspaper Guild Local 47 (Pulitzer Publishing Co.), 272 NLRB 1195 (1984). By refusing to recognize the resigna- tions of Dwight A. McDonald, Jr. and Bryan H. McDonald, Respondent has violated Section 8(b)(1)(A) of the Act. The dues-checkoff authorization herein directs deduc- tion of amounts "owed by me for membership dues," making the payment of dues a quid pro quo for union membership. Therefore, the General Counsel argues, these dues-checkoff assignments were revoked as a matter of law at the time Dwight A. McDonald Jr. and Bryan H. McDonald effectively resigned from Respond- ent's membership. Machinists Local 2045 (Eagle Signal), 268 NLRB 635, 637, 638 (1984). Accordingly, by re- questing Zurn to continue dues checkoff after the McDonalds had effectively resigned membership, Re- spondent further violated Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. Zurn Industries, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) 'of the Act. 2. The Respondent, Shopmen's Local Union No. 539, is a labor organization within, the meaning of Section 2(5) of the Act. 3. By refusing to give effect to the valid resignations of membership by Dwight A. McDonald Jr. and Bryan H. McDonald, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By attempting to cause an employer to withhold dues of employees who had effectively resigned from Respondent, where the employees' dues-checkoff author- SHOPMEN'S LOCAL 539 (ZURN INDUSTRIES) 153 ization was in consideration for union membership, Re- spondent violated Section 8(b)(1)(A) of the Act. 5. The unfair labor practices which Respondent has been found to have engaged in, as described 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 com- merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall recommend that it be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Shopmen's Local Union No. 539, Birmingham, Alabama, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Delaying its acceptance of and refusing to give effect to valid resignations from membership by employ- ees of Zurn Industries, Inc. or any other employer. 3 If no exceptions are filed as provided by Sec 10246 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (b) Attempting to cause dues to be withheld from em- ployees who have effectively resigned their union mem- bership. (c) 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) Accept and give effect to the valid resignations from membership of Dwight A. McDonald Jr. and Bryan H. McDonald.4 (b) Post at its offices and halls, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized repre- sentative, 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 materi- al. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 4 The record evidence does not suggest that the discrimmatees suffered any financial loss because of Respondent's illegal activity, and for this reason I do not include a make-whole remedy in my recommended Order. 5 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 Nation- al 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 "