Electrical Workers, Local No. 396

National Labor Relations Board - Board Decisions

May 6, 1977

229 N.L.R.B. 469 (N.L.R.B. 1977)

ELECTRICAL WORKERS, LOCAL NO. 396
International Brotherhood of Electrical Workers,
Local No. 396 (Central Telephone Company) and
Shelly McLane Brown and Toni R. Pepe. Cases
31 -CB-2056 and 31-CB-2056-2
May 6, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On August 19, 1976, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge,
and to adopt his recommended Order, as modified
herein.
Respondent is party to a collective-bargaining
agreement with the Company. This collective-bar-
gaining agreement contains no provision for union
security, agency shop, or other forms of compulsory
membership.' In April 1975, Respondent Business
Manager and Financial Secretary Robert Kinney
mailed a copy of the recently negotiated contract
together with a membership application to all unit
employees including those who were not members of
the Union. On September 30, Kinney mailed a
followup letter to those employees who had not
authorized a deduction and to delinquent members.
The following letter, addressed to one of the
Charging Parties, is illustrative of Kinney's mailing:
Dear Ms. Pepe:
We have made numerous efforts to contact you
pertaining to your Union dues. You have received
applications, on April 25, 1975, from the local
Union which you have elected to ignore. You now
owe the Local Union for the month(s) of April
through September. Dues are assessed monthly at
one hour of your pay rate, plus $2.00 if paid on
time. Please remit this amount to the Union so
you will be current and all your benefits may take
effect.
I The contract appears to be in compliance with Nevada's "Right to
Work" statute (Nevada Revised Statutes, Sec. 613. 230, erseq.).
229 NLRB No. 74
Sincerely,
Robert A. "Red" Kinney
Business Manager
Financial Sec.
RAF/geh
9/75
Upon receipt of this letter, employees Pepe, Brown,
and Wheeler, who were not members of the Union,
each separately called Kinney and told him they had
no intention of paying union dues. According to the
credited and uncontradicted testimony, Kinney told
each employee that although the Union was required
to bargain for all employees, without regard to union
membership, and that under state law employees
could not be required to be members of the union as
a condition of employment, there was no law that
said they did not have to pay union dues. Kinney
also told these employees that if they did not pay
union dues he would refer the claims to a collection
agency and institute court action if necessary.
Union member Mary Reynolds received the
identical followup letter from Kinney. Reynolds
credibly testified that she called Kinney in January
1976 and told him that she wanted to withdraw from
the Union and that she had notified the payroll
department to discontinue her deduction. Reynolds
also told Kinney that she would not voluntarily pay
any more dues. Kinney responded, "Well, you can't
be an employee of the telephone company without
being a member."
The Union took no action to enforce payment of
dues from any unit employees.
The Administrative Law Judge found that Respon-
dent, acting through its business manager, violated
Section 8(b)(l)(A) of the Act by notifying nonunion
bargaining unit employees that they would be
required to pay union dues as bargaining dues, and
by threatening to collect such dues by referring
claims therefor to a collection agency or by institut-
ing court proceedings. The Administrative Law
Judge also found that Respondent, by its actions,
sought to impose agency-shop conditions as a
requirement for employment contrary to the "Right
to Work" laws of the State. The Administrative Law
Judge further found that Respondent violated
Section 8(b)(l)(A) by attempting to impose union-
security conditions on Reynolds' right to continue
employment in violation of state law and the
provisions of Section 8(a)(3).
We agree with the Administrative Law Judge that
Respondent by its actions violated Section
8(b)(l)(A). However, our finding is predicated not
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon any possible violation of the laws of the State of
Nevada but rather upon the conclusion that Respon-
dent's actions restrained or coerced employees in the
exercise of the rights guaranteed in Section 7 of the
Act. The fact that the incidents occurred in a "Right
to Work" State is irrelevant to our determination.
