Teamsters Local Union No. 326

TEAMSTERS LOCAL UNION NO) 326h General Teamsters Local Union No. 326, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and The Firestone Plastics Compa- ny. Case 5-CB-2556 December 3, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEI.LO On June 25, 1980, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and sup- porting briefs, and Respondent filed a brief in op- position to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended I The General Counsel and the Charging Party have excepted to cer- tain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect Standard Dry Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. In so holding, however, we do not adopt the Administrative Law Judge's overly broad interpretation of Eastern Engineering & Elevator Co., Inc., 247 NLRB No. 4 (1980). In addition, in adopting the Administrative Law Judge's finding that Respondent did not violate Sec. 8(bH5) of the Act, we find t unnecessary to rely on his statement in the penultimate paragraph of his "Conclu- sions" section that "My review of the Board cases leads me to conclude that an initiation fee which is less than two times the weekly earnings of the employees affected is not, absent unusual factors, excessive." Finally, we do not rely on the Administrative Law Judge's application of the following cases cited in fn. 16-19 of his Decision: New York Local II. National Association of Broadcast Employees and Technicians. AFL- CIO (American Broadcasting Company. A Division of American Broadcast- ing Companies. Inc.), 164 NLRB 242 (1967); General Longshore Workers. International Longshoremen ' Association, Local Union No 1419, AFL-CIO (New Orleans Steamship Association), 186 NLRB 674 (1970); Local Union No. 749, International Brotherhood of Boilermakers. Iron Ship Builders, Blacksmiths, Forgers Helpers. AFL-CIO (California Blowpipe d Steel Co., Inc), 192 NLRB 502 (1971); and Motion Picture Screen Cartoonists, Local 841, International Alliance of Theatrical Stage Employees and Moving Picture Operators of US. d Canada. AFL-CIO (National Broadcasting Company. Inc.), 225 NLRB 994 (1976). Thus, in each of the cases cited, the initiation fee which the Administrative Law Judge herein pointed to as having been found reasonable by the Board was not the initiation fee alleged to have been violative of Sec. 8(b)(5), but rather the original fee. abandoned in favor of an upwardly revised figure 253 NLRB No. 74 Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMINT O t IFl' CAS HERBERT SIIBERMAN, Administrative Law Judge: Upon a charge of unfair labor practices filed by The Firestone Plastics Company, herein called the Company, on February 16, 1978, a complaint was issued on July 11. 1979, alleging that the Respondent, General Teamsters Local Union No. 326, affiliated with the International Brotherhood ot Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union or Local 326, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(5) of the National Labor Relations Act, as amended. Respondent duly filed an answer to the complaint denying that it had engaged in the alleged unfair labor practices. A hearing in this proceeding was held in Baltimore, Maryland, on October 29 and December 10, 1979. At the hearing Re- spondent amended its answer to allege the statute of limi- tations as an affirmative defense. Respondent in its brief does not pursue this defense and, in any event, I find that there is no merit thereto. Motion Picture Screen Cartoon- ists, Local 839, 1. A. T S. E. (Animated Film Producers Association, et al.), 121 NLRB 1196, fn. 2 (1958). In sub- stance, the complaint alleges that the Union, which is the recognized representative of a unit of the Company's em- ployees and which has a collective-bargaining agreement covering such employees that includes a union-security clause, since August 17, 1977, has required employees covered by the agreement as a condition of acquiring membership to pay an initiation fee of $300 which fee is alleged to be excessive. Following the close of the hear- ing each of the parties filed briefs with me. Upon the entire record in the case, I make the follow- ing: FINDINGS OF FACT I. JURISDICTION The Company, an Ohio corporation, manufactures resins and related compounds at its Perryville, Maryland, location. The Company's annual purchases of products and supplies which are shipped to its Maryland facility through channels of interstate commerce exceed $50,000 in value. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act and during the times material hereto has been the recognized collective-bargaining rep- resentative of a unit of the Company's employees. 