Aerospace Workers, District No. 15

National Labor Relations Board - Board Decisions

Aug 24, 1977

231 N.L.R.B. 602 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Machinists and Aerospace
Workers, District No. 15, AFL-CIO and Carl
Nocera and Burroughs Corporation, Party to the
Contract. Case 22-CB-3385
August 24, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on November 22, 1976, by
Carl Nocera, an individual, herein called the Charg-
ing Party, and duly served on International Associa-
tion of Machinists and Aerospace Workers, District
No. 15, AFL-CIO, herein called Respondent, the
General Counsel of the National Labor Relations
Board by the Regional Director for Region 22, issued
a complaint and notice of hearing on January 7,
1977, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(b)(l)(A)
and (2) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the
charge, complaint, and notice of hearing before an
Administrative Law Judge were duly served on the
parties to this proceeding.
Respondent filed a Motion for Summary Judgment
and memorandum in support thereof on February
18, 1977, requesting dismissal of the complaint. On
February 25, 1977, the Regional Director issued an
"Order Granting an Extension of Time for Filing
Answer and Postponing Hearing." On February 28,
1977, Burroughs Corporation, herein called the
Employer, filed a statement of position in response to
Respondent's motion arguing that a hearing should
be held on the numerous factual issues presented
herein. Thereafter, on March 2, 1977, the Board
issued an order transferring proceedings to the Board
and a Notice To Show Cause. On March 17, 1977,
counsel for the General Counsel filed a Cross-
The pertinent parts of the union-security agreement are set forth here:
3.01 It shall be a condition of continued employment that all
employees of the Company covered by this Agreement who are
members of the Union in good standing... shall remain members in
good standing . . . It shall also be a condition of continued
employment that all employees covered by this Agreement and hired
on or after its effective date, shall on or within ten (10) days after the
thirtieth (30th) day following the beginning of such employment,
become and remain members in good standing in the Union.
3.02 For the purposes of this Article, to be a "member in good
standing" is to tender to the Union the initiation and/or reinstatement
fee uniformly required and the periodic dues uniformly required.
3.03 No employee shall be terminated under this Article, however,
unless:
(a) The union first has notified him by registered letter of his
delinquency on not tendering the initiation and/or reinstate-
ment fee and/or periodic dues uniformly required and warning
231 NLRB No. 103
Motion for Summary Judgment and memorandum
in support thereof.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
A review of the entire record herein, including the
pleadings, the motions, and the submissions of the
parties, reveals that from March 17, 1975, the
Employer and Respondent were parties to a collec-
tive-bargaining contract effective to March 18, 1977,
which contained a valid union-security provision and
provided for arbitration.' On July 10, 1975, Respon-
dent requested that the Employer discharge certain
employees, including the Charging Party, for failure
to pay May and June 1975 dues pursuant to the
union-security provision. The Employer refused
Respondent's request, citing Respondent's failure to
comply with the notice provision of the union-
security clause. The Charging Party tendered his
dues on July 21, 1975, but Respondent rejected it.
Thereafter, on July 23, 1975, Respondent filed four
grievances emanating from the Employer's refusal to
comply with Respondent's discharge demand and
again requesting the terminations. The dispute was
submitted to arbitration in accord with the provi-
sions of the collective-bargaining contract. On June
1, 1976, Respondent's authority to maintain a union-
security clause was withdrawn in Case 22-UD-146.
Thereafter, on June 3, 1976, the arbitrator issued an
interim award of arbitrator which denied Respon-
dent's grievances,2 but did not determine the respon-
sibilities of the individual employees, including the
Charging Party, with respect to the payment of back
dues. The Employer and Respondent settled the dues
obligation by letter agreement dated August 27,
1976, in which they agreed that (1) certain employ-
him that unless such fee and/or dues are tendered within seven
(7) days of his receipt of such notice that he will be reported to
the Company for termination from employment; and
3.04 Any dispute concerning whether an employee is a member in
good standing shall be subject to the Grievance Procedure. including
Arbitration.
2 In his interim award, the arbitrator found that Respondent, in asking
the Charging Party for payment of May and June 1975 dues, had not
complied with the notice provisions set forth in sec. 3.03(a) of the union-
security clause and that the Charging Party subsequently did make tender of
his dues on July 21, 1975, upon learning that a notice had been mailed to
him which he had not received. On July 25, 1975, Respondent rejected this
tender and advised the Charging Party that his membership had been
canceled and his termination had been requested. A subsequent tender of 4
months' dues on August 12 was also rejected and the Charging Party was
again advised that his membership had been canceled.
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AEROSPACE WORKERS, DISTRICT NO. 15
ees, including the Charging Party, owed back dues
for the period of May 1975 to May 1976, while the
union-security provision was in effect, and that (2)
said employees would be discharged if they failed to
pay said dues within 60 days after notice of the exact
amount of dues owed. Respondent notified the
Charging Party by certified letter, dated November
17, 1976, of this settlement agreement and his
obligations thereunder and advised that, if there was
noncompliance, the Employer would be advised and
the Charging Party would be terminated. On Novem-
ber 22, 1976, the Charging Party, who has not
complied with the terms of the settlement agreement
and who remains employed by the Employer, filed
the instant charge.