Kinney's statement to Reynolds that she could not
resign and would not be permitted to resign from the
Union if she wished to remain in the Company's
employ was an obvious threat of job loss. Such threat
plainly interferes with Reynolds' right to refrain from
any and all union activities and may be legitimized
only by an agreement requiring membership in the
Union. There were no union-security provisions in
the collective-bargaining agreement between Re-
spondent and the Company, and it is axiomatic that,
in the absence of a valid union-security clause,
threats to employees that they will lose their jobs or
otherwise be discriminated against in employment
because of nonpayment of dues violate Section
8(b)(1)(A). The violation exists even though the
Respondent could not require the Company to
discharge Reynolds. The Board has held that the
threat is coercive "because it was a threat of loss of
employment reasonably calculated to have an effect
on the listener without regard to the question of the
Union's ability to carry out the threat." 2
Similarly, we view Kinney's efforts to collect dues
from nonmembers Pepe, Brown, and Wheeler as
coercive and in violation of Section 8(b)(1)(A). We
do not agree with the Administrative Law Judge that
Respondent was threatening to impose an agency
shop on the nonmembers, since there is no evidence
that Kinney stated that the payment of dues was a
condition of continued employment. Nevertheless,
Kinney's statements to the nonmember employees
that they would be required to pay dues for the
privilege of being represented by the Union and that
the Union would turn over claims against the
employees to a collection agency or institute court
proceedings for collection of dues violate Section
8(b)(1)(A) since Respondent had no legal basis to
require nonmembers to pay dues. Section 7 of the
Act protects the right of employees to refrain from
any or all union activities except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition
for employment as authorized in Section 8(a)(3). The
collective-bargaining agreement between Respon-
dent and the Company contains neither a union-
security nor an agency-shop provision, and therefore
Kinney's threats to institute action to collect dues
2 United Furniture Workers of America, Local 309, et al. (Smith Cabinet
Manufacturing Comparny Inc.), 81 NLRB 886, 887, fn. 3 (1949).
1 International Association of Machinists [etc.] (The H. O. Canfield Rubber
Companv of Virginia, Inc.), 223 NLRB 832 (1976). Member Murphy, who
cannot be viewed as an attempt to enforce a valid
contractual provision and can only be viewed as
coercing employees in the exercise of their Section 7
rights.
In view of the above, we reject Respondent's
contention that it is entitled to bring a court suit to
determine whether it may charge nonmember em-
ployees a bargaining fee. We have recently held that
a collective-bargaining representative is obligated to
represent all employees in the unit equally without a
charge upon nonmembers. 3
In sum, for the reasons heretofore enunciated, we
find that Respondent violated Section 8(b)(l)(A) by
threatening to take action against employees Pepe,
Brown, and Wheeler to enforce payment of union
dues, and by stating to employee Reynolds that she
would not be permitted to resign from the Union if
she desired to remain in the Company's employ.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Brotherhood of Electrical Workers,
Local No. 396, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Threatening to take action against nonunion
bargaining unit employees to enforce payment of
union dues and stating to employees that they cannot
resign and will not be permitted to resign from the
Union if they desire to remain in the Company's
employ.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the Act:
(a) Notify Shelly McLane Brown, Toni R. Pepe,
and Sandra W. Wheeler, in writing, that it will not
threaten to take action against them, or against any
other nonunion bargaining unit employees, to en-
force payment of union dues.
(b) Notify Mary A. Reynolds, in writing, that it will
not state to her or any other bargaining unit
employees that they cannot resign and will not be
permitted to resign from the Union if they desire to
remain in the Company's employ or that bargaining
unit employees are required to become or remain
union members as a condition of employment with
the Company, and that it will not threaten to take
action to enforce payment of union dues by
stated therein that in some instances she would permit imposition of a fee,
finds the attempt herein to require the payment of union dues was
unjustified and illegal.
470
ELECTRICAL WORKERS, LOCAL NO. 396
nonunion bargaining unit employees of the Compa-
ny.
(c) Post at Respondent Union's business office and
meeting halls copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms
provided by the Regional Director for Region 31,
after being duly signed by Respondent Union's duly
authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent Union to ensure that
said notices are not altered, defaced, or covered by
any other material.
(d) Furnish to said Regional Director signed copies
of said notice for posting by Central Telephone
Company, at its option, in places where notices to
employees in the unit covered by the collective-
bargaining agreement are customarily posted. Copies
of said notice, to be furnished by the Regional
Director, after being signed by Respondent Union,
as indicated, shall be forthwith returned to him for
posting by Central Telephone Company, if it is so
disposed.
(e) Notify said Regional Director, in writing, within
20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4 In the event that 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 National 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."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to take action against
nonunion bargaining unit employees of Central
Telephone Company to enforce payment of union
dues.