1. THE ALLEGED UNFAIR LABOR PRACTICES The Union, which, under its charter from the Interna- tional, has jurisdiction in the State of Delaware and in adjacent areas in Maryland and Pennsylvania. is a miscel- laneous local; that is, it represents employees in diverse industries and occupations. It has agreements with ap- 551 I)LCISI()NS OF NATIONAL LABOR RELATIONS BOARD proximately 160 employers and has a membership of be- tween 2,7(00 and 2,800 persons. The Union has been the representative of a unit of the Company's production and laboratory employees at its Perryville, Maryland, plant since 1969 and during the times relevant hereto has been party to a collective-bargaining agreement with the Company which contains a valid union-security clause requiring membership in the Union as a condition of em- ployment. The Company manufactures polyvinyl chlo- ride resins at its Perryville facility. On April 1, 1977, the Union increased its initiation fee from $100 to $300. The increased fee was applicable to the represented employees of all employers with whom the Union had collective-bargaining agreements, except one for whose employees there was a lower initiation fee of $10. Also, a special initiation fee of only $10 is re- quired of employees in newly organized units until the first collective-bargaining agreement is executed where- upon the initiation fee becomes $300. Pursuant to a re- quest made on behalf of the employees of the Company, in May or June 1977 the time within which newly hired employees of the Company were required to pay the ini- tiation fee was extended from 30 days to 60 days. Thomas Byron, secretary-treasurer of the Union, testi- fied that the only reason the Union increased its initiation fee was to improve its financial situation. He explained that the expenses of the Union during the 2 preceding years had exceeded its income and the decision to raise additional revenue by increasing the initiation fee rather than by increasing the dues was made because the dues had been raised $2 per month effective in October 1976 with an additional $1 per month effective in October 1977 and the Union therefore was reluctant to increase further its regular dues. As the allegation in this case is that the initiation fee is excessive, and not that it is dis- criminatory, the specific reasons for the increase in the initiation fee and whether or not the Union's financial objectives could have been better achieved in some other manner, as for instance by more efficient management of its affairs, would appear to be irrelevant to the issues in this case. The statute does not define the term "excessive."' The legislative history of the Act shows that the purpose of Section 8(b)(5) was to prevent the circumvention of Sec- tions 8(a)(3) and 8(b)(2), which interdict closed shops, by the device of requiring new members to pay exorbitant initiation fees. 2 In support of his complaint the General Counsel ad- duced evidence regarding the initiation fees imposed by the labor organizations which represent employees of Sec. (b(5) reads to require of employees covered by an agreement authorized under subsection (a}(3) the payment, as a condition precedent to be- coming a member or such organization, of a fee in an amounlt which the IBoard finds excessive or discriminatory under all the circum- stances. In making such a finding, the Board shall consider, among other relevalt factors, the practices and customs of labor organiza- tions in the particular industry. and the wages currently paid to the employees affected 11 Leg Itist 1544) (LMRA. 1974). The briefs filed by the General Counsel and by Respondent contain good summaries of the legislative history of Sec S(b)(5) It. therefore, is nriot necessary to repeat here what has been well explicated in the briefs. other polyvinyl chloride resins manufacturers and by the labor organizations which represent employees of em- ployers located near the Company's Perryville plant, plus evidence as to the entry level wage rates of such employees and evidence purporting to show the effect of the Union's increased initiation fee upon the recruitment of new employees by the Company. What is intended by the term "particular industry" as used in Section 8(b)(5) is not clear. The General Counsel contends that the manufacturers of polyvinyl chloride compose a "particular industry." The Standard Industrial Classification Manual (Office of Management and Budget, 1972) lists polyvinyl chloride resins as one of ap- proximately 70 products manufactured under industry no. 2821, "Plastics Materials, Synthetic Resins, and Non- vulcanizable Elastomers." This industry number, which appears on paqe 114 of the Manual, falls under the major group heading, "Chemicals and Allied Products," which in turn is divided into several subgroups. Industry No. 2821, "Plastics Materials, Synthetic Resins, and Nonvul- canizable Elastomers," is listed under the subgroup head- ing, "Plastics Materials and Synthetic Resins, Synthetic Rubber, Synthetic and Other Man-Made Fibers, Except Glass." Thus, the manual does not list the manufacture of polyvinyl