Iron Workers Local 455 (Precision Fabricators)

IRON WORKERS LOCAL 455 (PRECISION FABRICATORS) 385 Shopmen's Local Union No 455, International Asso ciation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Precision Fabrica tors, Inc) and Samuel G Porter and Daniel Pounds Cases 29-CB-6372-1 and 29-CB- 6372-2 October 19 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 27 1987 Administrative Law Judge Edwin H Bennett issued the attached deci lion The Respondent filed exceptions and a sup porting 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 brief and has decided, to affirm the judge s rulings findings I and conclusions and to adopt the recommended Order unlawfully attempted to cause Precision Fabricators Inc (Employer) to discharge Porter and Pounds The critical issue is whether the Union lawfully could condition em ployment on retroactive application of a union security clause to members who had been on strike for a succes sor agreement On the entire record including my observation of the demeanor of the witnesses and after due consideration of Respondents brief and argument of the parties I make the following FINDINGS OF FACT I JURISDICTION It is admitted that the Employer a New York corpo ration located in Garden City Nassau County New York is engaged in the manufacture sale and distribu tion of sheet metal and related products with in excess of $50 000 annual purchases of sheet metal and other prod ucts delivered to it in interstate commerce directly from outside the State of New York It further is admitted and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent Shopmen s Local Union No 455 International Association of Bridge Structural and Ornamental Iron Workers AFL-CIO Garden City New York its officers agents and representatives shall take the action set forth in the Order In adopting the judges finding that the Respondent unlawfully de manded union dues from the Employer during a contract hiatus when there was no union security agreement in effect we do not rely on the portion of his discussion of Sea Land of California 197 NLRB 125 (1972) which refers to the applicability of a 30-day grace period because the record and the issues in this proceeding do not involve the application of such period Elizabeth Orfan Esq for the General Counsel Vicki Erenstein Esq (Sipser Weinstock Harper & Dorn) for the Respondent DECISION STATEMENT OF THE CASE EDWIN H BENNETT Administrative Law Judge On 30 June 1986 unfair labor practice charges were filed by Samuel G Porter and Daniel Pounds against Shopmen s Local Union No 455 International Association of Bridge Structural and Ornamental Iron Workers AFL- CIO (Respondent or the Union) which led to the issu ance of an order consolidating cases consolidated com plaint and notice of hearing (complaint) on 14 August 1986 The hearing was conducted on 1 June 1987 In Brooklyn New York on the allegation that the Union II THE ALLEGED UNFAIR LABOR PRACTICES The Union has been certified as the exclusive collec tive bargaining representative of the Employers produc Lion and maintenance employees and truckdrivers about 50 in number since about the mid 1970s The parties ne gotiated several contracts which according to William Colavito the union president always had been preceded by a strike The 1982 contract which expired on 28 Feb ruary 1985 contained inter alia a valid union security clause and a dues checkoff provision On expiration of the contract the Union struck for a new agreement The unit employees including Porter and Pounds had authorized that strike by secret ballot election Colavito informed the employees that during the period of the strike they would be liable for contin ued payment of dues although at a reduced rate of $15 a month The strike was 100 percent effective and lasted until 19 August 1985 when a memorandum of agreement was executed for a new contract to last until 30 June 1988 A formal contract embodying this understanding was entered into on 18 April 1986 The memorandum of 19 August extended the expired agreement with modifications in certain areas (e g wages medical coverage etc) By implication among the expired provisions incorporated into the new agree ment were union security and dues checkoff There is no evidence that any agreement was reached before 19 August on union security or for that matter any other provision and certainly there is no evidence that em ployees were advised before 19 August of any such agreement The formal agreement executed 18 April 1986 recites in its opening paragraph that it is effective as of the first day of March 1985 and contains at sec tion 4(A) and (B) the following union security provi sions 291 NLRB No 66 386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (A) Each of the Company s employees included in the bargaining unit described and set forth in Section I hereof shall as a condition of employ ment be or become a member of the Union not later than the thirty first day following the effective date of this Agreement or not later than the thirty first day following the beginning of his or her em ployment whichever is the later and each such em ployee shall as a condition of continued employ ment remain a member of the Union in good stand ing to the extent authorized by Section 8(a)(3) of the Labor Management Relations Act 1947 (B) Upon receipt of a written notice from the Union that an employee had not acquired member chip in the Union or has not maintained his or her membership in good standing therein as provided for in Subsection (A) above the Company shall notify such employee that as a condition of employ ment he or she must comply with the provisions of Subsection (A) above and unless notified by the Union that the employee has