WE WILL NOT state to employees that they
cannot resign and will not be permitted to resign
from the Union if they desire to remain in the
Company's employ.
WE WILL NOT in any like or related manner
restrain or coerce employees of the Company in
the exercise of rights guaranteed in Section 7 of
the Act.
WE WILL notify Shelly McLane Brown, Toni R.
Pepe, and Sandra W. Wheeler, in writing, that we
will not threaten to take action against them or
any other nonunion bargaining unit employees of
the Company to enforce payment of union dues.
WE WILL notify Mary A. Reynolds, in writing,
that we will not state to her or other bargaining
unit employees that they cannot resign and will
not be permitted to resign from the Union if they
desire to remain in the Company's employ or that
employees are required to become or remain
members of the Union as a condition of employ-
ment with the Company, and that we will not
threaten to take action to enforce payment of
union dues by nonunion bargaining unit employ-
ees of the Company.
All employees of Central Telephone Company are
free to become or remain or to refrain from
becoming or remaining members of the Union.
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
LOCAL No. 396
DECISION
STATEMENT OF THE CASE
IRVING ROGOSIN, Administrative Law Judge: The conso-
lidated complaint issued February 4, 1976, alleges that
Respondent has engaged in unfair labor practices within
the meaning of Sections 8(bX )(I)(A) and 2(6) and (7) of the
National Labor Relations Act, as amended. Specifically,
the complaint, as amended at the hearing, alleges that (1)
on about October 3, 1975, Respondent, acting through its
business manager, notified nonunion bargaining unit
employees that they would be required to pay union dues
as "bargaining" dues, and threatened to collect such dues
by referring claims therefor to a collection agency or by
instituting court proceedings; and (2) on or about January
30, 1976, Respondent, acting through the same agent,
threatened a union member of the bargaining unit that she
would not be permitted to withdraw from Respondent if
she wished to remain in the Company's employ, and that
Respondent would enforce the collection of dues from her
by referring claims therefor to a collection agency or by
instituting court proceedings against her. '
Respondent's answer, duly filed on February 12, 1976,
admits the procedural and jurisdictional allegations of the
complaint but denies generally and specifically the remain-
ing allegations.
Hearing on the consolidated cases was held before the
duly designated Administrative Law Judge on March 25,
' Designations herein are as follows: General Counsel, unless otherwise
stated or required by the context, his representatives at the heanng;
International Brotherhood of Electrical Workers, Local No. 396, Respon-
dent, Respondent Union or the Union: Central Telephone Company. the
Employer or the Company: the National Labor Relations Act, as amended
(61 Stat. 136, 73 Stat. 519. 29 U.S.C. Sec. 151, et seq.), the Act; the National
Labor Relations Board, the Board. The charge in Case 31-CB-2056 was
filed on October 7, 1975, and served on October 9, 1975; the charge in Case
31-CB-2056-2 was filed on October 9, 1975, and served on October 14,
1975. Unless otherwise stated, all dates are in 1975.
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1976, at Las Vegas, Nevada. General Counsel and
Respondent were represented by counsel, were afforded
full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence relevant and material to
the issues, to argue orally and to file briefs and proposed
findings of fact and conclusions of law. Respondent's
counsel argued orally on the record, but filed no brief;
General Counsel waived oral argument but filed a brief on
April 19, 1976. No proposed findings of fact or conclusions
of law have been filed by any of the parties.
Upon the entire record in the case and based upon the
appearance and demeanor of the witnesses, and General
Counsel's brief, which has been duly considered, I hereby
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF EMPLOYER
The complaint alleges, Respondent's answer admits, and
it is hereby found that Central Telephone Company, the
Company or Employer herein, a corporation duly orga-
nized under the laws of the State of Delaware, with an
office and principal place of business located in Las Vegas,
Nevada, is, and at all times material herein has been, an
employer engaged in the operation of an interstate
telephone communication system.
In the course of its business operations, the Employer
purchases and receives goods or services valued in excess
of $50,000 annually, directly from suppliers located outside
the State of Nevada, and derives gross revenues in excess of
$ 100,000 annually.
