United Automobile Workers Local 785

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 704 (N.L.R.B. 1986)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Automobile Workers Local 785, affiliated
with the International Union , United Automo-
bile, Aerospace & Agricultural Implement
Workers of America, UAW and The Dayton
Forging & Heat Treating Company . Case 9-
CB-6261
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 21 May 1986 Administrative Law Judge
Burton S. Kolko issued the attached decision. The
General Counsel filed limited exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order.'
THE REMEDY
Having found that the Respondent has engaged
in unlawful conduct in violation of Section
8(b)(1)(A) and (2) of the Act, we shall order it to
cease and desist and to take certain affirmative
action necessary to effectuate the policies of the
Act. Specifically, we shall require the Respondent
to reimburse with interest any employee who ten-
dered dues and/or reinstatement fees 9 July 1985
and thereafter in reliance on the representations in
the Respondent's letters that employees must pay
such dues and/or fees under penalty of termination.
Interest shall be computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977). Which, if any, employees are entitled to
such reimbursement shall be established in a com-
pliance proceeding.
ORDER
The National Labor Relations Board orders that
the Respondent, United Automobile Workers
Local 785, affiliated with the International Union,
United Automobile, Aerospace & Agricultural Im-
plement Workers of America, UAW, Dayton,
Ohio, its officers, agents, and representatives, shall
1. Cease and desist from
' The General Counsel excepts to the judge's failure to provide the
traditional make-whole remedy. We find merit in this exception and shall
modify the Order and notice as requested See Auto Workers Local 376
(Emhart Industries), 278 NLRB 285 (1986)
(a) Threatening employees with discharge for re-
fusing to tender periodic dues to the Respondent
for a time when they were not contractually obli-
gated to do so, causing the deduction of back dues
and reinstatement fees from employees by using
signed authorizations that were not voluntarily ob-
tained, and using the current security provision for
the collection of pre-contract arrears.
(b) Threatening the Employer with the invoca-
tion of an invalid security provision, requesting and
causing the Employer to deduct dues and reinstate-
ment fees from employees whose authorizations
were not voluntarily obtained, and causing the Em-
ployer to use the current security provision for the
collection of pre-contract arrears.
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer reimbursement with interest to those
employees who tendered back dues and/or rein-
statement fees 9 July 1985 and thereafter in reliance
on the Respondent's letters that employees must
pay such dues and/or fees under penalty of termi-
nation.
(b) Post at its offices and meeting halls in
Dayton, Ohio, copies of the attached notice
marked "Appendix."2 Copies of the notice, on
forms provided by the Regional Director for
Region 9, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any
other material.
(c) Mail forthwith to the Regional Director for
Region 9 copies of the notice for posting by The
Dayton Forging & Heat Treating Company, if it is
willing, in places where notices to its employees
are customarily posted.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
281 NLRB No. 102
AUTO WORKERS LOCAL 785 (DAYTON FORGING)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten employees with dis-
charge for refusing to tender periodic dues to the
Respondent for a time when they were not con-
tractually obligated to do so, causing the deduction
of back dues and reinstatement fees from employ-
ees by using signed authorizations that were not
voluntarily obtained, and using the current security
provision for the collection of pre-contract arrears.
WE WILL NOT threaten the Employer with the
invocation of an invalid security provision, nor re-
quest and cause the Employer to deduct dues and
reinstatement fees from employees whose authori-
zations were not voluntarily obtained, nor cause
the Employer to use the current security provision
for the collection of pre-contract arrears.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer to reimburse with interest those
employees who tendered back dues and/or rein-
statement fees 9 July 1985 and thereafter in reliance
on our letters that employees must pay such dues
and/or fees under penalty of termination.
UNITED AUTOMOBILE WORKERS
LOCAL 785, AFFILIATED WITH THE
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE & AGRI-
CULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW
Janette Johnson, Esq., for the General Counsel.
Frederick G. Cloppert and Susan Truitt, Esgs. (Cloppert,
Portman, Sauter & Latanick), of Columbus , Ohio, for
the Respondent.
John J. Heron, Esq. (Pickeral, Schaeffer & Ebeling), of
Dayton, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON S. KoLKo, Administrative Law Judge.