The complaint issued herein alleges, in substance,
that since August 27, 1976, Respondent has violated
Section 8(b)(2) of the Act by causing or attempting to
cause the Employer to discriminate against the
Charging Party on grounds other than his failure to
tender periodic dues and initiation fees uniformly
required as a condition of employment under the
union-security agreement, and that since November
17, 1976, Respondent has violated Section 8(b)(lX)(A)
of the Act by threatening the Charging Party with
discharge from employment for failure to tender
back dues (1) despite the absence of a valid union-
security agreement and (2) notwithstanding that
membership in Respondent had been denied or
terminated on grounds other than his failure to
tender the periodic dues uniformly required as a
condition of employment during the period between
May 1975 and May 1976.
Respondent's Motion for Summary Judgment
requests dismissal of the complaint on the grounds
that the arbitrator's interim award and letter agree-
ment of August 27, 1976, between the Employer and
Respondent resolved and settled the dispute involv-
ing the Charging Party and that Respondent's
request that the Employer discharge the Charging
Party for failure to pay dues was consistent with
Board precedent.
In his Cross-Motion for Summary Judgment
counsel for the General Counsel contends that
Respondent violated the Act by conditioning the
Charging Party's continued employment on the
payment of union dues after its authority to do so
had been revoked and after it rejected the Charging
Party's tender of dues. We find no merit in
Respondent's contention that the award and subse-
:' The arbitration award did not deal with the specific allegations of the
complaint herein. and, as we have relied on the uncontroverted facts
determined by the arbitrator, we find that neither the arbitrator's award nor
the settlement agreement resolved the issues raised by the complaint.
Further, we find that there are no litigable issues warranting a hearing and
we therefore deny the Employer's request.
quent letter agreement resolved the issues herein 3
and we agree with the General Counsel's position.
It has long been established "that the proviso to
Section 8(aX3) sets up a provable defense to conduct
outlawed by 8(b)(2) of the Act, only in the limited
situation where a union can show the existence of a
permissible union-security contract in effect at the
moment the attempted or actual discharge action is
taken." Marlin Rockwell Corporation, 114 NLRB 553,
556, fn. 6 (1955). See also Haffenreffer & Co., Inc.,
104 NLRB 206, fn. 2 (1953). Here Respondent had
been deauthorized on June 1, 1976. The letter
agreement of August 27, 1976, between the Employer
and Respondent providing for the termination of
employees, including the Charging Party, if they
failed to pay the dues owing between May 1975 and
May 1976, constitutes an attempt to cause the
Employer to discharge the Charging Party for his
failure to pay back dues at a time when no union-
security provision was in effect and this violates
Section 8(b)(2) of the Act. In addition, and afortiori,
Respondent's letter of November 17, 1976, also at a
time when no valid union-security provision was in
effect, threatening the Charging Party with discharge
for failure to comply with the settlement between the
Employer and Respondent, constitutes an indepen-
dent violation of Section 8(b)(1)(A) of the Act.4
Accordingly, the Board hereby denies Respon-
dent's Motion for Summary Judgment and grants the
General Counsel's Cross-Motion for Summary Judg-
ment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer is a Michigan corporation with its
principal office and place of business at Burroughs
Plaza, Detroit, Michigan, and various other plants in
the State of New Jersey, including the plant involved
herein at 300 South Randolphville Road, Piscataway,
New Jersey, herein called the Piscataway plant.
Burroughs is engaged at said plant in the manufac-
ture, sale, and service of business machines, data
processing equipment, and related electronic prod-
ucts. In the course and conduct of its business
operations during the preceding 12 months, a
representative period, Burroughs caused to be manu-
factured, sold, and distributed at said Piscataway
plant products valued in excess of $50,000, of which
I The cases cited by Respondent are either distinguishable on the facts
and the law from the situation herein, or support the General Counsel's
position. In view of our determination herein, we find it unnecessary to
consider the General Counsel's alternative theory of liability.
603
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
products valued in excess of $50,000 were shipped
from said Piscataway plant in interstate commerce
directly to States of the United States other than the
State of New Jersey.
Burroughs is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists and Aero-
space Workers, District No. 15, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Violations of Section 8(b)(2)
Commencing on or about August 27, 1976, and at
all times thereafter, Respondent encouraged mem-
bership in it by attempting to cause, and continuing
to attempt to cause, the Employer to discharge the
Charging Party for failure to tender back dues for the
period of time from May 1975 through May 1976,
notwithstanding that at the time no valid union-
security agreement existed between the Employer
and Respondent which required membership in
Respondent as a condition of employment, in
violation of Section 8(a)(3), thereby violating Section
8(b)(2) of the Act.