Upon the basis of the foregoing, and upon the entire
record, including the admissions in Respondent's answer, it
is hereby found that at all times material herein the
Company has been an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
No. 396, Respondent Union herein, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
Respondent has been a party to a collective-bargaining
agreement with the Company, covering employees in an
appropriate unit described below.2
In conformity with the "right-to-work" statute of the
State of Nevada, 3 the latest collective-bargaining agree-
ment, presumably entered into shortly before April 1975,
2 The description of the unit is as follows:
Included: Traffic Department employees, clerical employees of its
accounting, commercial, general office, plant and traffic departments
employed at its Las Vegas, Nevada facility. Excluded: All other
employees, including plant department employees, professional em-
ployees, guards and supervisors as defined in the Act.
a Nevada Revised Statutes Sec. 613.230, et seq.
4 Although, as reported in the transcript of the proceedings, Kinney
testified, "I sent it to all the ones paying dues, according to the seniority list,
contains no provision for union security, agency shop, or
other form of compulsory union membership.
In April 1975, Business Manager and Financial Secretary
Robert A. Kinney mailed a copy of the new collective-
bargaining agreement, with highlights of benefits which the
Union had achieved, together with a membership applica-
tion, to all unit employees, including those who were not
members of the Union.4
Under date of September 30, Kinney sent a followup
letter on a union letterhead to unit employees, including
nonmembers, as well as union members who had not
authorized a dues checkoff and were delinquent in their
dues.5 Among nonmembers who received a copy of this
letter were Shelly McLane Brown and Toni R. Pepe, the
Charging Parties in this proceeding, and Sandra W.
Wheeler. As hereinafter related, Mary A. Reynolds, a
union member who received such a letter, subsequently
tried unsuccessfully to resign from the Union. 6 The letter
addressed to Pepe will serve as a specimen of this mailing:
Sept. 30, 1975
Toni R. Pepe
2627 So. Lamb Blvd.
Las Vegas, Nevada
Dear Ms. Pepe:
We have made numerous efforts to contact you
pertaining to your Union dues. You have received
applications on April 25, 1975 from the Local Union
which you have elected to ignore.
You now owe the Local Union for the month(s) of
April through Sept. Dues are assessed monthly at one
hour of your pay rate, plus $2.00 if paid on time.
Please remit this amount to the Union so you will be
current and all your benefits may take effect.
Sincerely,
Robert A. "Red" Kinney
Business Manager-Financial Secy.
RAK/geh
9/75
Toni Pepe, who had been in the Company's employ for
nearly 2 years, was working as a Clerk IV, in the
commercial department, at the time of the hearing. At no
time during her employment had she been a member of the
Union. On October 3, following receipt of the Union's
letter of September 30, Pepe telephoned Kinney from work
and, after identifying herself both by name and as an
employee of the Company, referred to the union letter and
all the members," it is obvious that Kinney either misspoke himself or that
his answer was inaccurately transcribed. It is obvious that the primary
purpose of this mailing was to solicit nonmember employees to join the
Union.
5 Although Kinney's testimony was not altogether clear on the subject, it
is reasonable to assume that a copy of this letter was mailed only to those
employees mentioned above.
6 Allegations concerning Respondent's conduct in this regard were
added at the outset of the hearing on prior written notice.
472
ELECTRICAL WORKERS, LOCAL NO. 396
told Kinney that she was not a union member and had no
intention of paying union dues. Kinney told her that while
under Federal law the Union was obligated to bargain for
all (unit) employees, without regard to union membership,
and although under state law employees could not be
required to be members of the Union as a condition of
employment, there was no law that said she did not have to
pay union dues. Pepe rejoined that to the best of her
knowledge there was no law which required her to pay
union dues. According to Pepe, Kinney then told her that if
she did not pay her union dues he would refer the claim to
a collection agency and institute court action, if necessary.
Kinney again asked her to identify herself but she replied
that she had already done so and told him that she had to
get back to work.
The same day, Shelly McLane Brown, who had been in
the Company's employ for nearly 3 years, and was
employed as a final account representative at the time of
the hearing, called the Union. Like Pepe, although she had
never been a member of the Union, she too, had received a
copy of the Union's September 30 letter. When Kinney
finally returned her telephone call, Brown told him that she
had called in regard to the union letter, which demanded
payment of dues for the period from April through
September. She told him that she had never been a member
of the Union and did not owe any dues. Kinney then said,
in her words, that the dues in question were "bargaining
dues" which everyone was required to pay. Brown asked
Kinney whether it were not true that the Company was an
open shop. Kinney conceded that it was, but stated that
under Federal law everyone was obliged to pay "bargain-
ing dues." Brown told Kinney he was "full of bologna,"
and that she had no intention of paying any dues. With
that, Kinney told her that if she failed to pay her dues the
matter would be referred to a collection agency or the
small claims court.
