Boilermakers Local No. 338

National Labor Relations Board - Board Decisions

Jul 27, 1967

166 N.L.R.B. 874 (N.L.R.B. 1967)

874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Boilermakers, Iron
Ship Builders , Blacksmiths , Forgers and Helpers,
Local Lodge No. 338, AFL-CIO (Eidal Interna-
tional Division Southwest Factories, Inc.) and C.
E. Church. Case 28-CB-399
July 27, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On May 16, 1967, Trial Examiner Eugene K.
Kennedy issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
The Charging Party, Church, returned to work
for Eidal on September 19, 1966. Eidal's collective-
bargaining contract with Respondent contained a
union-security clause which required Church to
become a member of Respondent 31 days following
the start of his employment. Church had a
withdrawal card from Respondent. On the day he
commenced working for Eidal, Frank Mora, busi-
ness representative of Respondent, asked Church
to deposit his withdrawal card. Church did not have
it with him. He had to send away for it. On October
17, Church tendered his withdrawal card to Mora
The latter asked Church to pay monthly dues for
September as that was the month the International
Constitution required deposit of the withdrawal
card. Church acknowledged that he owed dues for
October which he tendered, but denies that he owed
dues for September and refused to pay dues for that
month. Respondent rejected the tender of October
dues and on October 20, which was the 31st day
after Church began working for Eidal, informed
Church that his membership had been canceled and
that he would have to pay a $60 reinstatement fee
to return to good-standing membership in the Union
and to retain his job. In other words. Respondent
canceled Church's membership and imposed a rein-
statement fee, after he had started work for Eidal
only because he had refused to pay dues for the
month of September which he could not be required
to do under the union-security clause. If Church
had agreed to pay dues for the month of September
his membership would not have been canceled.
This is not a case, therefore, where a union member
had allowed his membership to lapse during a
period of unemployment and had then been
required to pay a reinstatement fee as a condition of
resuming union membership. Accordingly. this case
is governed by Spector Freight System, Inc., 123
NLRB 43, enfd. 273 F.2d 272 (C.A. 8), cert. de-
nied 362 U.S. 962, whose-continued validity was
recognized in Simmons Company, 150 NLRB 709,
712, upon which the dissent relies.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that Respondent International Brotherhood
of Boilermakers , Iron Ship Builders , Blacksmiths,
Forgers and Helpers, Local Lodge No. 338,
AFL-CIO, its officers , agents, and representatives,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
MEMBER BROWN, dissenting:
I would reverse the Trial Examiner and dismiss
the complaint in its entirety. The question
presented is whether Section 8(b)(I)(A) and 8(b)(2)
precludes a labor organization from invoking a law-
ful union-security clause to collect a reinstatement
fee from a former member who failed to meet
uniformly applied financial responsibilities during
a prior period of nonemployment and who now
seeks to avoid payment of either an initiation fee or
the constitutionally required reinstatement fee. The
majority finds this unlawful, citing Local 545,
Operating Engineers (Joseph Saraceno & Sons,
Inc.), 161 NLRB 1114, and Spector Freight
System, Inc., 123 NLRB 43, where violations were
predicated upon demands for discharge of former
members for nonpayment of dues during periods of
nonemployment. debts not legitimately collectable
under a union-security agreement. In this case,
however, the evidence merely shows that discharge
of former member Church was sought only after ex-
piration of the contractual grace period, and follow-
ing Church's refusal to pay the uniformly required
reinstatement fee of $60. Every indication in the
record is that the demand for September back dues
had been abandoned by the Union when Church's
membership had been canceled in accordance with
article XXXII, section 2, of the Union Constitu-
tion, and the applicable union-security clause was
effectively invoked against him.
166 NLRB No. 93
BOILERMAKERS LOCAL NO. 338
Nevertheless, the Trial Examiner, whose Deci-
sion my colleagues would affirm, finds that as "the
reinstatement fee demand of the Union occurred
because Church refused to pay dues when he was
not obligated to do so," Respondent violated
8(b)(l)(A) and 8(b)(2) of the Act. In my opinion this
reasoning not only results in an unwarranted exten-
sion of Saraceno and Spector, but effectively
forecloses enforcement of a union-security clause
to collect any constitutionally established reinstate-
ment fee. For, a reinstatement fee, by its very na-
ture. is always required as an alternative to the
satisfaction of constitutionally imposed financial
obligations necessary to the maintenance of mem-
bership in good standing during periods of nonem-
ployment.