complied with the re quirement the Company shall after five (5) work ing days from the original notice from the Union discharge such employee The agreement also provides for deduction of union dues from wages for those employees who have fur nished written authorization The record is silent about whether Porter and Pounds provided such authorization although it is clear that since September 1985 dues de ductions have been made and there is no suggestion that such conduct has been done in an unlawful manner Unit employees returned to work over a 2 week period beginning 19 August 1985 and the Employer re sumed dues deduction in September of that year pursuant to the concededly valid union security and dues checkoff provisions in the new agreement Pounds who returned to work the first week and Porter who returned the second week never terminated their union membership Nevertheless both men refused to pay dues while on strike and as a consequence they now are considered by the Union to be delinquent for the 5 months of March through July 1985 with each one owing $75 for that period Because employees were not at work during the strike it goes without saying that the Employer did not deduct or transmit any dues on behalf of any employee for this period of time Union records however are maintained in such a manner that dues receipts are allo cated to the oldest delinquency a circumstance that ac counts for union records reflecting dues payments cred ited to the accounts of Porter and Pounds for the strike period It is undisputed though that the Union s demand for dues payments described below covers the period when the employees were on strike On 21 May 1986 Frank Hernandez the Union s finan cial secretary treasurer sent two letters to the Employer (one regarding Porter and one regarding Pounds) as fol lows Unless we receive the amount of $75 00 by June 2 1985 he is to be removed from the job in accord ance with Section 4A and B of the existing con tract I trust that this will not be necessary There is no evidence that the Union ever informed the two employees of their alleged delinquency nor has the Union particularized to the employees or the Employer how the $75 was calculated However as noted the de linquencies were caused by their failure to pay dues di rectly to the Union for the 5 month strike period The Employer by its attorney responded by letter dated 28 May 1986 which stated in pertinent part that the Employers records showed all proper dues have been deducted from his pay and forwarded to the Union for the entire period of time in question Concerning Porter the letter stated that the Employer employed a Sam Porter but not a Joseph Porter the name recited in the Union s letter and that Porter s dues payments were current for the period of his employment' The letter closed with the statement that the Employer does not intend to remove either employee from his job pursuant to your request And the Employer did not do so III DISCUSSION A Position of the Parties The General Counsels position is that union member ship can be required as a condition of employment only when authorized by a valid agreement and that no such agreement existed for the 5 months the employees were on strike Therefore the Unions demand on the Em ployer to deduct dues for the two employees for the period when there was no agreement and when they were not even at work violated well established law Respondent views the case in an entirely different pos ture It argues that the contract including the union se curity obligation negotiated after the strike had retroac tive application and therefore had continuing effect through the strike period It further claims that Board law forbidding retroactive application of union security clauses applies only to situations where there is an initial agreement or the employees are newly hired or the em ployees effected had not been union members Unlike those situations this case the argument continues in volves a successor agreement covering Porter and Pounds both of whom had retained membership through out the hiatus period (which coincides with the strike period) Respondent further argues that its conduct was lawful because Porter and Pounds had executed checkoff authorization which remained valid that before the strike they were notified of the dues requirement and as sented to the obligation and they participated in the rati fication of the new agreement Respondent asserts that the foregoing circumstances distinguishes this case from those relied on by the General Counsel Respondent does not address the fact that the two employees did not work for the period for which dues are sought Its argu It has come to our attention that [Pounds/Porter] who is in your employ has failed to pay his dues (5) five months in arrears total $75 00 as required ' There does not appear to be any question of mistaken identification and presumably the Union s letter of 21 May was intended to refer to the Samuel Porter named in the complaint IRON WORKERS LOCAL 455 (PRECISION FABRICATORS) 387 ment is that as union members they were obligated to pay dues during the strike and that this obligation could be enforced by way of the union security clause even as here one applied retroactively B Concluding Findings Before turning to the arguments of the parties a threshold question is whether the Union s letter of 21 Ma) 1986 requesting that Porter and Pounds be fired be cause of their failure to pay dues pursuant to the union security clause constitutes an attempt to cause within the ambit of Section 8(b)(2) because the Union s demand was unsuccessful and therefore did not cause a discharge The Board has spoken to this issue and has held that where as here statements which