chloride resins as an industry but only as one of more than 70 products which together compose an industry. It is my opinion that the manufacturers of polyvinyl chloride resins alone do not constitute a "par- ticular industry." The evidence in the record regarding the initiation fees charged by unions which represent employees who work for employers that manufacture polyvinyl chloride resins is as follows: Union Teamsters, Local 326 Rubber Workers, Local 336 Paper Workers, Local 1134 Glass & Ceramic Workers, Local 482 Allied Industrial Workers, Local 88 Chemical Workers, Local 553 Distillery Workers, Local 72 O)CAW, Locals 8890 and 8716 Chemical Workers, Local 801 Textile Workers, ACTWU PVC Manufacturer Initiation Fee Firestone (Perryville, MD) Firestone (Pottstown, PA) Stautfer (Delaware City, DE) Hooker Chemical (Burlington. NJ) Borden Chemical (Illiopolis, IL) Borden, Inc. (Leominster, MA) B.F. Goodrich (Louisville, KY) Tenneco, Inc. (Burlington, NJ) Tenneco, Inc. (Flemington, NJ) Hooker Chemical (Hicksville, NY) $300.00 15.31 (79) 13.01 (78) 11.85 (77) 25.00 5.00 45.00 25.00 25.00 25.00 50.00 20.00 Low- est3 Hour- ly Wage $6.83 6.76 5.80 7.08 6.26 6.02 7.09 7.11 7.34 5.16 552 TEAMSTERS LOCAL UNION NO. 32 Union OCAW, Local 8- 277 Rubber Workers, Local 595 Machinists, Local 598 OCAW, Local 3727 Steelworkers, Local 12900 Allied Oilworkers Textile Workers, Local 293 PVC Manufacturer Initriation Fee Goodyear Tire & Rubber (Niagara Falls, NY) General Tire & Rubber Co. (Ashtabula, OtH) Union Carbide (S. Charleston, WV) Air Products (Calvert City, KY) Ethyl Corp. (Balon Route, LA) Ethyl Corp. (Baton Route, LA) Panllasote Company (Passaic, NJ) 25.00 27.26 25.00 25.00 10.(X) 5.(X) X () Low- es 3 llour- iy Wage U nion 6.52 Rubber Workers, Local 797 7.10 Steelworkers, L.ocal 15198 Plastics and 7.77 Molders Union, Local 61 P'('C Manujcturer Initiation FIte Pantasote Company (Point Pleasant. WV) Conoco Chemicals (Aberdeen. MS) Great American Chemical (Fitchberg. MA) 2()(X) I (.IX) 15.(X) Low- Hour- Iv Wage 6.64 5.32 3.50 6 40 Thus, the initiation fee charged by Local 326 is six times more than the next highest fee listed above (that of Chemical Workers Local 801) and is 10 times more than the fee charged by 16 of the remaining 17 listed unions. Further. of the 19 unions representing employees of man- 5 04 ufacturers of polyvinyl chloride resins, the starting hourly wage for the employees at the Company's plant is near the middle, with 7 other PVC manufacturers having higher starting wages. The evidence with respect to the initiation fees charged by five unions which represent employees of employers whose plants are geographically close to the Company's Perryville facility is as follows: nonion Teamsters, Local 326 Paper Workers, Local 1134 Marine and Shipbuilding Workers, Local 85 IBEW, Local 1800 Steelworkers, Local 13930 Auto Workers Initiation Fee 644' , V 14.ak· Maonufacturer Firestone (Perryvile, MD) Stauffer Chemical (Delaware City, DE) Wiley Manufacturing (Port Deposit, MD) Perielli Cable (Elkton, MD) Air Products (Elkton, MD) Chrysler Corp. (Newark, DE) 25.(X) 5. () 5000(X) (79) 5.54 While the hourly wage rates paid by such en are from $1 to $1.80 less than the wage rates pa level employees by the Company, the initiation from $250 to $293 less than the initiation fee cha Respondent. Evidence also was introduced concerning the i fees paid by various locals of the Teamsters Unio are headquartered between Washington, D.C., a York, New York, as follows: TEAMSTER LOCAL Local 107 Local 115 Local 158 Local 312 -100................................ Address Philadelphia, PA Philadelphia, PA Philadelphia, PA Chester, PA nployers lid entry f- . TEAMSTER LOCAL ....... i Local 331 arged by Local 355 Local 384 nitiation Local 513 )n which Local 570 nd New Local 623 Local 639 Local 676 Local 876 Initiation Local 992 Fee Local 557 $ 50 Local 27 100 Local 445 50-75 Local 805 I.ocal 813 Local 817 Address Atlantic City, NJ Baltimore, MD Norristown, PA Philadelphia, PA Baltimore, MD Philadelphia, PA Washington, DC Collingswood, NJ Salisbury, MD Hagerstown, MD Baltimore. MD New York, NY Yonkers, NY New York, NY Nesw York. NY Ncs York, NY 3 The Board holds that the lowest or starting wages are of primary significance in evaluating the impact of an initiatiln ee, rather han wages that may be earned later, since it is the new employee wuho has to pay the initiation fee. See l'vision and Radio Broadcaiing Studio Em ploee. Local 804 (Radio and lievsio.sn )vin Dion ofrangh Puhhealin Inc. Radio Station WI11.. t./-T.I and IM and WEll.- I ). 15 Nt RBt 632. 636, fi 11 ( 1962), enfd 315 1 2d 39 (3d Cir 1'l3) S 3(00.() 56 8 3 3()(X) (78) 700 I) 0) 2((X) 5.