Alcoa Construction Systems, Inc.

National Labor Relations Board - Board Decisions

Jul 15, 1974

212 N.L.R.B. 452 (N.L.R.B. 1974)

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alcoa Construction Systems , Inc. and Randy L. Ward,
United Brotherhood of Carpenters and Joiners of
America , Millmen 's Union Local No. 338, AFL-
CIO and Randy L. Ward. Case 19-CA-6306 and
19-CB-2013
July 15, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On March 21, 1974, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, Respondent Employer
filed exceptions and a supporting brief and the Gener-
al Counsel filed a brief in answer to the Respondent
Employer's exceptions.
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 a three-member panel.
The Board has considered the record and the at-
tached 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.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Employer , Alcoa Construc-
tion Systems , Inc., Kent, Washington , its officers,
agents, successors , and assigns , and Respondent
Union , United Brotherhood of Carpenters and Join-
ers of America , Millmen 's Union Local No. 338,
AFL-CIO, Seattle, Washington , its officers , agents,
and representatives, shall take the action set forth in
the said recommended Order.
' In adopting the Administrative Law Judge 's Decision . Member Fanning
finds it unnecessary to pass on or consider the alleged breach of the Union's
duty of fair representation as an alternative basis upon which the violations
miiht be found
The Respondent Employer's assertion that it has ceased operations at the
plant in question and that this requires a modification of the Board's Order
is a matter which we will leave to be resolved at the compliance stages of this
proceeding
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge. This case
was tried at Seattle, Washington, on January 15, 1974. On
March 20, 1973, Randy L. Ward, an individual, filed a
charge in Case 19-CA-6306 against Alcoa Construction
Systems, Inc., herein called the Company,' and a charge in
Case 19-CB-2013 against United Brotherhood of Carpen-
ters and Joiners of America, Mtllmen's Union Local No
338, AFL-CIO, herein called the Union. An order consoli-
dating cases and a complaint based on the charges issued
on November 30, 1973. The complaint alleges that the Com-
pany violated Section 8(a)(1) and (3) and the Union violated
Section 8(b)(1)(A) and (2) of the National Labor Relations
Act, as amended.
Issues
The primary issues are:
1. Whether the Union violated Section 8(b)(1)(A) and (2)
of the Act by causing the Company to discharge Randy L.
Ward pursuant to a union-security clause under circum-
stances: (a) where the union-security clause was enforced in
an unlawful manner, or (b) where the Union's actions con-
stituted a failure to represent Ward fairly.
2. Whether the Company violated Section 8(a)(3) and (1)
of the Act by complying with the Union's demand that
Ward be discharged.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, the Company, and the Union.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Company, a Delaware corporation, is engaged in the
manufacture of bathroom , kitchen , and service modules at
various locations in the United States. Until about Novem-
ber 1973, one of those locations was at 7819 South 192d
Street, Kent, Washington , herein called the plant. During
1972, which was a representative year, the Company sold in
excess of $50,000 worth of goods to customers across state
lines and purchased and received in excess of $50,000 worth
of goods and services from out-of -state suppliers . The Com-
pany is an employer engaged in commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
1 The Company is referred to by the parties at times as Alcoa Housing 601
or Housing 601
212 NLRB No. 62
ALCOA CONSTRUCTION SYSTEMS INC 453
11 THE UNION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111 THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. The setting
Ward was employed by the Company in February 1971.
On May 19, 1971, the Company and the Union entered into
a collective-bargaining agreement effective from May 1,
1971, to April 30, 1974. Under the agreement , the Company
recognized the Union as the exclusive representative of its
production and maintenance employees. The contract con-
tains a union-security clause 2 and a checkoff clause.3 It has
been the longstanding practice, pursuant to an under-
standing between the Company and the Union, for the
Company to deduct and remit dues from the first paycheck
in each month for the dues which have accrued the previous
month. However, when an employee is delinquent from
previous months, the practice has been for the Union to
apply the checked-off dues to the earliest months' delin-
quency
All of the employees in the bargaining unit have signed
dues-checkoff authorizations. Ward Joined the Union and,
on May 24, 1971, signed his checkoff authorization. That
authorization has never been revoked.'
2 Art V sec 5 01, provides "An employee who is a member of the Union
at the time this Agreement becomes effective shall continue membership in
the Union for the duration of this Agreement to the extent of paying the
membership dues uniformly required as a condition of acquiring or retaining
membership in good standing in the Union "
Sec 5 02 provides "An employee, who is not a member of the Union at
the time this Agreement becomes effective, or he is employed after the
effective date of this Agreement, shall become a member of the Union within
ten (10) days after the thirtieth (30th ) day following the effective date of this
Agreement or within ten (10) days after the thirtieth (30th) day following
employment , whichever is later , and shall remain a member of the Union to
the extent of paying an initiation fee and the membership dues uniformly
required as a condition of acquiring and retaining membership in good
standing in the Union, whenever employed under, and for the duration of
this Agreement "
Sec 5 03 provides "The Union shall accept into membership each em-
ployee covered by this Agreement who tenders to the Union the periodic dues
and initiation fees uniformly required as a condition of requiring and/or
retaining membership
Art XXI. sec 21 01, provides that where individually authorized in writ-
ing by an employee, the employer will "deduct from the pay of the employee
such uniform initiation fee and monthly dues as are required from all appli-
cants and members of the Union " Under that provision, the employer is to
remit promptly each month the amounts deducted together with a list of
names of all employees, showing the amount'deducted from each It further
provides "Any employee from whom deductions are due for the current
month, who does not have any pay due on the payroll from which deductions
are made, will have deductions made from the next payroll from which
deductions are made in which the employee receives any pay together with
an' amounts that may be due for the month in which deductions are made"
Though Ward's employment was terminated in June of 1971, he was
subsequently rehired All parties have treated Ward's checkoff as a continu-
ing one, and there is no allegation that the hiatus in employment invalidated
the checkoff authorization
2. The first suspension of Ward from union membership
At the end of June 1971, Ward's employment with the
Company was terminated. In July 1971, his June dues were
paid so that he was current with his union dues through the
end of June. In January 1972, he was rehired. From July
through December 1971, Ward paid no dues to the Union
nor did he take out a withdrawal card. During that period
he was sent two notices of arrearage. The first was on Sep-
tember 30, 1971, before he became 3 months in arrears.5 A
second notice was sent on December 15, 1971, pursuant to
section 45L of the constitution of the United Brotherhood
of Carpenters and Joiners of America, the Union's parent
organization, herein called the International. That section
reads.