Dayton Forging and Heat Treating Company (the Em-
ployer) filed a charge on 16 August 1985 alleging viola-
tions of Section 8(b)(1) and (2) of the Act,' by United
1 29 U.S .C. § 158.
705
Automobile Workers Local 785, affiliated with the Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (Respondent)
for its conduct during a contract hiatus period. The com-
plaint that the General Counsel issued on 29 August 1985
alleges Respondent attempted to collect dues and rein-
statement fees from employees who were in arrears
during the contract hiatus period , and that Respondent
threatened employees with discharge by the Employer
for failure to pay these items.
Respondent 's answer filed 10 September 1985 denies
the allegation and affirms that it has acted in good faith
at all times . A hearing was held 16 October 1985 in
Dayton , Ohio, and I find for the reasons set forth below
that Respondent has engaged in unfair labor practices
within the meaning of Section 8 (b)(1) and (2) of the
Act.2
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
Respondent and Employer were parties to two collec-
tive-bargaining agreements during the past 4 years, the
first covering the time period of 6 May 1982 through 4
May 1984 and the second covering from 24 June 1985
until the present . Both agreements contained a union-se-
curity clause and dues-checkoff provision that states:
ARTICLE 3
UNION SHOP & CHECK-OFF OF UNION
DUES
10. It shall be a condition of employment that all
employees of the Company covered by this Agree-
ment, who are members of the Union , in good
standing, on the effective date of this Agreement,
shall remain members in good standing, and those
who are not members on the effective date of this
Agreement shall on the thirty-first (31st) calendar
day following the effective date of this Agreement,
become and remain members in good standing in
the Union.
It shall also be a condition of employment that all
employees covered by this Agreement and hired on
or after the effective date of this Agreement shall,
on the thirtieth (30th) calendar day following the
beginning of such employment, become and remain
members in good standing in the Union.
The Union's constitution defines membership in good
standing in the following way:
ARTICLE 16
INITIATION FEES AND DUES
Section 8 . Any member who has not paid her/his
dues during the calendar month in which they are
2 Respondent is a labor organization within the meaning of Sec . 2(5) of
the Act, and the Charging Party is an employer engaged in commerce
within the meaning of Sec . 2(2), (6), and (7) of the Act.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
due shall automatically become delinquent except as
otherwise provided in this Article. In order to
regain good standing membership , s/he must fully
reinstate her/himself in accordance with Section 9
of this Article.
Section 9. The reinstatement fee established by a
Local Union shall be not less than the regular initi-
ation fee charged by the Local Union, plus the dues
for each month of delinquency in dues up to either
the date of automatic suspension or the date of rein-
statement as the Local Union in its discretion may
determine, plus the current month's dues. Such rein-
statement fee shall be uniformly applied to all delin-
quent members of the Local Union.
During the period from 5 May 1984 through 23 June
1985 the parties were engaged in negotiations concerning
the contract that went into effect on 24 June. Because
there was no contractual obligation, Ted Amick, Dayton
Forging's employee relations manager, suspended the de-
duction of dues for the Union during the contract hiatus
period. The responsibility for the collection of dues was
given to the Union's financial secretary, Folley Patrick.
According to James Stout, the Union's president, the
procedure for collection of dues was that each depart-
ment's steward would collect the dues from the members
and submit them to Patrick. When members became in
arrears on their payments, Patrick would notify the ne-
gotiating committee and the member. If the member did
not pay up he would no longer be considered a member
in good standing with the Union.3
Approximately 25 employees failed to pay their dues
during the contract hiatus period. Patrick attempted to
correct the situation through a letter to Amick dated 9
July listing all employees who were in arrears on their
dues. The letter stated that continued employment of
these individuals would be at the Company's liability.
Patrick also sent a letter to each individual who was in
arrears on his dues stating that the employee had lost his
good standing with the Union and was therefore in vio-
lation of the contract with Dayton Forging. The letter
also stated that the Company had the right and responsi-
bility to terminate the employee unless he reinstated him-
self with the Union by applying for the deduction of
back dues and a $20 reinstatement fee. Union officials in
the various departments, including Stout, distributed the
letters. Stout had no knowledge of the contents of the
letter until after he had distributed several of them.4
One of the employees who had received a letter, Don
Columber, brought the contents of the letter to Stout's
attention. The employee was concerned about the letter
because he was under the assumption that the members
were allowed to make periodic payments until they
cleared the amount they owed in back dues. After read-
' Stout testified that he felt the members were in arrears on their dues
even though no contract was in effect. He stated that the Union was rep-
resenting the members through negotiating , processing grievances, and
other union activities , for which the Union was entitled to the payment
of dues
4 Stout testified that he knew Patrick was making a distribution con-
cerning dues , however he thought Patrick was only distributing the cards
that told employees the amount of dues they owed the Union,
ing the contents Stout asked the employee to wait before
taking any action concerning the letter so that Stout
could hold an executive meeting to clarify the situation.5
Stout also asked Amick to delay deducting dues until the
Union's internal problem could be corrected.