(5) 5 57 NA Initiation Fee 25-550 50- 150 25 1(X) 100 5-50 10 50 10) I (X) 5 50 15)- 3(X) 25- 25) 5 25O 25 -25) 300-400 125 4(0) 553 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1'TEAMSTIER LOCAL. Local 1034 Address New York, NY Initiation Fee 50-300 On behalf of Respondent evidence was introduced showing that Division 842, Amalgamated Transit Union, which represents drivers and mechanics within the Greater Wilmington, Delaware, area, increased its initi- ation fee in February 1979 from $125 to $300 and that the employees represented by this union received starting wages of between $5.25 and $6.03 per hour. Also, Re- spondent adduced evidence that Local 199 of the Labor- ers Union, which represents production and maintenance employees as well as construction employees in the Wil- mington, Delaware, area, charges an initiation fee of $225. I agree with the Charging Party and the General Counsel that evidence regarding the initiation fees paid by unions in completely unrelated industries such as the transportation industry and the construction industry and by unions which represent employees in distant labor market areas have little probative value as to whether the initiation fee imposed by the Union in this case is ex- cessive. The General Counsel also adduced evidence purport- ing to show that the increase in the Union's initiation fee made recruitment of new employees by the Company more difficult. Thus, Russell Burroughs, who interviews applicants for hourly rated positions with the Company, testified that prior to April 1, 1977, when the Union's ini- tiation fe was increased, on the average he interviewed two applicants in order to fill each of at least 20 vacan- cies, whereas after April 1, 1977, this ratio changed and he found it necessary to interview approximately seven applicants for every position that had to be filled. Since April 1, 1977, the Company has hired 47 employees in positions within the bargaining unit; 3 in 1977; 31 in 1978; and 13 in 1979. These employees were hired into the service classification except for one who was hired as a janitor.4 The collective-bargaining agreement betwee 326 and the Company established the followil rates for the service employee and the janitor c tions: Efective 12/1/76 12/1/77 12/1/78 Service $4.59-$4.79 $4 4.79-4.99 4.99-5.19 n Local nq wage zlassifica- Janitor 4.30-$4.50 4.50-4.70 4.70-4.90 The most recent collective-bargaining agreement, ef- fective December 1, 1979, established a starting, or "entry" rate for newly hired service employees at $6.83 per hour. During the term of the 1976-79 collective-bar- gaining agreement, cost-of-living adjustments were made to the basic wage rates set forth in the contract so that The General Counsel called as a witness Walter Gilbert, who testi- fied that in the last week of October or the first week of November 1977 he was offered a position by the Company but refused to accept the posi- tion when he was informed that he would be required to pay a $300 union initiation fee within 30 days. the wage rates listed above were increased by 88 cents per hour effective December 1, 1978. With the cost-of- living adjustment included, the wage rates of the service and janitor employees effective December 1, 1978, were: Service employees-$6.07 per hour; Janitor employees- $5.78 per hour. Under the collective-bargaining agreement, unit em- ployees receive overtime at 1-1/2 times their regular rate of pay for hours worked in excess of 40. The parties stip- ulated that, during 2 representative weeks in 1979, serv- ice employees averaged 43.7 and 42.8 hours of work, re- spectively. Using this data as the basis for determining the average weekly wages of the Company's employees affected by the $300 initiation fee, the results are as fol- lows: Avg Hlrs/WA 43.7 42.8 % of Wage/ A.vg Wkly Intia- Avg Hr Wage tion Fee WAly Wage $6.07 $276.49 6.07 268.29 $300 109 300 112 When the initiation fees are considered as a percentage of an employee's average weekly earnings, the disparity between the $300 initiation fee charged by Local 326 and the labor organizations listed above is as follows: Avg Employer Hrs/ Wk Firestone (Perryville) Firestone (Pottstown) Borden (Illiopolis) 43.7* (3/79) 42.8 (6/79) 40 Borden (Leominster) Goodrich (Louisville) Tenneco (Burlington) Tenneco (Flemington) Hooker (Hicksville) Hooker (Burlington) Goodyear (Niagara Falls) General Tire (Ashtabula) Union Carbide (Charleston) Air Products (Kentucky) Ethyl (Baton Rouge) Pantasote (Passaic) 40 48 Avg Initi- % of Wage/Hr Wkly ation avg Wage Fee kly wage $6.07 $276.49 $300.00 109 6.762 (79) 5.582 (78) 6.26 40 5.53 48 40 7.09 (79) 40 7.11 (79) 6.22 (78) 42' 7.34 (79) 6.64 (78) 40 5.16 5.31 46* 6.62 (79) 6.13 (78) 40 6.52 (79) 40 7.10 40 7.77 40 48* 41 40 6.40 8.19 5.04 5.25 268.29 270.48 223.28 250.40 300.48 221.20 265.44 283.60 284.40 248.80 315.62 285.52 206.40 212.40 324.38 300.37 260.80 284.00 310.80 256.00 332.80 335.79 201.60 210.00 112 15.31 5.6 13.01 5.8 45.00 18 15 25.00 11 9 25.00 9 25.00 9 10 50.00 16 17.5 20.00 10 9 5.00 1.6 1.5 25.00 9.5 27.26 9.6 25.00 8 25.00 9.7 