A member who owes a Local Union five months' dues
shall be notified by mail at the last known address by
the Financial Secretary not later than the 15th day of
the sixth month of said arrearage Unless dues are paid
by the end of this sixth month, his name shall be strick-
en from the list of membership without a vote of the
Local Union.
Ward was suspended from membership in the Union on
December 31, 1971, because of nonpayment of dues.
On January 21, 1972, John L. Carr, the Union 's financial
secretary - treasurer ,6 wrote to R. E Livingston , the general
secretary of the international , as follows:
On our last monthly report , showing December activi-
ty, I had marked Randy Ward Suspended for non pay-
ment of dues
Randy was working for Housing 601, one of our plants
with a payroll dues deduction, and was terminated in
June. He was notified about the arrears, but neglected
to pay his dues In December he was re-hired by the
same firm and they deducted his dues in December, for
one month. However, due to their bookkeeping system,
we do not receive the December dues deduction until
the middle of January.
Had this reached us in December, Randy would still be
in arrears but not suspended For this reason we are
requesting that you not remove him from the rolls. We
will notify him that the back dues must be paid imme-
diately.
Please let us know if this meets with your approval.
On the same day, January 21, 1972, Carr wrote to Ward I
as follows:
Your [sic] were admitted into this Local Union under
Sec 45K of the International's constitution provides "A member who
owes three months' dues shall not be entitled to the Password , or a seat, or
office in any meetings of a Local Union or District Counsel and is not in good
standing" Sec 45B provides "Monthly dues shall be charged on the books
on the first of each month , but a member does not fall in arrears until the
end of the month in which the member owes three months' dues
Carr is the chief executive officer of the Union The complaint alleges,
the answers admit. and I find that he is an agent of the Union
7 Ward acknowledged receiving this letter
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Organizational agreement along with the other
member working at 601 at the time the Union Agree-
ment was signed. According to our records, you were
terminated or quit in June.
Our records also show you were notified by mail when
you were three months behind in your dues and again
when you were 6 months behind. According to the
international, anyone six months behind is dropped
from membership and must return to the Brotherhood
by the payment of a full initiation fee. We received one
months dues for you along with the rest of the payroll
deductions and have to apply this to your July dues. In
order to be a member in GOOD STANDING, you will
have to pay your other five months back dues immedi-
ately. You owe $36.75 which is much less than a full
initiation fee of $150.00
While you were dropped from membership on the last
day of December, we have written the international to
re-instate you and this is the only provision they make.
You must square your arrears immediately.
Please let us hear from you soon. If you have any
questions, please call this office. We are open from 4.00
P.M. to 7:00 on meeting nights. Monday January 24 is
our next meeting. Check in with John Carr then.
On January 31, 1972, the International wrote to Carr
stating that if Ward paid all his back dues, his membership
records would be adjusted.
In February 1972, Ward paid his back dues and was
reinstated to membership without the need to pay a new
initiation fee.
3. The second suspension from membership
and the discharge
Ward, along with a number of other employees, was laid
off in July 1972. At the time, he was fully paid up in dues
through June 1972. Dues are $7.35 per month. He and the
other employees were recalled on December 18, 1972. Dur-
ing the interval of layoff, Ward paid no dues and did not
take out a withdrawal card.8
On September 30, 1972, the Union sent an arrears notice
to Ward. On December 14, 1972, a second arrears notice
was sent. The second notice contained a quote from section
45L of the International constitution, stating that at the end
of 6 months, membership would be lost. Ward did not re-
ceive either of these notices. The second notice was returned
to the Union with the notation from the post office that
Ward had moved and left no address? The second notice
was sent to the same address as the Union's January 21,
1972, letter which had been received by Ward.
In his brief, counsel for the General Counsel states
General Counsel concedes Local 338's right to demand payment of dues
for a layoff period where , as here, employees on layoff accrue vacation
pay and retain recall rights under the contractual seniority clause Indus-
trial Rddio Lodge No. 1561 , International Association of Machinists and
Aerospace Workers, AFL-CIO (The Bendix Corporation), 205 NLRB 770
9 Sec 441 of the International constitution requires members to keep the
Union informed of current addresses Ward credibly testified that he was
never given a copy of the constitution
On December 31, 1972, Ward was suspended from mem-
bership
The week before the December 1972 callback, Carr spoke
to company officials about the payment of dues. He told
them that the employees were expected to have a month's
dues paid prior to the end of December and that each
month after that could be paid I or 2 months at a time until
they were up to date.to
In January 1973, Ward, along with a number of other
employees, attempted to attend a union meeting. They were
barred at the door because of dues arrearages, but after
speaking with Carr, they were allowed to participate in the
meeting.