Kinney also told Brown that if she agreed to join the
Union at that time he would take up with the executive
board the matter of waiving any past dues. Brown told
Kinney that if he wanted to take the matter to court, she
would see him there with the company lawyer.7 Brown
repeated that she had no wish tojoin the Union and had no
intention of doing so. Kinney remarked that she seemed
quite upset, and asked her to contact him the following
Monday after she had cooled down. Brown told Kinney
that she had nothing more to say and that if he persisted in
harassing her by phone or letter she would see him in court,
and hung up. According to Brown, Kinney remarked that
she was a "feisty little girl" and that they could use
someone like her in the Union.
Sandra W. Wheeler, who was first employed by the
Company from April 1969 to late July 1971, was rehired on
October 1973. At the time of the hearing she was employed
as a service representative in the commercial department.
Early in October, following receipt of the union letter,
Wheeler called Kinney, told him that she did not owe any
union dues, and asked him for an explanation of the letter.
Wheeler told Kinney that she had no intention of paying
any union dues, and he told her that the claim had already
? In the transcript the word after "company" is given as "later." The
word "later" in this context is obviously an error in transcnption
been turned over to a collection agency. Wheeler said,
"Fine," and hung up.
Mary A. Reynolds, an employee of the Company for a
year and a half, and a service representative in the
commercial department at the time of the hearing, had
been a member of the Union until January 1976. About
that time, Reynolds called the Union, identified herself by
name, and stated that she wished to talk to someone about
withdrawing from the Union. Kinney identified himself,
and told her that she had signed a contract with the Union,
and that there was no way she could withdraw. Reynolds
said that she had not called to argue or to register any
complaint but merely wanted to withdraw from the Union,
and told Kinney that she had already notified the payroll
department to discontinue her dues deduction. Kinney
replied, according to Reynolds, that he doubted that "an
act of God could remove [her] from the membership rolls."
Reynolds repeated that she had not called up to argue or
complain but that she no longer wished to belong to the
Union. Kinney stated that the union dues were collectible
and that he would turn the matter over to a collection
agency and take her to court if necessary. Reynolds
rejoined, "Do whatever you have to do, but I will not
voluntarily pay any more dues." Kinney responded, "Well,
you can't be an employee of the telephone company
without being a member." Reynolds told him to do
whatever he wished but that she just did not want to belong
to his organization, and because he had told her that she
could not withdraw, she wanted nothing to do with his
"lousy outfit." Kinney again asked her who she was and
she gave him her name. She, in turn, asked him to identify
himself, and he told her he was "Red" Kinney.
Reynolds wrote the Union a letter of resignation on
January 21, 1976, the same day she called Kinney.
Although the letter was not produced at the hearing,
Reynolds testifying that she had mislaid her copy, Kinney
did not deny that the letter was received. Nor did he deny
Reynolds' testimony that she was current in her dues at the
time of her resignation.
Admittedly, the Union has taken no further action
against Pepe, Brown, and Wheeler to enforce payment of
dues, nor has it since threatened to do so. Similarly, no
action has been taken against Reynolds to enforce
payment of dues since her resignation.
The record leaves no doubt that, in his capacity as union
representative, Kinney made a written demand, by letter
dated September 30, on unit employees, including Pepe,
Brown, and Wheeler, who had at no time been members of
the Union, for payment of union dues for the months of
April to September, inclusive. Inasmuch as the statutes of
the State of Nevada expressly prohibit agreements requir-
ing union membership as a condition of employment, these
nonunion employees could not have been required to
become or remain union members in order to retain their
jobs. It is obvious that as soon as the Union secured its
collective-bargaining agreement in April 1975 it embarked
on a campaign to solicit the membership of nonunion
employees by the distribution of membership applications,
copies of the contract, and other union literature. When
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this failed to produce the desired results, the Union
attempted to compel nonunion employees to pay union
dues or its equivalent as a condition of employment with
the Company, despite the fact that they had never joined
the Union, and that the "right-to-work" statute precluded
union-security requirements.