contain directions or instructions enjoy no privilege under Section 8(c) but rather fall within the attempt to cause language of Section 8(b)(2) Bakery Workers Local 173 (Continental Baking) 128 NLRB 937 939 (1960) I find that the Union s letter stating that Porter and Pounds were to be removed from the job unless the dues delinquency was paid by 2 June 1985 constitutes a direction satisfying the attempt to cause language of Section 8(b)(2) I further find that the General Counsel correctly argues that the principles governing the circumstances of this case are well settled matters of law which compel a finding of violation as alleged For a union to require the payment of dues as a condition of employment there must be in effect a valid union security agreement cover ing the period for which dues are demanded and that such agreement cannot be inferred by the mere fact that an expired collective bargaining agreement contained a union security provision i e such provision does not survive an expired agreement but must be newly negoti ated Chestnut Hill Bus Corp 270 NLRB 212 (1984) Furthermore it is equally well settled that union secu my provisions which condition employment on payment of dues will not be given retroactive effect to cover a period of time when there was no such agreement even where the uncovered timeframe was occasioned by a hiatus during which the parties were negotiating a suc cessor agreement and regardless of the existence of a strike Transportation Communications Local 1937 (NCR Corp) 235 NLRB 666 (1978) In the instant case the union security requirement ter minated along with expiration of the collective bargain ing agreement on 28 February 1985 A successor agree ment was not reached until 19 August 1985 at which time a new agreement was executed During that hiatus no agreement existed and therefore no employee even one who worked in that period let alone one who was on strike could be required to maintain membership as a condition of employment Respondents argument that these time honored rules did not apply to Porter and Pounds and that when the new agreement was reached it could be retroactively applied to them because they never resigned their membership and were not newly hired employees simply is contrary to Board law In Teamsters Local 70 (Sea Land of California) 197 NLRB 125 (1972) the parties negotiated a successor col lective bargaining agreement which was signed on 26 October 1970 to replace an agreement that had expired on 31 March 1970 The new agreement including a union secunty provision was given retroactive effect to 1 April 1970 Employee Reliford a union member and employee of the company since 1963 became delinquent in dues dunng the hiatus for which reason he was sus pended from membership on 30 September 1970 On 10 November 1970 a few weeks after the new agreement had been executed he was unlawfully fired at the union s request because of this delinquency that arose during the hiatus The union was held to have violated the Act be cause it was reasoned that [e]mployees are entitled under Section 8(a)(3) of the Act to a 30 day grace period from the date the agreement actually became of fective which is the execution date of October 26 1970 and not the retroactive effective date of April 1 1970 Id at 128 The fact that Reliford continued at work during the hiatus unlike Porter and Pounds who were on strike only serves to highlight the illegality of Re spondent s actions here At least in Reliford s case he continued to earn wages under an extended interim agreement from which dues could be deducted How much more egregious under the statute for the Union here to demand a deduction from later wages for past dues accrued by employees while not at work as a condi tion for returning to work after the strike Respondent cites no authority contra in support of the several claimed exceptions to the rules recited here barring ret roactive application of union security provisions In rejecting the various defenses I have assumed ar guendo the assertions for which there is no record sup port that Porter and Pound had assented to retroactive application of the union security provision Such assent would be legally irrelevant to the statutory issues in this case as is the further claim which again has no record support that the checkoff authorizations of Porter and Pounds remained in effect dunng the strike period Whether that is so has no bearing on their right to remain free of union dues as a condition of employment during the period when a collective bargaining agree ment containing a valid union secunty clause is not in effect Nor is the Union s related argument that it acted law fully because the payments of moneys to it by the Em ployer were in accordance with the requirements of Sec tion 302(4)(c) germane to the issues in this case Assum ing the argument factually is correct only serves to save the parties from a charge of criminal conduct However compliance with Section 302 does not create an inde pendent right in the Union to demand dues payments as a condition of employment which are not otherwise in accord with the rights of employees guaranteed by Sec tion 8(a)(3) and (b)(1)(A) and (2) of the Act In any event a checkoff authorization simply is a contract be tween the employer and employee to provide for an as signment of wages Machinists Local 2045 (Eagle Signal) 268 NLRB 635 637 (1984) Although the language of the checkoff in the instant case is not in evidence the Union does not suggest that the ones signed by Porter and Pounds somehow granted any additional benefits to the Union or waived the employees statutory rights Moreover as previously noted even assuming the physi 388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cal