Some time in January, Carr came to the plant and met
with a number of employees, including Ward. Carr told the
employees that those of them who did not pay their dues
during the layoff could make up the payments and they
would not be terminated. Immediately after the meeting,
Ward offered to pay Carr the back dues and Carr replied
that Ward would have to come into the office to do it.
On January 7, 1973, the Company followed the estab-
lished practice of deducting dues pursuant to the checkoff.[[
The Union's records show that on January 18, 1973, it re-
ceived checked-off dues on behalf of Ward which it applied
to December 1972. The records also show that on February
12, 1973, it received checked-off dues for Ward which it
credited to January 1973 The Union also sent receipts to
Ward showing that dues payments were credited on his
behalf for December 1972 and January 1973.
On February 2, 1973, Ward called Carr on the telephone
and told him that he wanted to make arrangements to pay
his back dues. Ward was told that it was too late to come
in that day.t2
On February 12, 1973, Carr wrote to the International as
follows:
I am requesting your assistance in correcting the re-
cords of RANDY WARD, who was entered as Sus-
pended on the December activity.
The reason for this is, Randy Ward was terminated in
July, and neglected to pay his dues while off work. He
has been employed at Alcoa Housing 601 which has the
payroll deduction for Union dues.
Randy was rehired on December 11, 1972 and dues
were withheld from his pay check in December. It is the
policy of the Company to withhold dues one month
and forward these to the Union Office the following
month. Due to the fact that the dues were actually paid
in December, this would have been within the six
These findings are based on the credited testimony of Carr. Unlike the
other recalled employees, Ward did not pay any dues in December
11 Employee Rodney Carroll credibly testified that in December 1972 he
had a conversation on the telephone with Carr about the recalled employees
and that Carr said that they were going to start deduction of dues from the
first paycheck the employees received in January
12 Ward also testified that Carr told him that he would have to pay his
initiation fee I do not believe that Ward's recollection with regard to that
statement was accurate The subsequent letters written by Carr , which are
described in detail below , indicate that Can did not expect an initiation fee
until a subsequent date
ALCOA CONSTRUCTION SYSTEMS INC.
month period and Randy Ward should not have been
dropped. He should be on the record as having paid
one month dues, $7.35 which would be for July 1972.
In February we received another month of dues which
will pay August. Randy Ward has been notified he
must bring the other five months dues immediately to
bring this account current.
Please do not remove Randy Ward from the rolls, but
he is still in arrears and owes dues from August 1972.
Thank you for your consideration.
On February 13, 1973, Carr wrote to Ward as follows:
You were notified in September 1972 that you would
be in arrears at the end of the month and in January
you were sent a final notice of arrears. We, however did
not hear from you and you made no payments on your
dues for this six month period, December 31, 1972.
You were re-hired at Alcoa Housing on December I 1
and they, according to the contract, deducted dues for
one month from you. This was forwarded to our office,
as per the arrangements, in January. According to our
Union Constitution, we had suspended you at the end
of the six month period.
We have written to the International Office and re-
quested a correction on the record and this, according
to past practice will be granted with the provision that
you bring your account up to date and square your
arrearages. You will have to pick up your dues for the
period of time you were not under the payroll deduc-
tion. You owe a balance of five months dues, $36,75
plus $2.00 for arrears assessments.
Please make arrangements to pay this within the next
month so you can be re-instated by the International
Brotherhood of Carpenters and Joiners of America, or
the Union Security Clause of our agreement will be
enforced.
By letter dated March 2, 1973, the International replied
to Carr as follows:
We are in receipt of your communication dated Feb-
ruary 12, regarding the Suspension of RANDY
WARD on December 31, 1972 and in reply I wish to
advise that this same thing happened in December 31,
17
The complaint alleges , the Union's answer admits, and I find that Gierke
was an agent of the Union
14 The forms indicated that Ward would have to pay an initiation fee of
$150
15 It is noted that by this time the Union had received checked-off dues
for Ward in both January and February 1973 and that the Union's records,
as well as the receipts issued to Ward. indicated that the dues had been
applied to December 1972 and January 1973 If the Union's records were
accurate , back dues were still outstanding for the 5 months of July, August.
September, October. and November 1972 If the dues payments were attri-
buted to the earliest months of delinquency, as Carr testified they should
455
1971 and we gave you a dispensation at that time to
accept all his back dues, provided he paid up through
and including the current month, which he did on Feb-
ruary 19, 1972.
Now, he has allowed himself to go three months in
arrears September 30, 1972 and six months in arrears,
December 31, 1972, but in your letter , you state that
dues of July, 1972 were deducted by the company in
December, 1972 but not turned over to the Local
Union until January, 1973, since he was on a checkoff.
However, it deems strange that this man always leaves
the place where he works without paying some dues in
advance, so as to save this trouble each year.
Therefore, we feel that under the circumstances, we
cannot grant you permission to accept the dues as the
Suspension will stand as reported.
On March 6, 1973, Carr sent letters, with copies of the
International's letter, to both Ward and shop steward Leroy
Gierke.13 The letter to Ward stated that the Union was
obligated to collect the full initiation fee with the payments
commencing at once. The letter to Gierke stated that Ward
had to rejoin the Union and enclosed an application for
dues and initiation deduction."' It also enclosed a handwrit-
ten memo from Carr telling Gierke to have the checkoff
authorizations signed and ending "Any B. S. - Send it
Back , We'll Terminate."