Although Kinney ackowledged that he probably spoke to
Pepe, Brown, and Wheeler, among other unit employees,
both union and nonunion,8 during the period in question,
he could not recall details of these conversations. He
testified, however, that in soliciting the membership of
nonunion employees, he followed a uniform policy of
informing all who communicated with him that the
Landrum-Griffin Act prohibited discrimination against
employees, based on union membership; that the Union
was required to file grievances for all unit employees; and
that state law prohibited unions from requiring member-
ship as a condition of employment. He admitted, however,
that he told employees to whom he spoke that he knew of
no law which prohibited a union from charging nonmem-
bers a "bargaining fee," and mentioned that, in some
instances, employees had refused to join a union out of
religious conviction, and implied that, in those circum-
stances, they paid a "bargaining fee." He denied, however,
that he ever threatened nonunion employees that he would
turn over claims against them for union dues to a collection
agency or institute court proceedings for that purpose.
To the extent that this was intended as a denial of the
statements attributed to him by each of the three nonunion
employees who testified, it is found insufficient to over-
come the more positive, credible, and mutually corrobora-
tive testimony of these employees. Their testimony that,
even after they explained that they were not then, and
never had been union members, and that they had no
obligation to pay dues, Kinney told them that he would
take steps to enforce payment, is consistent with his
contention that nonunion employees were required to pay
their pro rata share of the cost of union representation.
Kinney left no doubt, both in his statements to nonunion
employees as well as at the hearing, that he believed that
the Union had a right to require nonunion employees to
pay the equivalent of union dues for the privilege of being
represented by the Union. In short, Kinney was attempting
to impose on nonunion employees what amounted to an
agency shop, which, like the union shop, is prohibited by
state law.9 Moreover, Kinney conceded that he told union
members who contacted him, following the September 30
letter, that although the executive board had authorized the
waiver of delinquent dues, the Union would refer claims,
presumably accruing in the future, to a collection agency or
resort to other methods of enforcing payment. It is
altogether probable that, in his zeal to recruit nonunion
employees as members, Kinney did not differentiate
between union and nonunion employees in warning them
of the consequences of nonpayment of dues. This conclu-
sion is warranted from the uncontradicted evidence that
" According to Kinney, following the mailing of the letter of September
30, over a period of a week or 10 days, he received an average of 25 to 30
calls a day, beyond normal union business calls from unit employees.
9 Independent Guard Association, Local No. I v. Wackenhut Services, Inc.,
522 2d 1010 (Nev. Sup. Ct. 1974), 86 LRRM 2818.
o1 Aeronautical Industrial District Lodge 751, affiliated with the Interna-
Kinney sent letters to Pepe, Brown, and Wheeler, nonun-
ion employees, demanding payment of union dues for the
period from April to the end of September. If Kinney were
uncertain as to the membership status of any unit
employees, he could have readily verified the fact by
reference to the union membership roster or other records.
But, even if he had erroneously assumed that they were
union members, this would have afforded no justification
for demanding payment of union dues from them. Since
they were not union members, and under state law could
not be required to become or remain members in order to
retain their jobs, it was unlawful for the Union to demand
that they pay union dues or to threaten them with
collection or court proceedings to compel them to do so.
With regard to union members, who had voluntarily
elected to join the Union, there was nothing unlawful in
requiring them to pay their dues or in threatening them
with legal action for failure to pay delinquent dues, as long
as they elected to remain members of the Union. The
proviso to Section 8(b)(1)(A) especially vouchsafes to a
labor organization the right to prescribe its own rules with
respect to the acquisition or retention of membership. The
Union's constitution and bylaws contain no procedure for
resignation or withdrawal, except under conditions of
honorable withdrawal, where the member accepts a
supervisory position, leaves the industry, or is disabled
from working for an extended period of time. When asked
how a union member could resign from the Union, Kinney
testified, he merely referred the member to the article
dealing with honorable withdrawal. According to Rey-
nolds' credited testimony, he told her in no uncertain terms
that there were no other circumstances under which she
could resign from the Union.