B. Violations of Section 8(b)(l)(A)
Commencing on or about November 17, 1976,
Respondent has threatened the Charging Party with
discharge from employment for failure to tender
back dues for the period of time from May 1975
through May 1976, notwithstanding that at the time
no valid union-security agreement existed between
the Employer and Respondent which required
membership in Respondent as a condition of
employment, thereby restraining or coercing the
Charging Party in the exercise of his Section 7 rights
in violation of Section 8(b)(1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the Employ-
er's operations described in section I, above, have a
close, intimate, and substantial relationship 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 com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act. We shall order that Respondent cease and desist
from encouraging membership in it by causing or
attempting to cause, and threatening to cause, the
Employer to discharge the Charging Party for failure
to tender back dues for the period of time from May
1975 through May 1976, notwithstanding that at the
time no valid union-security agreement existed
between the Employer and Respondent which
required membership in Respondent as a condition
of employment, or by discriminating against employ-
ees in any other manner in respect to the hire and
tenure of employment, or any term or condition of
employment, except to the extent that such right may
be affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment, as authorized by Section 8(a)(3) of the Act.
Further, in order to fully rectify the unfair labor
practices herein found, Respondent shall be ordered
to perform the following affirmative acts:
(1) Send a letter to the Employer advising that it no
longer seeks to apply or to enforce the August 27,
1976, settlement agreement with respect to the
Charging Party and other employees similarly
situated; (2) send a letter to the Charging Party
withdrawing its November 17, 1976, threat and
informing him that it has advised the Employer that
it is not seeking enforcement of the August 27, 1976,
settlement agreement with respect to the Charging
Party and other employees similarly situated; and (3)
post notices where notices to its members are
customarily posted, including (but not limited to) the
bulletin boards at the Employer's plant where notices
to its members are customarily posted, in the form
attached to this Decision marked "Appendix."
Upon the foregoing findings of fact and upon the
entire record in this case, we make the following:
CONCLUSIONS OF LAW
1. Burroughs Corporation is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Association of Machinists and
Aerospace Workers, District No. 15, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. By its August 27, 1976, agreement with the
Employer for the Charging Party's discharge unless
he paid back dues at a time when no valid union-
security agreement was in effect, Respondent at-
tempted to cause the Employer to discriminate
604
AEROSPACE WORKERS, DISTRICT NO. 15
against the Charging Party in violation of Section
8(a)(3), thereby violating Section 8(b)(2) of the Act.
4. By its letter to the Charging Party dated
November 17, 1976, threatening to cause the Em-
ployer to discharge the Charging Party for failure to
pay back dues at a time when no valid union-security
agreement was in effect, Respondent has restrained
and coerced the Charging Party in the exercise of
rights under Section 7 of the Act and thereby
violated Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
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 Association of Machinists and Aero-
space Workers, District No. 15, AFL-CIO, their
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Encouraging membership in it by causing or
attempting to cause Burroughs Corporation to
discharge Carl Nocera, or any other employee, for
failure to pay back dues at a time when no valid
union-security agreement was in effect.
(b) In any other manner discriminating against
employees in respect to the hire and tenure of
employment, or any term or condition of employ-
ment, except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
(c) Restraining or coercing Carl Nocera, or any
other employee, by threatening to cause Burroughs
Corporation to discharge him for failure to pay back
dues at a time when no valid union-security
agreement was in effect.
(d) In any other manner restraining or coercing
employees in the exercise of their rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Send a letter to the Burroughs Corporation
advising that it no longer seeks to apply or to enforce
the August 27, 1976, settlement agreement with
respect to Carl Nocera and other employees similarly
situated.
(b) Send a letter to Carl Nocera withdrawing its
November 17, 1976, threat and informing him that it
has advised the Burroughs Corporation that it is not
seeking enforcement of the August 27, 1976, settle-
ment agreement with respect to him and other
employees similarly situated.
(c) Post in their offices and meeting halls and at
company bulletin boards copies of the attached
notice marked "Appendix." s Copies of said notice,
on forms provided by the Regional Director for
Region 22, after being duly signed by the authorized
representatives of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to members are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
I 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 b) 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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in our
Union by causing or attempting to cause Bur-
roughs Corporation to discharge Carl Nocera, or
any other employee, for failure to pay back dues
at a time when there was no valid union-security
agreement in effect.
WE WILL NOT in any other manner discriminate
against employees in respect to the hire and
tenure of employment, or any term or condition
of employment, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment, as authorized by Section
8(a)(3) of the Act.
WE WILL NOT restrain or coerce Carl Nocera, or
any other employee, by threatening to cause
Burroughs Corporation to discharge him for
failure to pay back dues at a time when no valid
union-security agreement is in effect.
WE WILL NOT in any other manner restrain or
coerce employees of Burroughs Corporation in
the exercise of the rights guaranteed them in
Section 7 of the Act.
605
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL advise the Burroughs Corporation by
letter that we no longer seek to apply or to
enforce the August 27, 1976, settlement agree-
ment with respect to Carl Nocera and other
employees similarly situated.
WE WILL send a letter to Carl Nocera with-
drawing our threat of November 17, 1976, and
informing him that we have advised the Bur-
roughs Corporation as set forth above.
INTERNATIONAL
ASSOCIATION OF
MACHINISTS AND
AEROSPACE WORKERS,
DISTRICT No. 15, AFL-
CIO
606