On March 7, 1973, pursuant to his instructions from Carr,
shop steward Gierke approached Ward and told him that he
had to pay the full initiation fee or he would be terminated.
Ward refused to sign the initiation fee deduction form and
told Gierke that he didn't see how he was 6 months in
arrears.15 Ward asked why he had to rejoin the Union and
Gierke replied that there was some doubt as to how long he
had been in arrears and that this was what he was supposed
to do. In this conversation, Ward convinced Gierke that he
was not 6 months in arrears .16 Gierke said that he would try
to find out what was going on.
Gferke then spoke about the matter to Edgar Cheeley, the
Company's accountant.17 Gierke told Cheeley that he had
done some paper work for Ward and that he had come to
have the Company's books checked. Gierke showed Chee-
ley the paper work and a copy of the constitution. Gierke
said that after 6 months, a man can be suspended. They
went over the Company's books and Gierke said that he
couldn't come up with 6 months, but only 5.18
Gierke also spoke to Donald H Neff, the plant superin-
tendent , and told him that he had talked to Cheeley about
Ward, and they couldn't come up with 6 months delinquen-
cy. Neff replied they would look into it and see what could
be done. 19
have been , they would have been applied to July and August 1972, which
would have still left 5 months delinquency for September, October, Novem-
ber, and December 1972 and January 1973
16 Gierke credibly testified to that effect
17 The complaint alleges , the answers admit, and I find that Cheeley is a
supervisor within the meaning of the Act
1s These findings are based on the testimony of Gierke Cheeley, in his
testimony, acknowledged that he spoke to Gierke about Ward, but he did not
recall seeing the constitution or recall any specific discussion about 5 or 6
months arrearage or the position the Union was taking He averred , though,
that he could not state much of this with definiteness I credit Gierke
19 This finding is based on credited testimony of Gierke Neff testified that
Continued
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime later that day, March 7, 1973, Gierke had a
conversation with Robert L . Greer , the plant superinten-
dent,20 and employee Rodney Carroll Gierke , Greer, and
Carroll looked over some notes that Cheeley had given
Gierke and they agreed that there was no way Ward could
be 6 months in arrears Greer said that there wasn't much
he could do about it and that he would hate to lose Ward
because Ward was a good worker.21
That afternoon Gierke was speaking to Carroll when
Cheeley came out of his office and gave Gierke some notes
taken from company records which showed that Ward was
5 months delinquent Carroll asked Cheeley what the regu-
lar procedure was for taking dues out of a man 's check.
Cheeley answered that, through Carr, they had set up a
policy where dues are taken out each month for the previous
month and that Ward 's December dues were paid in Janu-
ary. Gierke then left and Cheeley continued his conversa-
tion with Carroll . Cheeley said that somebody's records
must have been messed up.22
Later , on March 7, Gierke spoke to Carr on the telephone
and discussed the months that Ward was delinquent . Gierke
told Carr that Ward had refused to rejoin the Union, and
Carr instructed Gierke to write a note stating that Ward had
refused to join the Union and that he (Gierke) had told
Ward that he (Ward) could be terminated.
On March 8, 1973, Gierke wrote to Carr as follows-
Randy Ward has refused to sign the application for
membership form and his authorization for deduction
of initiation fees. I have explained that he will be termi-
nated in the near future.
On March 12, 1973, Carr wrote two letters. One was to
Ward, enclosing a check for $14.70 and stating that the dues
checked off in January and February 1973 were not accept-
ed as Ward was suspended prior to the receipt of those dues.
The letter also stated that a request would be made to termi-
nate Ward under the union-security clause. The second let-
ter was to the Company It requested that Ward be
discharged pursuant to that clause. On March 14, 1973,
Donald H. Neff, the plant manager, wrote to Carr stating
that Ward would be terminated at 7 a m. on March 15, 1973,
in accordance with the contract terms.
On March 14, 1973, Supervisor John Bradley 23 asked
Ward if he had joined the Union yet. Ward replied in the
negative. Bradley then said that he talked to Greer, but
Greer didn't have anything to say about it.
The discharge actually occurred on March 16, 1973. On
that date, Ward was given a dismissal notice by Gierke
Shortly after, Gierke and Ward spoke to Greer, who told
them that the Union had asked for the dismissal. On the
the conversation never took place and that he was not even in the plant at
the time of the alleged conversation Gierke may well have been mistaken in
his recollection of the time sequence , but I credit his testimony that the
conversation did take place
20The complaint alleges , the answers admit, and I find that Greer was a
supervisor within the meaning of the Act
21 These findings are based on credited testimony of Gierke and Carroll.
Greer did not testify
22 These findings are based on the credited testimony of Carroll
same day, Gierke spoke to Greer and repeated that they
couldn't come up with more than 5 months delinquency
Greer suggested that Ward contact the Union and said that
they hated to lose him because he was a good worker.
Carr acknowledged that the Union's request that Ward
be discharged was based solely on the fact that Ward had
been suspended and had refused to pay the initiation fee
B. Analysis and Conclusions
I The alleged dues delinquency
a. The Union's responsibility
With an exception relating to the enforcement of a valid
union-security clause, it is unlawful under Section 8(a)(1)
and (3) of the Act for an employer to discharge an employee
because that employee is not a member of a union. With the
same exception, it is unlawful under Section 8(b)(1)(A) and
(2) of the Act for a union to cause or attempt to cause an
employer to discharge an employee for nonunion member-
ship.