The Board has recognized that a reinstatement
fee is no different in legal effect that an initiation fee
required of employees with no membership history
and for which a union-security clause may lawfully
be invoked. See Food, Machinery and Chemical
Corporation, 99 NLRB 1430, 1433, and Precision
Lodge No. 1600, International Association of
Machinists, 120 NLRB 1223. Furthermore, to
hold, as does the majority, that Respondent's de-
mands were unlawful in the circumstances
presented, conflicts directly with the principles ex-
pressed in our recent decision in Simmons Com-
pany, 150 NLRB 709, where at page 712, it was
stated:
... a Union may lawfully condition employ-
ment upon a payment of a reinstatement fee
where a lawful union-security agreement ex-
ists, and the mere fact that a union has looked
to a prior period to determine whether an em-
ployee is in good standing does not per se
render its conduct unlawful.
For these reasons and because the record shows
no more than Respondent's application of a lawful
union-security clause to enforce payment of a
uniformly applied reinstatement fee, I would
dismiss the complaint herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE K. KENNEDY, Trial Examiner: This matter
was heard in Albuquerque, New Mexico, on January 10,
1967.1 The question presented is whether there was a
violation of the National Labor Relations Act, as
amended, herein the Act, in connection with the termina-
tion of the employment of Cecil Church. Upon the entire
record, a consideration of the briefs submitted by
Respondent and the General Counsel, and my observa-
tion of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE
JURISDICTION OF THE BOARD
Eidal International Division Southwest Factories, Inc.,
herein Eidal, is, and at all times material herein has been,
875
a New Mexico corporation with its principal office in Al-
buquerque, New Mexico. It is engaged in the manufac-
ture of trailers, tanks and related heavy equipment. Dur-
ing the last 12-month period, it purchased materials
valued in excess of $50,000 which were transported to
New Mexico directly from States of the United States
other than the State of New Mexico. Eidal is, and has
been at all times material herein , an employer engaged in
commerce within the meaning of the Act.
II. THE UNION INVOLVED
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, Local
Lodge No. 338, AFL-CIO, herein the Union, is a labor
organization within the meaning of the Act.
III:. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
Cecil Church first worked for Eidal in 1944 and
worked intermittently for this Employer through 1962.
He was a charter member of the Union and on leaving the
employ of Eidal secured a withdrawal card.
At the time the pertinent events here involved oc-
curred, there was included the following union-security
agreement between the Union and Eidal:
All present employees covered by this Agreement
and coming under the jurisdiction of the Union, as
set forth in the Recognition Clause, article 1, shall, as
a condition of employment, become members of the
Union on the thirty-first (31st) day following the ef-
fective date of the Agreement and shall remain mem-
bers in good standing during the life of this Agree-
ment. All employees hired after the effective date of
the Agreement shall, as a condition of employment,
become members of the Union on the thirty-first
(31st) day following the date of their employment,
and shall remain members of the Union in good
standing during the life of this Agreement.
"Good Standing," for the purpose of this Agreement,
is interpreted to mean the payment or tendering of in-
itiation fees and periodic Union dues.2
Church returned to work for Eidal on September 19,
1966. On this date, Frank Mora, the business representa-
tive of Respondent Union, saw Church at work. He
requested that Church give him his union withdrawal
card. Church responded that he did not have it but he ex-
pected to have it within a few days.
On October 3, 1966, Mora again requested Church to
give him his withdrawal card. Church explained that he
had written for it and would get it as soon as he could.
Mora replied, "Well, that is fine, but I guess you know
that you beat me out of September's dues." Church
received his withdrawal card in the mail on that same af-
ternoon.
