Intl. Union of Elevator Constructors Local 8

National Labor Relations Board - Board Decisions

Apr 4, 1980

248 N.L.R.B. 951 (N.L.R.B. 1980)

INTL. UNION OF ELEVATOR CONSTRUCTIONS LOCAL 8 951
International Union of Elevator Constructors Local
Union No. 8, AFL-CIO (San Franciso Elevator
Co.) and James Finney. Case 20-CB-4581
April 4, 1980
ORDER DENYING MOTION
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On June 26, 1979, a three-member panel' of the
National Labor Relations Board issued a Decision
and Order,2 in the above-entitled proceeding in
which it, inter alia, adopted the Administrative
Law Judge's finding that Respondent violated Sec-
tion 8(b)(l)(A) of the National Labor Relations
Act, as amended, by maintaining article XI, section
3, of its constitution and bylaws which, in essence,
provides that all fines and assessments must be paid
by members before dues.
On October 1, 1979, Respondent filed a motion
for reconsideration by the full Board. Thereafter
General Counsel filed a brief in opposition.s
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 the panel which par-
ticipated in the Decision and Order.4
Respondent argues that the Board incorrectly
found that the mere existence of a rule requiring
the payment of fines and assessments before dues
constitutes an implicit threat to the employment
status of an employee who has not paid a fine or an
assessment. Respondent argues that some actual
threat to the employee's employment status is re-
quired. We find no merit in Respondent's motion
but have decided to restate briefly our reasons for
finding the violation.
A union-security clause utilizes the continuing
threat of job loss to exert pressure on an employee
to maintain union membership status. The legality
of such a threat depends on the express language of
Section 8(a)(3) of the Act, which authorizes speci-
fied union-security agreements as an exception to
the general policy of the Act "to insulate employ-
ees' jobs from their organizational rights."6 Both
Section 8(aX3) and 8(b)(2) of the Act make clear,
Members Jenkins, Murphy, and Truesdale.
s 243 NLRB No. 10
s The Building and Construction Trades Department. AFL-CIO, filed
a motion for leave to file a brief, simultaneously submitted, in support of
Respondent's motion. The motion is granted and the brief has been con-
sidered by the panel in reaching its determination herein.
Insofar as Respondent's motion urges consideration of this case by
the full Board it is hereby denied. This case has been considered by the
panel which originally decided it, with Member Penello substituting for
former Member Murphy. Enterprise Industrial Piping Company, 118
NLRB 1 (1957); Florida Steel Corporation, 224 NLRB 1033 (1976).
s The Radio Officers' Union of the Commercial Telegraphers Union,
AFL-CIO, [A. H. Bull Steamship Co.] v. N.L.R.B.. 347 U.S. 17, 40 (1954).
248 NLRB No. 118
however, that the job-related threat inherent in
union-security agreements must address only "the
failure of the employee to tender periodic dues and
initiation fees uniformly required as a condition of
acquiring or retaining membership." In this regard,
it is well established that threats of employment
loss under union-security provisions cannot encom-
pass the nonpayment of union fines or assess-
ments. 6
In the present case, recognition of a union-securi-
ty clause directly linking Respondent's article XI,
section 3, to an employee's job tenure reduces "the
long leap in logic" decried by our dissenting col-
league into a short, inevitable step. Respondent's
rule provides that dues cannot be paid until fines
and assessments have been paid. Employees, know-
ing that their payment of dues is conditioned on
prior payment of any fines and assessments owed,
can reasonably assume that they must make all of
those payments in order to avoid the risk that Re-
spondent will seek their discharge. The Act does
not require them to take the risk in order to test
the validity of their assumption, nor does it permit
Respondent to threaten action indirectly which it
cannot threaten directly.
We do not gainsay a union's legitimate interest in
a rule facilitating the expeditious collection of fines
and assessments. Such a rule must nevertheless
avoid invoking the threat of employment-related
sanctions.7 The implicit threat imposed by the co-
ordinated operation of Respondent's rule and a
union-security clause is an actual threat. No more
explicit coercion is necessary to find a violation of
Section 8(b)(1)(A). 8
It is hereby ordered that Respondent's motion
for reconsideration be, and it hereby is, denied.
MEMBER TRUESDALE, dissenting:
Unlike my colleagues, I would grant Respon-
dent's motion for reconsideration and clarification.
6 See, e.g., Spector Freight System, Inc., 123 NLRB 43 (1959); The
Great Atlantic a Pacific Tea Company (Pittsburgh Bakery), 110 NLRB 918,
922 (1954).
7 Our analysis of 8(bXIXA) coercion herein is in full accord with the
Supreme Court's interpretation of that section and its provision for the
maintenance and enforcement of union rules. In Scofield v. VN.L.R.B., 394
U.S. 423 (1969), the Court reiterated its acceptance of the Board's distinc-
tion between permissible internal sanctions and proscribed external sanc-
tions to enforce a union rule. The Court further stated that "it has