The Union demanded, and the Company effectuated,
Ward's discharge because he had been suspended and
therefore was not a member of the Union. The Union and
the Company have therefore violated the Act unless the
exception relating to the enforcement of a valid union-se-
curtly clause is applicable to the facts of this case That
exception is set forth in the provisos to Section 8(a)(3) 24 of
the Act which read.
.. . Provided, That nothing in this Act . . . shall pre-
clude an employer from making an agreement with a
labor organization . to require as a condition of
employment membership therein on or after the thirti-
eth day following the beginning of such employment or
the effective date of such agreement, whichever is the
later. . . Provided further, That no employer shall
justify any discrimination against an employee for non-
membership in a labor organization (A) if he has rea-
sonable grounds for believing that such membership
was not available to the employee on the same terms
and conditions generally applicable to other members,
or (B) if he has reasonable grounds for believing that
membership was denied or terminated for reasons
other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required
as a condition of acquiring or retaining membership.
The phrase "failure of the employee to tender the periodic
dues and the initiation fees uniformly required" necessarily
23 The complaint alleges , the answers admit , and I find that Bradley was
a supervisor within the meaning of the Act
24 The parallel provision in Sec 8(b)(2) makes it unlawful for a union "to
cause or attempt to cause an employer to discriminate against an employee
in violation of subsection (a)(3) or to discriminate against an employee with
respect to whom membership in such organization has been denied or termi-
nated on some ground other than his failure to tender the periodic dues and
the initiation fees uniformly required as a condition of acquiring or retaining
membership "
ALCOA CONSTRUCTION SYSTEMS INC. 457
implies that the employee is delinquent in dues that have
already accrued . If in fact Ward was not delinquent, then
the proviso could not be raised as a viable defense. In de-
termining the amount of delinquency that would warrant
resort to discharge under the union - security clause , the stan-
dard applied by the Union must be uniform , as the proviso
allows such discharge only for nonpayment of periodic dues
and initiation fees "uniformly required as a condition of
acquiring or retaining membership."
Section 45K of the International 's constitution provides
that a member who owes 3 months dues is not in good
standing, and Section 5.02 of the collective -bargaining con-
tract provides that employees shall pay dues uniformly re-
quired as a condition of acquiring or retaining membership
in good standing in the Union . However , no contention is
made by any party that a 3 months ' delinquency in dues has
been used as the basis for discharge under the union-securi-
ty clause of the contract . On the contrary , Carr acknowl-
edged that the Union 's request that Ward be discharged was
based solely on the allegation that Ward had been suspend-
ed for a 6 months dues delinquency and had refused to pay
the new initiation fee. If the Union had insisted on Ward's
discharge because of a 3 months ' delinquency where the
standard uniformly applied had been a 6 months ' delin-
quency, the uniformity requirement of the proviso would
clearly not have been met. 5
As the parties have interpreted and applied the union-
security clause of the contract , an employee 's discharge can
be effectuated only after a 6 months ' dues delinquency and
a consequent suspension from membership. Thus, under the
uniform standards required by the proviso, Ward's dis-
charge, to be lawful , would have to be based on a 6 months'
dues delinquency. It follows that , if Ward was discharged
when he was only 5 months' delinquent in the payment of
dues, the uniform standard required by the proviso would
not have been met and the discharge would have violated
the Act.
Section 45B of the International 's constitution provides
that monthly dues shall be charged on the books on the first
of each month but a member does not fall in arrears until
the end of the month in which the member owes 3 months'
dues. It thus appears that dues do not become delinquent
until the end of the month for which they are due. When
Ward was recalled by the Company in mid-December 1972,
he was 5 months' delinquent in dues. The December 1972
dues were not yet delinquent. In the ordinary course of
events, the December dues would have become delinquent
on December 31, 1972 , and Ward would have been 6
months in arrears . However , in the instant case , two addi-
tional factors were present . The first was that Ward had in
effect an outstanding dues-checkoff authorization The sec-
ond is that the understanding and practice with regard to
checkoff was that dues would be checked off from the first
paycheck in the month following the one in which the dues
had accrued . Carr had agreed with the Company and in-
formed the employees that December 1972 dues would be
checked off from the first paycheck in January 1973. In
25 It is noted that the Union placed in evidence the records of employees
in other bargaining units showing that they had been suspended after 6
months and had been required to pay new intiauon fees
effect, the Union waived its right to have December dues
paid by the end of December and agreed to accept them
from the January checkoff . In fact , the Union did just that
and accepted the checkoff for Ward in both January and
February. Under these circumstances , it cannot be said that
Ward became delinquent for 6 months ' dues on December
31, 1972 . The Union had extended the time for payment so
that the delinquency did not occur . As the dues were not
delinquent , it follows that , under a uniform standard, a new
initiation fee could not be required as a condition of em-
ployment . The Union may or may not have had the right
to suspend Ward under these circumstances , but it could
not lawfully require his discharge for nonpayment of dues
or initiation fee when they were not delinquent . Apparently
even the Union did not believe there was a 6 months ' delin-
quency, as Carr wrote to the International on February 12,
1973, saying that Ward had been notified that he must pay
5 months' dues immediately to bring his account current
and requesting a correction of records with regard to the
suspension. The Union is a respondent in this case and
cannot justify its actions by its assertion that it was merely
following the orders of the International.
