American Fire Sprinkler Corp., Local 314

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 428 (N.L.R.B. 1989)

428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada and Sprinkler Fit-
ters and Apprentices Local Union No. 314 of
the United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting In-
dustry of the United States and Canada (Ameri-
can Fire Sprinkler Corporation ) and Charles F.
Enderle . Case 17-CB-3109
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN, CRACRAFT, AND DEVANEY
On May 5, 1986, Administrative Law Judge
James L. Rose issued the attached decision. The
Respondents filed exceptions and a supporting
brief, and the General Counsel filed a brief in
answer to the Respondents ' exceptions.
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 as modified, to modify the remedy,'
and to adopt the recommended Order as modified.
The judge found that the Respondents violated
Section 8(b)(1)(A) of the Act by maintaining, in
conjunction with a union -shop agreement with the
Employer, a requirement that fines be paid before
dues . The judge also found that the Respondents
violated Section 8(b)(1)(A) by finding employee-
members Charles Riggle and Charles Enderle for
allegedly violating a "vehicle return" rule. We
agree with the judge for the following reasons.2
Section 166(c) of the constitution of Respondent
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada (United Association)
states : "National and Local assessments , discipli-
nary assessments , and loans are payable before
dues ." Article 3 of the collective-bargaining agree-
ment between the Employer and Respondent
Sprinkler Fitters and Apprentices Local 314 of the
United Association (Local 314) requires the Em-
ployer's sprinkler fitters to become members of,
and maintain their membership in, Local 314 as a
condition of employment.3 In order to join or
' Interest shall be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 ( 1987).
2 The judge also found that the Respondents ' fining of Riggle and En-
derle did not breach the Respondents' duty of fair representation No ex-
ceptions were filed to this finding Because we agree with the judge's
finding that these fines violated Sec . 8(b)(1)(A) on another basis , it is un-
necessary for us to pass on whether the same conduct constituted a
breach of the duty of fair representation.
0 The collective-bargaining agreement was between Local 314 and Na-
tional Fire Sprinkler Association , Inc, of which the Employer, American
Fire Sprinkler Corporation , was a member.
retain membership in Local 314, an employee must
pay dues to Local 314. The judge concluded, and
we agree, that , under established precedent,4 the
Respondents ' maintenance of section 166(c) in con-
junction with article 3 violates Section 8(b)(1)(A)
of the Act, in that it implicitly threatens employees
who are fined that they may suffer loss of employ-
ment of reasons other than failure to pay dues or
initiation fees.5
At a special prestrike meeting on June 22, 1984,
Local 314 passed a resolution providing that "if
L.U. #314 goes on strike July 1, 1984, all Compa-
ny-owned vehicles driven by L.U. #314 members
[must] be returned to the Company Parking Lot
midnight June 30, 1984 ." Local 314 subsequently
fined employee-members Charles Riggle and
Charles Enderle for keeping their company trucks
at their homes during part of the strike, even
though at the time they had been performing emer-
gency work with Local 314's approval. The em-
ployees' appeals of their fines were denied by the
United Association. The judge concluded, and we
agree , that by fining Enderle and Riggle the Re-
spondents violated Section 8(b)(1)(A) of the Act.
In adopting the judge 's conclusion that, under
Scofield v. NLRB,6 Riggle 's and Enderle 's fines
were unlawful , we find it unnecessary to pass on
the judge's findings that the vehicle-return rule did
not reflect a legitimate union concern and that it
was adopted without discussion. Rather, we rely
solely on the judge's finding that the rule was not
reasonably enforced against Riggle and Enderle, in
view of the ambiguity of the application of the rule
to employees working on emergency jobs. The rule
did not mention emergency work, even though the
Employer and Local 314 had an agreement that
* Elevator Constructors Local 8 (San Francisco Elevator), 243 NLRB 53
(1979), motion for rehearing denied 248 NLRB 951 (1980), enfd . 665 F.2d
376 (D .C Cit. 1981), Laborers Local 1445 (Badger Plants), 266 NLRB 386
(1983).
5In adopting this conclusion , we do not rely on the judge's finding
that the Respondents had an obligation to inform Enderle and Riggle that
the fines assessed against them did not have to be paid for them to retain
their membership status for purposes of employment
The judge 's recommended Order provides that the Respondent shall
not maintain sec 166(c) of their constitution so long as any collective-
bargaining agreement covering their members contains a union -security
clause The Respondents contend that this language is overly broad be-
cause some United Association locals have collective -bargaining agree-
ments that do not include union -security clauses and, thus , the application
of a fines-payable-before-dues requirement to employee -members covered
by these agreements is lawful. Because the 8(b)(1)(A) violation found
here can occur only when employee-members are subject to a union-se-
curity clause, our Order requires the Respondents to cease maintaining,
and to rescind , sec. 166(c) insofar as this requirement exists in conjunc-
tion with collective-bargaining agreements containing union -security
clauses. We view this language as merely a refinement making the terms
of the Order more closely reflect the substance of the violative conduct.
Cf. Plumbers Local 460, 287 NLRB 788 (1987); Laborers Local 1445,
above, Elevator Constructors Local 8 , above.
6 394 U.S 423 (1969).
295 NLRB No. 49
PLUMBERS LOCAL 314 (AMERICAN FIRE SPRINKLER)
emergency work would be performed during the
strike. Even Local 314's vice president admitted he
did not know whether, under the rule, an employee
would be allowed to keep his truck if working on
an emergency project lasting more than 1 day.
Thus, we agree with the judge that the rule was
unreasonably enforced against Riggle and Enderle.