7.5 10.00 3 10.00 5 4.7 554 TEAMSTERS LOCAL UNION NO. 326 A Employer H Pantasote (West Virginia) Conoco (Aberdeen) Great American (Fitchburg) Stauffer (Delaware) Wiley (Port Deposit) Perielli (Elkton) Air Products (Elkton)BN The allegation spondent's $300 i meaning of Sectic issue in all prior unlawful fee was d some of those case also excessive, the the meaning of the soned that an initia sarilv is also exces g AvYg mnii- of, tain closed-shop conditions by discouraging new employ- Tr/ Wage/llr Wkly aotio avg ees from entering the industry." where the initiation fee Vk Wage Fee Wklv was raised to inhibit the layoff of incumbent employees Wage' by discouraging new employees from accepting positions 40 6.64 265.60 20.00 7.5 with the employer? and where the initiation fee was raised to discourage nonunion employees from accepting part-time positions with the employer thereby reserving 46* 5.32 255.36 410. ) 4 410 the part-time jobs for union members. 'o 4.77 228.96 4.4 50' 5.32 287.28 3.4 The terms "excessive or discriminatory" as they 4.77 257.58 3.9 appear in Section 8(b)(5) are used in the disjunctive. As- cribing, as I believe Congress intended, different mean- 45* 3.50 166.25 15.(X) 9 ings to the terms "excessive" and "discriminatory," 48' 182.00 8.2 thereby broadening rather than narrowing the reach of 42* 6.61 (78) 284.23 25(X) 8.8 Section X(b)(5), I am of the opinion that unlike a "dis- 580 (78) 249.40 10.0 6.06 (77) 260.58 9.6 criminatory" initiation fee, which embraces elements of 5.32 (77) 228.76 1 10 motive and of disparate treatment, an "excessive" initi- 40 5.94 (79) 237.60 50.00 21 ation fee has a more absolute meaning which does not 5.54 (78) 221.60 30.00 13.5 depend upon its motive, its purpose, or its object. Thus, 40 5.15 206.00 7.00 3.4 the reasons for the adoption of an initiation fee while rel- evant to the consideration of whether such fee is discrim- 40 5.57 (79) 222.80 10.00 4.5 inatory are not relevant to whether such fee is excessive. 5.09 (78) 203860 45.i The object of, or the purpose to be achieved by, an initi- ation fee is necessarily outside the scope of the term "ex- cessive." To use concepts such as purpose or object to define excessive would involve the Board in the regula- Conclusions tion of the normal activities of trade unions because then in the instant complaint is that Re- the Board would be required to consider the needs of nitiation fee is excessive within the unions for funds and how unions properly could raise on 8(b)(5). With one exce ptionn the funds. The legislative history shows that Senator on 8(b)(5). With one exception' the 8(b)(5) cases was whether the alleged Murray, speaking for the minority, expressed the fear Discriminatory. While the complaints in that Section 8(b)(5) would make the Board, "in effect, es alleged that the initiation fees were the Budget Bureau for the trade-union movement" with decisions did not attempt to ascertain "power to direct how, when, and for what, labor unions term excessive because the Board rea- shall spend their funds .. ."" That this was not the tion fee which is discriminatory neces- purpose of Section 8(b)(5) is reflected by the later re- ssive. 6 In those cases the reasons for sponse of Senator Taft: the imposition of the initiation fees were considered to be significant because proof of discrimination usually de- pends upon establishing unlawful motivation as well as disparate treatment. 7 Thus, violations of Section 8(b)(5) were found where the initiation fee was raised to main- S Local Union No. 749. International Brotherhood of Bodermakers Iron Ship Builders. Blacksmiths. Forgers & Helpers. AFL-CIO (California d Blowpipe & Steel Co.. Inc.), 192 NLRB 502 (1971). Although in that case it was found that a reinstatement fee was excessive within the meaning of Sec. 8(bXS), the Decision offers no guides as to what principles or meas- ures should be applied in any other situation to determine what is an ex- cessive initiation fee. In the Boilermakers aseconsiderable emphasis was given to the fact that the union's reinstatement fee was higher than its initiation fee and was also considerably higher than the reinstatement fees of other unions in the particular industry. Thus, there is merit to Re- spondent's argument that the decision in Boilermakers is "based upon con- siderations of discrimination, viz, discrimination as between new members who paid the concededly reasonable initiation fee and those who let their dues fall behind, and were thus saddled with he higher reinstatement fee. Emphasis was placed upon the fact that the reinstatement fee constituted a penalty 'used to limit an employee's right to his job " Furthermore. the Boilermakers Decision indicates that an initiation fee which is 1-1/4 times the employees' weekly pay is not unlawful 6 General Longshore Workers. International Longshoremen'r Association. Local Union No. 1419. AFL-CIO (New Orleans Steamship .4Association), 186 NLRB 674, 678 (1970). ' Local 153, International Union. United Automobile. Aircraft and Agri- cultural Implement Workers of America, 4 W-CIO (Bendix Aviation Cor- porationl. 