In sum , I find that the Union violated Sections 8(b)(1)(A)
and (2) of the Act by causing the Company to discharge
Ward because of Ward 's failure to pay dues and initiation
fee that were not delinquent.
b. The Company's responsibility
Under the terms of the proviso , the Company cannot
justify the discharge if it had reasonable grounds "for be-
lieving that membership was denied or terminated for rea-
sons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as
a condition of acquiring or retaining membership." The
Company knew that Ward was not 6 months ' delinquent in
dues at the time of the discharge . On March 7 , 1973, shop
steward Gierke spoke about Ward 's situation with Supervi-
sor Cheeley . Gierke told him that after 6 months a man can
be suspended, and they went over the Company's books
together . Gierke told him that he could come up only with
5 and not 6 months' delinquency . Gierke spoke about the
problem to Plant Superintendent Neff, who said that he
would look into it. Supervisor Greer spoke to Gierke and
employee Carroll about the Ward situation and they agreed
that there was no way Ward could be 6 months in arrears.
Greer added that there wasn ' t much he could do about it
and that he would hate to lose Ward because Ward was a
good worker . Cheeley told Carroll that somebody 's records
must have been messed up. The Company knew that the
Union 's request to discharge Ward was based on Ward's
suspension because Supervisor Bradley asked Ward on
March 14, 1973, if he had joined the Union yet. Bradley told
Ward that he had spoken to Greer and Greer didn't have
anything to say about it.
The Company knew that Ward was suspended from the
Union because of an alleged 6 months' dues delinquency
and knew from its own records that Ward in fact was only
5 months' delinquent . It also knew that the Union 's request
for Ward's discharge was based on the suspension . In spite
of this, the Company promptly and without question com-
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plied with the Union 's demand and discharged Ward. A
company does not have a duty to investigate the circum-
stances behind a union 's request to discharge an employee
under a union-security clause , unless that company has rea-
sonable grounds for believing that the request was improp-
er. Conductron Corp., 183 NLRB 419 , and cases cited
therein . In the instant case the Company 's own records
combined with the information given its supervisors by shop
steward Gierke put it on notice that the request was improp-
er. In discharging Ward under these circumstances, the
Company violated Section 8 (a)(1) and (3) of the Act.
2. The duty of fair representation
The above conclusions are based on a finding that Ward
was discharged for nonpayment of dues and initiation fee
that were not delinquent. The same conclusions are war-
ranted based on the broader proposition that the Union's
actions with regard to Ward were in defiance of the Union's
duty to represent him fairly.
The duty of fair representation was first enunciated by
the United States Supreme Court in 1944 in the case of
Steele v. Louisville & Nashville Railroad Company, 323 U S.
192, which arose under the Railway Labor Act. The Court
held that the same statute that gave the union a right to act
as exclusive bargaining agent inherently required the union
to represent employees fairly, impartially, and in good
faith. 6 The Board first applied this "duty of fair representa-
tion" concept in an unfair labor practice proceeding in Mir-
anda Fuel Company, Inc., 140 NLRB 181, enforcement
denied 326 F.2d 172 (C A. 2, 1963).27 The Board held:
... Section 7 thus gives employees the right to be free
from unfair or irrelevant or invidious treatment by
their exclusive bargaining agent in matters affecting
their employment. This right of employees is a statuto-
ry limitation on statutory bargaining representatives,
and we conclude that Section 8(b)(1)(A) of the Act
accordingly prohibits labor organizations, when acting
in a statutory representative capacity, from taking ac-
tion against any employee upon considerations of clas-
sifications which are irrelevant, invidious, or unfair
.... To the extent'... that an employer participates
in such union's arbitrary action against an employee,
the employer himself violates Section 8(a)(I) of the Act.
This would obtain, for example, where, for arbitrary or
irrelevant reasons, a statutory bargaining representa-
tive attempts to cause an employee's discharge and the
employer then becomes party to such violation of Sec-
tion 7 rights by acceding to the union's efforts.
We further conclude that a statutory bargaining rep-
resentative and an employer also respectively, violate
26 Ford Motor Co v Huffman, 345 , U S 330 (1953) and Humphrey v Moore.
375 U S 335 (1964)
27 Though the Court of Appeals for the Second Circuit refused to enforce
the Miranda decision, a majority of that court did not rule on the question
whether a breach of the duty of fair representation was an unfair labor
practice
Section 8(b)(2) and 8(a)(3) when, for arbitrary or irrele-
vant reasons or upon the basis of an unfair classifica-
tion, the union attempts to cause or does cause an
employer to derrogate the employment status of an
employee.
Since the Miranda case , the Board has consistently fol-
lowed the principle that a union owes a duty of fair repre-
sentation to the employees it represents . 28 The Board has
often applied this principle to situations involving the en-
forcement of union -security clauses . In Teamsters Local
Union No. 122 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (August
A. Busch & Co. of Mass, Inc), 203 NLRB 1041 (1973), the
Board found that a union violated the Act by enforcing a
union -security clause where the employee did not have suf-
ficient notice of his obligations. The violation was premised
on the union 's breach of its fiduciary duty to treat the em-
ployee fairly . In that case, the Board quoted the Court of
Appeals for the Third Circuit in N.L . R B. v. Hotel, Motel
and Club Employees ' Union, Local 568, AFL-CIO (Philadel-
phia Sheraton Corp.), 320 F .2d 254 , 258 (C . A. 3, 1963), as
follows:
The comprehensive authority vested in the union, as
the exclusive agent of the employees, leads inevitably
to employee dependence on the labor organization.