On 17 July the executive board of the Local Union
held a meeting to discuss the problems they were en-
countering with the collection of back dues. The com-
mittee established three options of payment for employ-
ees so that they could clear their back dues and become
members in good standing . The first option was to pay
the entire amount of back dues in one lump sum. A
second option given to the employees was to sign an au-
thorization for the deduction of $5 per pay period until
the arrears were paid. If an employee chose either of
these options the reinstatement fee, which is authorized
in the constitution, would be waived. Employees who
did not choose either of these options could pay a rein-
statement fee each month but would never become mem-
bers in good standing with the Union.6
Shortly after the executive meeting Stout informed
Amick of the Union's intention to request that employees
pay $5 per pay period until their arrears were cleared.
Amick agreed to deduct the dues if employees signed
cards authorizing the Employer to do so. Stout also ex-
plained that the Union was not requesting that the Com-
pany discharge anyone for failure to pay back dues, and
if Amick interpreted Patrick's letter to mean that he
should forget it .7 Amick began deducting past dues on 1
August and was still deducting them at the time of the
hearing. On 23 July the Union sent a letter to Amick re-
questing the deduction of a $20 reinstatement fee from
seven employees. The Employer deducted the fee from
six of the employees.8
Stout also attempted to relay the information concern-
ing the outcome of the executive meeting to those em-
ployees who had received Patrick's letter. Stout testified
that by talking to the employees either individually or in
groups he explained the situation to all employees who
had received the letters.9 An explanation of the options
was given to the employees, and many employees then
signed authorization cards for the deduction of dues.
II. STOUT'S CONVERSATIONS WITH FAULKNER
On 29 July 1985 Stout discussed the problem of back
dues with employee Wayne Faulkner. Stout gave Faulk-
ner a copy of the constitution, which explained the re-
quirements necessary to become a member in good
5 Stout called the executive board meeting because there was a dis-
crepancy in the handling of the dues between the various union officials
s These options were taken from the testimony of Stout and the min-
utes of the 17 July meeting
7 On 7 August an International representative of the Union also con.
tacted Amick concerning the situation The letter expressed the Union's
position that the Company had fulfilled its legal and contractual obliga-
tion and stated the hope was that the letter would be the basis of a with-
drawal of the charges filed Amick told the Union that the charges would
remain
s The Union corrected the list after concluding that one employee had
paid his dues
e Although Stout testified that he had talked to the employees, the evi-
dence is not conclusive that he reached all the employees that had re-
ceived the Patrick letter
AUTO WORKERS LOCAL 785 (DAYTON FORGING) 707
standing . During the conversation Stout told Faulkner
that he would have to pay his back dues to become a
member in good standing . Stout had another conversa-
tion with Faulkner after the executive meeting during
which he explained the options available to clear the ar-
rears in Faulkner 's dues.
Faulkner testified that Stout threatened him during
both conversations. During the first conversation Stout
said , "Pay up or get out," and "You must become a
member in good standing to work here." After the exec-
utive meeting when Stout was explaining the reinstate-
ment fee he said , "You would never become a member
in good standing, but it's better than getting fired ." Stout
denies threatening Faulkner during either conversation.
Stout appeared to be a credible witness, and I credit his
denial . But I do not find that Stout gave Faulkner no ex-
planation of the consequences of not paying dues.
On both occasions Faulkner stated that he felt he did
not owe the Union anything , and that he would take his
30-day grace period before he made a decision . Faulkner
testified credibly that Stout never mentioned the Patrick
letter in the conversations.