99 NLRB 1419, 1421 (195i). Section 8(b)(5). Initiation fees: This section was taken in part from the House bill and makes it an unfair labor practice for a union to charge excessive or discriminatory initiation fees with respect to em- ployees covered by a compulsory union member- ship agreement. It has been argued that the effect of this section is to give the Board vast discretion in regulating the dues and initiation fees of all labor organizations and thereby putting the Government in charge of the internal affairs of unions. The ex- press language of this subsection shows how un- founded such an argument is, for it is only in cases in which the employees affected are covered by union-shop or maintenance-of-membership agree- ments that the Board has any jurisdiction. Even then it is limited to initiation fees and does not 8 otion Picture Screen Cartoonist. Local 839 (Animated Film Produceri Association. et al.) 121 NLRB 1196 (1958). 9 Local 611. International Brotherhood of Teamsters. Chauffeurs. Ware- housemen and elpers of America (St. Louis Bakery Employers Labor Council and White Baking Company of Missouri. Inc.). 125 NLRB 1392, 1398 1959) ID American Federation of Television and Radio Artists .41-FL-CIO (WBEN. Inc). 208 NLRH 377 (1974). and cases there cited I I Leg Hisl 1570 (IMRDA. 1959) 555 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cover dues. It was the opinion of the conferees that unless such a provision was inserted, the restrictions on the union shop in Section 8(3) could be easily circumvented. [Id. at 1623.] The General Counsel argues that "[i]nitiation fees were not intended by the Taft-Hartley Act to serve as a vehicle for union fund raising." I find that, the legislative history does not support such assertion. Furthermore, the General Counsel does not state what are the legitimate functions of initiation fees if they do not include fund raising. While Section 8(b)(5) limits the amount that can be charged as an initiation fee, the legislative history does not suggest that the term "excessive" was intended to limit the imposition of initiation fees by the purpose or by the object for which they are adopted. Thus, whether an initiation fee is excessive does not depend upon whether an initiation fee was imposed to overcome an operating deficit, to create a surplus for a strike fund, or to accomplish some other nondiscriminatory objective and, similarly, does not depend upon its prudence, that is, on whether revenue could be raised more effectively by increasing dues or whether it would be more advis- able for the labor organization to effect economies in its operations rather than to increase its initiation fee. Ac- cordingly, I find that the evidence introduced in the record in this case concerning Local 326's reasons and justifications for increasing its initiation fee and respec- tive counsel's arguments in regard thereto is irrelevant. The meaning of "excessive" initiation fee is gleaned, in part, from the purpose of Section 8(b)(5). As explained by Senator Taft when he summarized the differences be- tween the conference agreement and the earlier Senate bill, Sections 8(a)(3) and 8(b)(2) protect an employee from losing his job if a union expels him for some reason other than nonpayment of dues and initiation fee uni- formly required of all members; however, these sections "[do] not sufficiently deal with the situation in which unions wishing to continue a monopoly of certain trades might pass a resolution requiring all new members to pay exorbitant initiation fees and thereby frustrate the intent of the Senate bill. The House bill limited initiation fees to $25 per member except where a greater amount was per- mitted by the Board. The Senate conferees were of the opinion that it was not practical to set a definite amount by law but were willing to accept the principle that where employment was conditioned upon membership in a labor organization exorbitant initiation fees should not be charged." (Emphasis supplied.)' 