There necessarily arises out of this dependence a fidu-
ciary duty that the union deal fairly with employees
, , At the ininimum, this duty requires that the
union inform the employee of his obligations in order
that the employee may take whatever action is neces-
sary to protect his job tenure.
In deciding what constitutes a breach of the Union's fiduci-
ary duty to deal fairly with employees, all the background
circumstances must be considered. '
I am not persuaded that Ward was given insufficient
notice of -what the Union intended to do. Ward did not
receive the two delinquency notices in 1972, but that ap-
pears to have resulted from his failure to leave a forwarding
address. Ward's poor experience with a suspension in 1971
should have alerted him that he faced the same problem in
1972 After the suspension but before the discharge, Ward
was notified, by Gierke that he would be discharged pur-
suant, to the union-security clause if he did not rejoin the
Union by payment of a new initiation fee. However, timely
and proper notice that a union intends to act in an arbitrary
manner in no way makes the subsequent action less arbi-
trary. I am also not persuaded that the Union's failure to
demand Ward's discharge after the first suspension in any
28 The U S' Supreme Court has not yet ruled specifically on the question
of whether a breach of the duty of fair representation by a union violates the
unfair labor practice sections of the Act However, in Vaca v Sipes, 386 U S
171 (1967), the Supreme Court, in dec.dmg a preemption question, reviewed
the history of the Miranda decision in detail and stated "Moreover, when
the Board declared in Miranda Fuel that a union's breach of its duty of fair
representation would henceforth be treated as an unfair labor practice, the
Board adopted and applied the doctrine as it had been developed by the
federal courts "
ALCOA CONSTRUCTION SYSTEMS INC
way waived whatever right it may have had to seek his
discharge after the second one. Lenient enforcement of a
union or contract right after a first offense does not bar
strict enforcement when the offense is repeated.29 However,
it is no defense to a present violation of the Act to claim that
the Act was not violated in the past.
As set forth in full above, the longstanding practice pur-
suant to agreement of the parties was that dues for I month
were to be paid through checkoff from the first paycheck of
the following month. Pursuant to this practice and agree-
ment, Ward should not have been considered 6 months in
arrears when the January 1973 checkoff was sent to the
Union for December dues. Ward therefore should not have
been suspended because of a 6 months' delinquency; a new
initiation fee should not have been charged, and the union-
security clause should not have been invoked. The Union's
action in accepting the dues checked off for Ward in Janu-
ary and February was consistent with the agreement it had
with the Company. Carr's February 12, 1973, letter to the
International, asking the International to refrain from re-
moving Ward from the rolls, and his February 13, 1973,
letter to ward, in which he said that Ward owed a balance
of 5 months' dues, were also consistent. Under these circum-
stances, I believe the Union acted arbitrarily and in defi-
ance to its duty to represent Ward fairly when it reneged on
its prior understanding with both the Company and Ward
by returning the dues that had been checked off for Ward
in January and February, by treating him as a nonmember,
and by demanding his discharge for nonpayment of the new
initiation fee. The evidence detailed above also establishes
that the Company discharged Ward pursuant to the Union's
demand even though it was aware of the Union's failure to
perform the fiduciary duty it owed Ward.30
Under these circumstances, I find that the Union's de-
mand that Ward be discharged violated Section 8(b)(1)(A)
and (2), and the Company's discharge of Ward violated
Section 8(a)(1) and (3) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section 111,
above, occurring in connection with the'operations.of the
Company described in section 1, above,-have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce 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 the Union violated Section 8(b)(1)(A) and
(2) of the Act, and that the Company violated Section
29 General Longshore Workers, International Longshoremen 's A rrociat ion.
Local 1418, AFL-CIO (Lykes Bros Steamship Co. Inc). 195 NLRB 8
JOCf Associated Transport , Inc, 169 NLRB 1143. enfd 401 F 2d 509 (C A
2, 1968)
459
8(a)(3) and (1) of the Act, I shall recommend that they be
ordered to cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the
Act. As I have found that the Union caused the Company
to discharge Ward for nonpayment of dues and initiation
fees that were not delinquent, I shall recommend that the
Union be ordered to notify the Company, in writing, with
a copy to Ward, that it has no objection to his immediate
and full reinstatement to his former job, or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges. I
shall also recommend that the Company be ordered to offer
Ward immediate and full reinstatement to his former job,
or if that job no longer exists, to a substantially equivalent
position without prejudice to his seniority or other rights
and privileges.
I shall also recommend that the Union and the Company
be ordered jointly and severally to make Ward whole for
any loss of earnings he may have suffered as a result of the
discrimination against him by payment to him of the
amount he normally would have earned from the date of his
discharge to the dates set forth hereafter, less net earnings,
to which shall be added interest at the rate of 6 percent per
annum, in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
ing & Heating Co, 138 NLRB 716 (1963). In the case of the
Union, its backpay liability shall terminate 5 days after it
notifies the Company and Ward that it has no objection to
his reinstatement, as provided above. In the case of the
Company, its backpay liability shall terminate on the date
that Ward is offered reinstatement.
I shall further recommend that the Company be ordered
to preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll re-
cords, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due.
CONCLUSIONS OF LAW
. 1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By causing the Company to discharge Ward for non-
payment of dues and initiation fees that were not delin-
quent, the Union has engaged in unfair labor practices in
violation of Section 8(b)(1)(A) and (2) of the Act.