existence of a wage assignment contract during the hiatus that contract was not capable of performance by the parties that the employees were not receiving wages because they were on strike It hardly follows as Re spondent argues that these wage assignments can pro vide a lawful basis for its conduct in issue here There fore the Union has violated Section 8(b)(1)(A) and (2) as alleged in the complaint CONCLUSIONS OF LAW 1 Precision Fabricators 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 455 International Association of Bridge Structural and Orna mental Iron Workers AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 The Respondent Union s attempt to cause the Em ployer to discharge Samuel G Porter and Daniel Pounds violated Section 8(b)(1)(A) and (2) of the Act because it attempted to cause an employer to discriminate regard ing the tenure of employment of its employees in viola tion of Section 8(a)(3) of the Act thereby encouraging membership in Respondent Union 4 The Respondent Union s aforesaid acts and conduct are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices I shall recommend that it be ordered to cease and desist and to take certain affirma tive action designed to effectuate the policies of the Act Accordingly it is recommended that Respondent notify the Employer in writing with a copy to Samuel G Porter and Daniel Pounds that it does not seek their dis charge or any deduction from their wages for any claimed dues delinquency Respondent also shall remove from its files and ask the Employer to remove from its files any reference including its letter of 12 May 1986 to its demand for the unlawful discharge of Porter and Pounds and notify said employees in writing that it has done so and that it will not use this unlawful request against them in any way The prayer for relief in the complaint requests that the remedy include authorization for discovery proceedings pursuant to the Federal Rules of Civil Procedure in order to secure compliance with any order of the Board The General Counsel does not contend that there are any special circumstances here present necessitating de parture from the traditional remedy in similar cases and I will not include that requested remedy here Northwind Maintenance Co 281 NLRB 317 (1986) 0 L Willis Inc 278 NLRB 203 (1986) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed2 2 If no exceptions are filed as provided by Sec 102 46 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 ORDER The Respondent Shopmen s Local Union No 455 International Association of Bridge Structural and Orna mental Iron Workers AFL-CIO Garden City New York its officers agents and representatives shall 1 Cease and desist from (a) Attempting to cause Precision Fabricators Inc to discriminate against Samuel G Porter Daniel Pounds or any other employee in violation of Section 8(a)(3) of the Act (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 except to the extent that such rights may be affected by a lawful agreement re quirmg membership in a labor organization as a condi tion of employment 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Notify Precision Fabricators Inc in writing with a copy to Samuel G Porter and Daniel Pounds that it does not seek their discharge or a deduction of dues from their wages because of any claimed dues delinquen cy (b) Remove from its files and ask Precision Fabrica tors Inc to remove from its files any reference includ ing its letter of 21 May 1986 to its demand for the un lawful discharge of Samuel G Porter and Daniel Pounds and notify them in writing that it has done so and it will not use this unlawful request against them in any way (c) Post at its office and meeting hall if any copies of the attached notice marked Appendix 3 Copies of the notice on forms provided by the Regional Director for Region 29 after being signed by the Respondents au thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to members are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (d) Additional copies of the Appendix shall be signed by Respondents authorized representative and forthwith returned to the Regional Director for Region 29 These notices shall be furnished to Precision Fabricators Inc and posted in places where notices to employees custom arily are posted if this Employer is willing to do so (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply Board and all objections to them shall be deemed waived for all pur poses 3 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 IRON WORKERS LOCAL 455 (PRECISION FABRICATORS) 1 389 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 or dered us to post and abide by this notice WE WILL NOT attempt to cause Precision Fabricators Inc to discriminate against Samuel G Porter Daniel Pounds or any other employee in violation of Section 8(a)(3) of the Act WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act except to the extent that such rights may be affected by a lawful agreement requiring membership in a labor organization as a condition of em ployment WE WILL notify Precision Fabricators Inc in writing with a copy to Samuel G Porter and Daniel Pounds that we do not seek their discharge or a deduction of dues from their wages because of any claimed dues delinquen cy WE WILL remove from our files and ask Precision Fabricators Inc to remove from its files any reference including our letter of 21 i May 1986 to our demand for the unlawful discharge of Samuel G Porter and Daniel Pounds and notify them in writing that we have done so and we will not use this unlawful request against them in any way SHOPMEN S LOCAL UNION No 455 INTER NATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNAMENTAL IRON WORKERS AFL-CIO