2 The statute and its legislative history are clear that an excessive initiation fee is not a fixed amount in all cases. What may be a reasonable initiation fee for an employee who earns $1,000 per week could be excessive for an em- ployee who earns $150 per week. Also, the fact that Congress did not establish a maximum ratio between ini- tiation fees and periodic earnings suggests that the term "excessive" should be flexibly applied and the Board has held that Congress intended that the Board should exam- 12 II Leg. Hist., supra at 1540. ine alleged violations of Section 8(b)(5) on a "case-to- case" basis. In determining whether an initiation fee is excessive the statute enjoins the Board to consider "among other relevant factors, the practices and customs of labor orga- nizations in the particular industry, and the wages cur- rently paid to the employees affected." Evidence intend- ed to establish these factors as well as evidence concern- ing the initiation fees of unions representing employees of employers geographically close to the Company's Per- ryville plant, along with evidence of the initiation fees of other Teamsters locals, was introduced. As further proof that the Union's initiation fee is excessive the General Counsel offered testimonial evidence to establish that the Union's increased initiation fee restrained applicants from accepting jobs with the Company. Evidence of such nature is relevant in this case and if competent and mate- rial would be persuasive in showing that the initiation fee is so high that it tends to discourage employment and thereby creates the kind of situation which Section 8(b)(5) interdicts. However, the evidence adduced by the General Counsel has almost no probative value. One wit- ness called by the General Counsel, Walter Gilbert, testi- fied that he refused an offered position with the Compa- ny when he was informed that he would be required to pay a $300 initiation fee within 30 days. Gilbert's recol- lection was far from precise. He testified that he had in- terviews with personnel officer Clothier in October or November 1977; that he first applied for a position of safety engineer but was told that he was under qualified and then 3 weeks later applied for a position as an opera- tor. Russell Burroughs, another witness for the General Counsel, testified that Gilbert may have been confused when Gilbert testified that he had been interviewed by Clothier, that he had interviewed Gilbert with respect to Gilbert's application for a service employee position in April 1977 and then subsequently contacted Gilbert in May 1978 regarding a security officer's position, which is a nonunit job. Burroughs did not testify that when he in- terviewed Gilbert he informed Gilbert that the latter would be required to pay a $300 initiation fee as a condi- tion of employment. I find Gilbert's testimony of no pro- bative value, not only because I consider that Gilbert was an unreliable witness, but also because the reaction of a single applicant does not tend to prove that the Union's initiation fee was so high that it discouraged ac- ceptance of employment with the Company. An addi- tional reason is because the unfair labor practice charge herein was filed on February 16, 1978, and Gilbert's al- leged refusal to accept a position with the Company oc- curred in April 1977, more than 6 months earlier.' 4 :1 Local 153, Automobile Workers (Bendix Aviation Corporation), 99 NLRB at 1421 14 Had Gilbert refused employment with the Company because as a condition of his employment he was required to pay an "excessive" iti- ation fee, such circumstance would constitute a violation of Sec. 8(b)(5) Consideration of such unfair labor practice is barred by Sec 10(b) of the Act particularly as Gilbert's testimony does not "shed light on the true character of matters occurring within the limitations period." Local Lodge No. 1424, Inernational .4sociation of Machinists. AFL-CIO, et al v. N. R. B., 362 US. 411, 416 (1960). 556 TEAMSTERS LOCAL UNION NO. 326 Russell Burroughs also testified that prior to April 1, 1977, approximately 2 applicants for employment were interviewed to fill each of about 20 vacancies, whereas after April 1, 1977, the ratio between interviews and jobs filled changed to 7 to . This generalized, unsubstantiat- ed, and uncorroborated testimony is valueless. The Board has recently held that where records are available and not introduced into evidence the testimonial sum- mary of a corporate official should be disregarded. Furthermore, not only did Burroughs fail to give the basis for his figures and fail to describe the records he consulted to refresh his recollection, but he also failed to give any testimony to establish that the changed ratio was in any way related to the Union's increased initiation fee. Absent any explanation it would be as valid to infer that if, in fact, the ratio had increased it was due to more stringent hiring standards established by the Company as it would be to infer that the ratio had increased because of the Union's higher initiation fee. While the Board has not in any case held that any given relationship between an initiation fee and employ- ees' wages was excessive (unless it found that the initi- ation fee was discriminatory), in several cases involving unlawful discriminatory initiation fees the Board's reme- dial orders permitted the unions to continue to charge initiation fees greater than 112 percent of the employees' average weekly wages. Thus, in ANew York Local 11i only so much of the initiation fee as exceeded $150 was deemed unlawful although 90 percent of the employees earned $130 per week. In Ne Orleans Steamship Associ- ation1 7 where weekly earnings were about $170 the Board accepted the concession of the General Counsel that an ititiation fee of $500 is not excessive. In Boiler- makers 8 an initiation fee of 1-1/4 times the employees' weekly pay was considered not to be unlawful. In Motion Picture Screen Cartoonists19 the Board found that an initiation fee equal to 4 weeks' salary excessive and discriminatory but ordered refunded only the excess of 2 weeks' salary. Based upon the foregoing, I conclude that the Board does not view an initiation fee which is 112 percent of the employees' average wages as excessive. The other factor mentioned in Section 8(b)(5) requires consideration of "the practices and customs of labor or- ganizations in the particular industry." According to the evidence introduced in the record there are 18 other or- ganized plants that manufacture polyvinyl chloride resins and the initiation fees charged by these labor organiza- tions vary between $5 and $50. While I sympathize with the enormous problem involved in assembling the data, nevertheless, I am of the opinion that the data furnished by the General Counsel is too limited and that the manu- "l Eastern Engineering & Elevator Co. Inc.. 247 Nl.RB No 4, sl op p 4 (1980) '6 New York Local , National .4 sociation of Broadcast Emploves and Technicians. AFL-CIO (American Broadcasting Compuny. A Divison of American Broadcasting Companies, Inc.), 164 NL.RH 242 (1967). 17 General Longshore RWorkers, Longihoremrncn .A4sociation, Local Union No. 1419 (NeV Orleans Steamship .4ssx-iiatuno, 186 NLRB 674 18 Local Union .Vo 749, Bodermakers Cal/brni & Blowpi & Steel Co., Inc.). 192 NLRH at 506 19 .Motion Picture Screen Cartoonists, Local 41, Internationl a.lliance of Theatrical Stage Emplhtvee. and foving Picture Operatorv of US Canada. AF4L-CIO (.Vattonal Broadcasting Compan. Inc.). 225 NLRB 994 (1976) facturers of polyvinyl chloride resins do not constitute a "particular industry" within the meaning of Section 8(b)(5). Furthermore, assuming that they do, I am of the opinion that the $250 difference between the Union's ini- tiation fee and the next highest initiation fee is not exces- sive. The highest initiation fee charged by a union in a par- ticular industry cannot automatically be unlawful as that would lead to an absurd result where each of the differ- ent initiation fees would sequentially become unlawful. To compare the multiple between initiation fees can be mathematically deceptive. As an example, although the difference between $5 and $30 represents a multiple of 6 it nevertheless represents only a small arithmetic differ- ence. The object of the statute is to outlaw initiation fees which are so exorbitant that they discourage employ- ment. The most logical factor bearing upon this object is the relationship between the initiation fee and the wages-certainly not the initiation fee in other plants. Of what significance then is the factor of the practices and customs of labor organizations in the particular industry? I believe this factor comes into play less to assist in iden- tifying unlawfully high initiation fees than to justify initi- ation fees that may be high in relation to wages, as, for instance, in the construction trades. 20 Whether or not an initiation fee is unlawfully excessive is determined on a case-to-case basis. This does not mean that the decision in each case is arbitrary and without any guides. I do not believe that the Board intends to de- velop a specific ratio between an initiation fee and an- other factor such as wages to measure whether a particu- lar initiation fee is unlawfully excessive. However, I be- lieve that the Board in its Decisions is defining the gen- eral parameters within which to circumscribe the term "excessive." My review of the Board cases leads me to conclude that an initiation fee which is less than two times the weekly earnings of the employees affected is not, absent unusual factors, excessive. Accordinqly, I find that the Union's initiation fee of $300, which has been applied to the employees of the Company since April 1, 1977, is not excessive within the meaning of Sec- tion 8(b)(5) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSION OF LAW Respondent has not engaged in the unfair labor prac- tices alleged in the complaint. Upon the basis of the foregoing findings of fact, con- clusion of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 20 The same consideration pertains to the relationship between the Union's initiation fee and the initiation fees of other labor organizations in the geographic area of the Company's Perry Ville plant 557 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 2 The complaint is dismissed in its entirety. 2i In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.