4. By discharging Ward for nonmembership in the
Union when it had reasonable cause to believe that Ward
was suspended from the Union for nonpayment of dues and
initiation fees that were not delinquent, the Company has
engaged in unfair labor practices within, the meaning of
Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 31
A. Respondent United Brotherhood of Carpenters and
Joiners of America, Millmen's Union Local No. 338, AFL-
CIO, its officers, representatives, and agents, shall.
1. Cease and desist from:
(a) Causing or attempting to cause Alcoa Construction
Systems, Inc., to discharge any employee for nonpayment
of dues and initiation fees that are not delinquent
(b) Causing or attempting to cause Alcoa Construction
Systems, Inc , to discriminate against any employee in viola-
tion of Section 8(a)(3) of the Act.
(c) In any like or related manner, restraining or coercing
employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights are
affected by the lawful enforcement of a lawful agreement
requiring membership in a labor organization as a condition
of employment.
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Alcoa Con-
struction Systems, Inc , make Randy L. Ward whole for any
loss of earnings he may have suffered as a result of the
discrimination against him in the manner set forth in the
section of this decision entitled "The Remedy."
(b) Notify Alcoa Construction Systems, Inc., in writing,
that it withdraws its objection to Ward's employment and
requests the Company to offer him reinstatement , and fur-
nish Ward with a copy of such notification.
(c) Post at its offices and meeting halls copies of the
attached notice marked "Appendix A." 32 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being signed by an authorized representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by it to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Deliver to the Regional Director for Region 19 signed
copies of said notice in sufficient numbers to be posted by
Alcoa Construction Systems, Inc., in all places where no-
tices to employees are customarily posted.
(e) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
B. Respondent Alcoa Construction Systems, Inc., its of-
ficers, agents, successors and assigns , shall:
31 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order , and all objections thereto shall be deemed
waived for all purposes
1. Cease and desist from:
(a) Discharging any employee for nonmembership in a
union unless that discharge is pursuant to the lawful en-
forcement of a lawful agreement requiring membership in
a labor organization as a condition of employment.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by the lawful en-
forcement of a lawful agreement requiring membership in
a labor organization as a condition of employment.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Randy L. Ward immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Jointly and severally with Respondent United Broth-
erhood of Carpenters and Joiners of America, Millmen's
Union Local No. 338, AFL-CIO, make Randy L. Ward
whole for any loss of earnings suffered as a result of the
discrimination against him in the manner set forth in the
section of this decision entitled "The Remedy "
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due.
(d) Post at its Kent, Washington, place of business (or at
any location the business may have moved to) copies of the
attached notice marked "Appendix B." 33 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by its representative,
shall be posted by it immediately upon receipt thereof and
be maintained by it for 60 consecutive days, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent Company to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Deliver to the Regional Director for Region 19 signed
copies of said notice in sufficient number to be posted by
United Brotherhood of Carpenters and Joiners of America,
Millmen's Union Local No. 338, AFL-CIO, in places where
notices to members are customarily posted.
(f) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
32 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board
33 See In 32
ALCOA CONSTRUCTION SYSTEMS INC. 461
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
APPENDIX A 1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-4532.
APPENDIX B
Pursuant to the recommended Order of an Administra-
tive Law Judge of the National Labor Relations Board, and
in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
After a trial in which all sides had a chance to give evidence,
an Administrative Law Judge of the National Labor Rela-
tions Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
WE WILL NOT cause or attempt to cause Alcoa Con-
struction Systems, Inc., to discharge any employee for
nonpayment of dues and initiation fees that are not
delinquent.
WE WILL NOT cause or attempt to cause Alcoa Con-
struction Systems, Inc , to discriminate against any em-
ployee in violation of Section 8(a)(3) of the Act.
WE WILL NOT, in any like or related manner, restrain
or coerce employees in the exercise of their rights guar-
anteed in Section 7 of the Act, except to the extent that
such rights may be affected by the lawful enforcement
of a lawful agreement requiring membership in a labor
organization as a condition of employment.
WE WILL notify Alcoa Construction Systems, Inc., in
writing, that we withdraw our objections to the employ-
ment of Randy L. Ward and request his reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent position, and WE WILL furnish
him with a copy of such notification:
WE WILL make Randy L. Ward whole by paying him
backpay with interest at 6'percent
Dated By
UNITED BROTHERHOOD OF CAR.
PENTERS AND JOINERS OF AMERI-
CA, MILLMEN'S UNION LOCAL
No 338 AFL-CIO
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed 'to the Board's Office, 10th Floor, Republic Building,
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the recommended Order of an Administra-
tive Law Judge of the National Labor Relations Board, and
in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
After a trial in which all sides had a chance to give evidence,
an Administrative Law Judge of the National Labor Rela-
tions Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
WE WILL NOT discharge any employee for nonmem-
bership in a union unless the discharge is pursuant to
the lawful enforcement of a lawful agreement requiring
membership in a labor organization as a condition of
employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by the
lawful enforcement of a lawful agreement requiring
membership in a labor organization as a condition of
employment.
WE WILL offer Randy L Ward immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
WE WILL make Randy L. Ward whole by paying him
backpay with interest at 6 percent
ALCOA CONSTRUCTION SYSTEMS,
INC
(Employer)
Dated . By
(Representative) . (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 10th Floor, Republic, Building,
1511 Third Avenue, Seattle, Washington 98101, Telephone
206-442-4532.