Church did not see Mora again until October 17, 1966,
and gave Mora his withdrawal card. Church
' The charge was filed by C E Church on October 21, 1966 The com-
plaint was issued November 8, 1966
' Respondent orally amended its answer to admit the existence of this
union-security clause
876 DECISIONS OF NATIONAL
acknowledged he owed dues for October but not for Sep-
tember. Mora told Church that, according to the Union
Constitution, he had to pay September dues as that was
the month the withdrawal card should have been
deposited.3
Mora then contacted Charles Helman, shop superin-
tendent for Eidal, and advised him that he was having
trouble with Church and that he should tell Church he
should get straightened out with the Union . Later that
day, Mora called Helman and advised him to wait until
October 20 and then to tell Church he could not continue
working until he was "straightened " out with the Union.
On October 18, 1966 , Church gave Union Steward
Herrera a check for his October membership dues. Her-
rera returned it to Church the following day . Church then
sent it to Mora who returned it to Church with a letter
dated October 20, 1966, advising Church that his mem-
bership card was sent to the International offices for can-
cellation , and that for Church to become a member in
good standing, he would have to apply for reinstatement.
On October 20, 1966 , Mora called Helman and ad-
vised him that he should tell Church he could not con-
tinue working until he was straightened out with the
Union. This was on the 31st day since Church started to
work on September 19, 1966 . The practice followed by
the Union was to charge a $60 reinstatement fee
which on two-previous occasions Church had paid when
returning to work for Eidal, after being away less than 6
months.
On October 20, 1966, Superintendent Helman advised
Church he could not continue working until he got
straightened out with the Union . Thereupon Church
gathered up his tools and left his employment.
CONCLUDING FINDINGS
It is evident from the undisputed facts that the Union
caused the termination of Church's employment because
of his refusal to pay dues for September 1966. Section
8(a)(3) of the Act limits the payment of union dues after
a period of employment of 30 days as a condition of con-
tinued employment under a collective-bargaining agree-
ment. The Union 's demand that Church pay dues for Sep-
tember 1966 contravened this -Portion of the Act.
In Local 545 , Operating Engineers (Joseph Saraceno
& Sons, Inc. ), 161 NLRB 1114 , the Board stated: "It is
well settled that a demand for back dues and a reinstate-
ment fee, based on a period when there was no statutory
obligation to maintain membership as a condition of em-
ployment is violative of the Act . See Spector Freight
System , Inc., 123 NLRB 43, enfd . 273 F .2d 272 (C.A.
8), cert. denied 362 U.S. 962.
Cases applying the same principle are, Local Union
No. 1842, International Brotherhood of Electrical Work-
ers (Avco Manufacturing Corporation , Crosley Divi-
3 The following portion of the Union Constitution is the one relied on
by Mora to require that Church pay his September dues-
ARTICLE XXXII
Section 2 . A member who holds a Withdrawal Card, on returning to
work at the trade , whether such member is employed in either an or-
ganized or unorganized shop, shall deposit such Withdrawal Card
with the Business Manager or Secretary -Treasurer of the Local
Lodge having jurisdiction over the territory or the work . Failure on
the part of a former member to deposit the Withdrawal Card shall
LABOR RELATIONS BOARD
lion), 124 NLRB 794; and Idarado Mining Company, 77
NLRB 392.
Here the reinstatement fee-demand of the Union oc-
curred because Church refused to pay dues when he was
not obligated to do so . The provisions of the Union Con-
stitution in such a situation are subordinated to the statu-
tory right of an employee to the 30 -day grace period.
The conflict here presented between the Union's right
to enforce its rules including its demand for a reinstate-
ment fee and the right of an employee to the statutory
grace period of 30 days before the obligation to pay dues
occurs, must be resolved against the Union as I read
Joseph Saraceno & Sons , Inc., supra . Since the demand
for the reinstatement occurred only because Church
refused to pay dues for a period when he was under no
statutory obligation to do so, it is found that the demand
for the reinstatement fee as well as dues for September
1966 was unlawful and the termination of the employ-
ment of Church because of such demands violated Sec-
tion 8(b)(1)(A) and (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Employer's
operations described in section I, above, have a close, in-
timate , and substantial relation to trade, traffic , and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free3flow thereof.