III. DISCUSSION
The General Counsel and the Charging Party contend
that Respondent violated Section 8(b)(1) and (2) by at-
tempting to collect dues and reinstatement fees from em-
ployees who were in arrears on their union dues during
the contract hiatus period . In their attempt to collect
back dues, the Union sent letters to all employees who
were in arrears on their dues stating that they must again
become members in good standing to work at the Com-
pany. The threat to invoke the security provision of the
contract for the discharge of the employees is implicit in
the letter.
A similar letter was sent to Amick, the Employer's
representative, warning of the liability for the continued
employment of employees not in good standing with the
Union. Although the Union never requested the dis-
charge of any individual, the intention of the Union's fi-
nencial secretary in the 9 July letter was apparent. The
Union did cause the Employer to withhold dues under
the security provision of the current collective -bargain-
ing agreement for the dues owed during the precontract
period. Because of the Union's conduct I find that the
back dues deduction was not conducted pursuant to
valid authorizations but was invalidly conducted through
the use of the current union -security provision. By the
Union 's threat in both letters to discharge employees
through the use of a security provision , which was not in
effect when the arrears occurred , and by causing the
Employer to withhold dues pursuant to the dues check-
off of the current security provision, the Union violated
both Section 8(b)(1) and (2) of the Act. See Auto Workers
Local 376 (Emhart Industries), 278 NLRB 285 (1986);
Carpenters (Campbell Industries), 243 NLRB 147 (1979).
The Union's request to the Employer on 23 July that
caused the deduction of a $20 reinstatement fee from six
employees also violated Section 8 (b)(1) and (2) of the
Act. Although the Union waived the reinstatement fee
for those who authorized the Union's back dues deduc-
tion, six employees were still charged the fee. Stout
stated that the fee was authorized in the constitution for
any employee who had lost his good standing by failure
to pay union dues. However, the loss of good standing in
this case was caused by the lack of payment during the
contract hiatus period in which the employees had no
statutory obligation to remit dues to retain their jobs.
Charging a reinstatement fee to those employees who
would not adhere to the Union's demand for back dues is
equivalent to the threats of discharge for failure to pay
the dues. The Union's requirement that the six employees
pay this penalty fee to retain their jobs under the current
security provision is as violative of the Act as the actual
threat of discharge. t ° Respondent violated Section
8(b)(1) and (2) by causing the Employer to deduct the
reinstatement fee from the six employees. Spector Freight
System, 123 NLRB 43 (1959).
Respondent alleges that if any misconduct occurred it
was unintentional and was quickly repudiated by the
action taken at the 17 July executive board meeting.
Stout testified that after the meeting he told the employ-
ees, either individually or in groups, to disregard Pat-
rick's letter and then explained the three options avail-
able to them. In Passavant Memorial Area Hospital, 237
NLRB 138 (1978), the Board established "adequate pub-
lication to the employees involved" as an important cri-
terion for determining whether a repudiation is effective.
Using this standard, the Board in a recent case similar to
this one held that unless it is shown that all the employ-
ees who received the unwarranted threat also receive a
withdrawal the repudiation is ineffective. Auto Workers
Local 376 (Emhart Industries), 278 NLRB 285 (1986).
The evidence here is not conclusive to show that all em-
ployees who received the threat also received a retrac-
tion, so I therefore find that the attempted repudiation
by the Union's executive board was inadequate.
CONCLUSIONS OF LAW
1. Dayton Forging and Heat Treating Company, Inc.
is an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
2. United Automobile Workers Local 785, affiliated
with the International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening employees with discharge for refus-
ing to tender periodic dues to Respondent for a time
they were not contractually obligated to do so, by caus-
ing the deduction of back dues and reinstatement fees
from employees by using signed authorizations that were
not voluntarily obtained , and by using the current securi-
ty provision for precontract arrears, Respondent violated
Section 8(b)(1) and (2) of the Act.
10 The letter sent to Amick requesting the deduction of the reinstate-
ment fees states that it is to be done pursuant to Art. 3 of the labor agree-
ment . Art. 3 of the agreement establishes that employees must be mem-
bers in good standing with the Union to retain their jobs with the Em-
ployer.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By threatening the Employer with the invocation of by using the current security provision for pre-contract
an invalid security provision, by causing the Employer arrears, Respondent violated Section 8 (b)(2) of the Act.
to deduct dues and reinstatement fees from employees [Recommended Order omitted from publication.]
whose authorizations were not voluntarily obtained, and