In the absence of any stated procedure under the
Union's constitution and bylaws for voluntary resignation
from membership, or any other rules respecting the
acquisition or retention of membership, it has been held
that a member may resign at will.10 The issue, however, is
not whether the Union had the right to prevent Reynolds
from resigning but whether it could with impunity threaten
Reynolds with loss of employment if she failed to remain a
member of the Union.
Accordingly, when Kinney stated to Reynolds that she
could not resign from the Union and still remain employed
by the Company, he was, in effect, asserting that member-
ship in the Union was required as a condition of her
continued employment, contrary to the express prohibition
of the state statute, which proscribes any form of union
security. It is immaterial that Reynolds may have been
aware that she could not legally be required to remain a
member of the Union in order to retain her job. For, the
tional Association of Machinists & Aerospace Workers, AFL-CIO (The Boeing
Company), 173 NLRB 450, 452 (1968); Local Union No. 621, United Rubber,
Cork, Linoleum and Plastic Workers of America, AFL-CIO (Atlantic
Research Corporation d/b/a R & G Sloane Manufacturing Division of Atlantic
Research Corporation), 167 NLRB 610(1967).
474
ELECTRICAL WORKERS, LOCAL NO. 396
coercive effect of the threat to job security is not dependent
on the Union's ability to carry out the threat.I
It is, therefore, found, on the basis of the foregoing and
upon the entire record, that on or about October 3, 1975,
Respondent through Union Representative Kinney, threat-
ened to take action against Pepe, Brown, and Wheeler,
nonunion bargaining unit employees, to enforce payment
of union dues, despite the fact that they had never been
union members and that under the "right-to-work" laws of
the State of Nevada, could not be required to become or
remain members of the Union as a condition of employ-
ment. It is further found that Respondent, through Kinney,
stated to these employees that the Union could lawfully
require them to pay "bargaining dues" for the privilege of
receiving union representation, in effect, seeking to impose
agency shop conditions as a requirement for employment,
contrary to the "right-to-work" laws of the State.
It is also found that, in January 1976, Respondent,
through Kinney, stated to Reynolds that she could not
resign and would not be permitted to resign from the
Union if she wished to remain in the Company's employ,
thereby, in effect, attempting to impose illegal union-
security conditions on her right to continued employment,
in violation of the laws of the State of Nevada, and the
provisions of Section 8(a)(3) of the Act.
It is therefore found that by the foregoing conduct,
Respondent has restrained and coerced employees in the
exercise of the rights guaranteed in Section 7, thereby
engaging in unfair labor practices within the meaning of
Section 8(b)( I )(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Union set forth in section
III, above, occurring in connection with the Employer's
operations described in section 1, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent Union has engaged in the
unfair labor practices set forth above, it will be recom-
II International Brotherhood of Teamsters. Chauffeurs. Warehousemen and
Helpers of America, Local No. 729 (Penntruck Company, Inc.), 167 NLRB 147
mended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Central Telephone Company, a Delaware corpora-
tion, with an office and principal place of business in Las
Vegas, Nevada, is, and at all times material herein has
been, an employer engaged in commerce and in an
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act, and the jurisdictional standards
of the Act.
2. International Brotherhood of Electrical Workers
Local No. 396, is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening on or about October 3, 1975, to take
action against employees Pepe, Brown, and Wheeler, to
enforce payment of union dues despite the fact that they
had never been union members, and under the "right-to-
work" laws of the State of Nevada, could not have been
required to become or remain members of the Union as a
condition of employment; by stating to these employees
that the Union could lawfully require them to pay
"bargaining dues" in order to secure union representation,
thereby in effect seeking to impose agency shop conditions
as a requirement for employment, contrary to the "right-to-
work" laws of the State; and, by stating to Reynolds in
January 1976 that she could not resign and would not be
permitted to resign from the Union if she wished to remain
in the Company's employ, thereby in effect attempting to
impose union-security conditions on her right to continued
employment, in violation of state law and the Act,
Respondent has restrained and coerced, and is restraining
and coercing, employees in the exercise of rights guranteed
in Section 7, thereby engaging in unfair labor practices
within the meaning of Section 8(bX IXA) of the Act.
4. The unfair labor practices in which Respondent
Union has engaged are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
(1967); Local 511, St. Louis Offset Printing Union, AFL-CIO (Mendle Press,
Inc.), 130 NLRB 324, fn. 1 (1961).
475