V. THE REMEDY
It has been found that Respondent Union has engaged
in unfair labor practices and it will therefore be recom-
mended that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies
of the Act. It will be recommended that Respondent
Union notify Eidal that it has no objection to the rein-
statement of Cecil Church and that it make him whole for
any loss of pay he may have suffered by payment to him
of a sum of money equal to what he would have normally
earned from the date of his termination until the date of
Respondent Union's notice to Eidal. Such loss of
earnings shall be computed in accordance with the formu-
la established in F. W. Woolworth Company, 90 NLRB
289, together with interest in accordance with the formula
in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Eidal is an employer engaged in commerce within
the meaning of the Act.
cause it to be immediately canceled or revoked . Any former member
who has held a Withdrawal Card for six (6) months or less, shall pay
to the Local Lodge in which the Withdrawal Card is deposited all
dues and assessments which have accured since the issuance of the
Withdrawal Card , plus one (1) month's death benefit contribution if
a participating member; and if the former member has held such
Withdrawal Card for more than six (6) months, he shall pay one (1)
month's dues , and one (1) month's death benefit contribution if a par-
ticipating member, and assessments , if any , for the month in which
the Withdrawal Card is deposited.
BOILERMAKERS LOCAL NO. 338
2. Respondent Union is a labor organization within
the meaning of the Act.
3. By causing Eidal to terminate the employment of
Cecil Church in violation of Section 8(a)(3) of the Act,
Respondent Union has violated Section 8(b)(1)(A) and
(2) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that Respondent
Union, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Eidal to dis-
criminate against Cecil Church or any other of its em-
ployees in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coerc-
ing employees of Eidal in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of
employment in accordance with Section 8(a)(3) of the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Notify Eidal, in writing, that it has no objection to
the reinstatement of Cecil Church and furnish Cecil
Church a copy of such notification.
(b) Notify Cecil Church if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon dpplication.
(c) 'Make whole Cecil Church for any loss of pay
which he may have suffered as a result of the discrimina-
tion against him in the manner set forth in the section of
this Decision above entitled "The Remedy."
(d) Post at its office in Albuquerque, New Mexico,
and any other place where it customarily posts notices to
its members, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms provided
by the Regional Director for Region 28, after being
signed by a representative of Respondent Union, shall be
posted immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter in con-
spicuous places, including all places where Respondent
customarily posts notices to its members. Reasonable
steps shall be taken by Respondent Union to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Deliver to the Regional Director for Region 28,
signed copies of said notice in sufficient number to be
posted by Eidal, if willing.
(f) Notify the Regional Director for Region 28, in writ-
ing, within 20 days from the date of this Decision, what
steps have been taken to comply herewith.5
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order."
5 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director,
in writing , within 10 days from-the-date of this Order, what steps Re-
spondent has taken to comply herewith."
877
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHER-
HOOD OF BOILERMAKERS , IRON SHIP BUILDERS,
BLACKSMITHS , FORGERS AND HELPERS, LOCAL LODGE
No. 338, AFL-CIO
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Eidal_In-
ternational Division Southwest Factories, Inc., to
discriminate against Cecil Church or any other of its
employees in violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees of Eidal International
Division Southwest Factories, Inc., in the exercise
of their rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be af-
fected by an agreement requiring membership in a
labor organization as a condition of employment in
accordance with Section 8(a)(3) of the Act, as modi-
fied by the Labor-Mamagement Reporting and
Disclosure Act of 1959.
WE WILL notify Eidal International Division
Southwest Factories, Inc., in writing, that we have
no objection to the reinstatement of Cecil Church,
and we shall furnish the said employee with a copy of
such notification.
WE WILL make whole Cecil Church for any loss of
pay he may have suffered by reason of the dis-
crimination against him , and offer him immediate and
full reinstatement to his former or substantially
equivalent position without prejudice to seniority or
other rights.
INTERNATIONAL BROTHER-
HOOD OF BOILERMAKERS,
IRON SHIP BUILDERS,
BLACKSMITHS , FORGERS
AND HELPERS, LOCAL
LODGE No. 338, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and Univer-
sal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 7011
Seventh Floor Federal Building and United States Court
House, 500 Gold Avenue S.W., Albuquerque, New Mex-
ico 87101, Telephone 247-2583.