become clear that if the rule invades or frustrates an overriding policy of
the labor laws the rule may not be enforced, even by fine or expulsion,
without violating § 8(bXl)." 394 U.S. at 429.
8 See Bay Counties District Council of Carpenters and Joiners of America,
AFL-CIO (Associated Homebuilders of the Greater East Bay, Inc.), 145
NLRB 1775. 1784 (1964). The case relied on heavily by Respondent, In-
ternational Longshoremens and Warehousemen's Union. Local 13 Pacific
Maritime Assoication), 228 NLRB 1383 (1977). is not controlling here
The relevant collective-bargaining agreement in that case did not contain
a union-security clause. There was consequently no inherent implied
threat of an employment-related sanction to enforce the union's internal
rule, and the General Counsel appropriately did not assert that the rule in
that case was unlawful per se.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent complains that the Board's Decision
and Order adopts, by footnote and without addi-
tional explication by the Board, the Administrative
Law Judge's finding that maintenance in Respon-
dent's constitution or bylaws of a provision requir-
ing payment of all fines and assessments by Re-
spondent's members before their dues will be ac-
cepted is a per se violation of Section 8(b)(1)(A) of
the Act. Respondent urgues that such a finding is
without precedent, is inconsistent with cases such
as Scofield v. N.L.R.B., 394 U.S. 423, 430 (1969),
and, indeed, is in apparent conflict with the Board's
own decisions, including its recent decision in In-
ternational Longshoremen 's and Warehousemen 's
Union, Local 13 (Pacific Maritime Assoication), 228
NLRB 1383 (1977), enfd. 581 F.2d 1321 (9th Cir.
1978).
Although I was part of the panel that adopted
the Administrative Law Judge's 8(b)(l)(A) finding,
on reflection I think our adoption of that finding
was too hasty and, perhaps, ill-considered. In this
connection, I agree with Respondent's contention
that this is a case for which there is little direct
precedent, and one in which a clear articulation of
relevant principles and policies would be advis-
able.9 Certainly, nothing contained in my col-
leagues' response to the motion is sufficient to dis-
pose of the various, and troublesome, arguments
which Respondent has raised in its motion. Thus, I
find the "implied threat" rationale which my col-
leagues advance wholly inadequate to negate a
union's undoubted right to establish and reasonably
enforce internal rules that serve a legitimate union
interest and do not trench upon any policy embed-
ded in the Act. Here, Respondent asserts that a fair
reading of its rule shows it is aimed at encouraging
I This is particularly the type of case in which a clear explication of
our view of the law would be useful since there is a stronll possibility
that our holding will have a substantial impact beyond the interest of the
immediate parties.
prompt payment of fines and assessments, and at
alerting members that their union standing is imper-
iled if they do not make such payment. It seems to
me a long leap in logic to conclude that a rule that
says nothing about the employment relationship
nevertheless impliedly threatens the employees' em-
ployment and, for that reason, is a per se violation
of the Act.1 0 Indeed, if there is an 8(b)(1)(A) viola-
tion here, my colleagues have not hit upon a ratio-
nale for it.
In sum, this is a case in which the Administrative
Law Judge arrived at his finding of a violation
without extensive discussion, let alone rationale.
The Board, in turn, adopted his finding without
further explication. It may well be that Respondent
in its original exceptions to the Administrative Law
Judge's recommended Order failed to direct the
Board's attention with sufficient particularity to the
significance of the Administrative Law Judge's
finding on this issue. That oversight, if such it be,
has been remedied by the instant motion. In these
circumstances, and given the potential impact of
the case, I dissent from my colleagues' refusal to
grant the motion.
"' Bay Counties District Council of Carpenters and Joiners of America.
AFL-CIO (Associated Homebuilders), 145 NLRB 1775 (1964), cited by my
colleagues apparently in support of their "implied threat" rationale, af-
fords little support for their view. The respondent unions in that case ac-
tually transferred dues payments and thereafter explicitly threatened em-
ployees with loss or impairment of employment for failure to pay dues.
I I One can hardly quarrel with the majority's observation that the Act
will not permit a respondent "to threaten action indirectly which it
cannot threaten directly." However, as is true of much that is said by the
majority in this case, one can, and should, question the relevance of that
observation here. Indeed, the majority has taken pains to gloss over the
fact that its finding of a violation is predicated on one assumption piled
on another. Simply stated, nowhere does the majority either point to a
statement or conduct by this Respondent that could be interpreted as a
threat--direct or veiled-to affect a member's employment status, or cite
any clear authority for its novel contention that the existence of a union-
security clause here warrants finding an "inherent implied threat of an
employment-related sanction to enforce the union's internal rule .... "