The Respondents contend that the fining of
Riggle and Enderle for violating the vehicle-return
rule was strictly a matter of internal union concern.
We disagree . While he was appealing his fine to
the United Association , Riggle attempted to pay
his dues on a quarterly basis, as he had previously
done. Local 314, however, would not accept a 3-
month payment . Rather , it allowed him to pay only
1 month at a time . Similarly , during the period that
Enderle was appealing his fine, he found Local 314
hesitant to accept any dues from him. Once he
pointed out, however, that while an appeal was
pending the practice was to allow the appellant to
pay 1 month 's dues at a time, he was permitted to
pay just 1 month's dues. Additionally, the letters
that Riggle and Enderle received from the United
Association denying their appeals specifically
stated that their fines were payable before dues, in
accordance with section 166(c) of the constitution.
It is thus clear that the Respondents ' enforce-
ment of the vehicle -return rule against Riggle and
Enderle was not solely an internal union matter. In
permitting them to pay dues only a month at a time
while the fines were being appealed, Local 314 ef-
fectively was preventing them from prepaying their
dues for a longer period so that if their appeals
were denied the "fines payable before dues" rule
could be brought to bear at the earliest possible
time to compel payment of the fines. Additionally,
when the United Association denied their appeals,
it explicitly invoked the "fines payable before
dues" requirement . Because as noted above , Riggle
and Enderle were required to pay dues to Local
314 in order to keep their jobs, the manner in
which the Respondents enforced the vehicle-return
rule against them implicitly threatened them with
job loss. Thus, the enforcement of this rule against
Riggle and Enderle was not solely an internal
union matter but, rather, affected their employment
status.'
Accordingly, we adopt the judge's recommended
Order as modified to conform to the violations
found above.
T In light of our finding that the Respondents ' enforcement of the vehi-
cle- return rule against Riggle and Enderle affected their employment
status, it is unnecessary for us to pass on whether, absent such a finding,
the enforcement of the rule against them would have been unlawful.
429
ORDER
The National Labor Relations Board orders that
the Respondents, United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada
and Sprinkler Fitters and Apprentices Local Union
No. 314 of the United Association of Journeymen
and Apprentices of Plumbing and Pipe Fitting In-
dustry of the United States and Canada, Kansas
City, Missouri , their officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Unreasonably enforcing union rules against
members.
(b) Maintaining, in conjunction with a collective-
bargaining agreement containing a union-security
clause, section 166(c) of the United Association
constitution, which provides, without qualification,
that "National and Local assessments , disciplinary
assessments and loans are payable before dues."
(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 purpose of the Act.
(a) Rescind the $500 fine against Charles Enderle
and the $150 fine against Charles Riggle and reim-
burse them, respectively, for these amounts with
interest as provided in the remedy section of the
judge 's decision , as modified herein.
(b) Remove from their files any references to the
charges and disciplinary action against Enderle and
Riggle and notify them in writing that this has
been done and that the unlawful disciplinary pro-
ceedings will not be used against them in any way.
(c) Rescind from their constitutions, bylaws, or
other governing documents section 166 (c), quoted
above, insofar as it exists in conjunction with
union-security clauses in collective-bargaining
agreements or is applied in conjunction with such
clauses.
(d) Post at Local 314 offices and meeting halls
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Re-
gional Director for Region 17, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
8 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."
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by American
Fire Sprinkler Corporation, if willing, at all places
where notices to employees are customarily posted.
(f) Notify the Regional Director in writing with
20 days from the date of this Order what steps the
Respondents have taken to comply.
APPENDIX
NOTICE To MEMBERS
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 unreasonably enforce our rules
against our members.
We will not maintain, in conjunction with a
union-security clause, section 166(c) of the United
Association's constitution, which provides: "Na-
tional and Local assessments, disciplinary assess-
ments and loans are payable before dues."
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 rescind and refund with interest the
$150 fine against Charles Riggle and the $500 fine
against Charles Enderle imposed for allegedly vio-
lating the June 22, 1984 rule concerning return of
company-owned vehicles.
WE WILL notify Charles Riggle and Charles En-
derle that we have removed from our files any ref-
erence to the charges and disciplinary action
against them for alleged violation of the vehicle-
return rule and that we will not use these charges
or disciplinary action against them in any way.
WE WILL rescind from our constitutions, bylaws,
or other governing documents section 166(c) of the
United Association constitution, insofar as it exists
in conjunction with union-security clauses in col-
lective-bargaining agreements or is applied in con-
junction with such clauses.
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUS-
TRY OF THE UNITED STATES AND
CANADA AND SPRINKLER FITTERS
AND APPRENTICES LOCAL UNION No.
314 OF THE UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPE FITTING
INDUSTRY OF THE UNITED STATES
AND CANADA
Julie K. Hughes, Esq., for the General Counsel.
John P. Hurley, Esq. (Jolley, Walsh, Hager & Gordon), of
Kansas City, Missouri , for Respondent Local 314.
Brian A. Powers, Esq., and Charles W. Gilligan, Esq.
(O'Donoghue & O'Donoghue), of Washington , D.C., for
Respondent United Association.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me on 22 January 1986, at
Kansas City, Kansas, on the General Counsel's com-
plaint' alleging that the Respondents approved fines im-
posed on the Charging Party and another individual for
violating a union rule without having given them fair
notice that their conduct was violative of the rule. It is
alleged that the Respondents thereby failed to represent
them in violation of Section 8(b)(1)(A) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq . It is also
alleged that the Respondents maintained in their constitu-
tion a clause providing that fines would be payable
before dues which, in connection with a union-shop
clause in the applicable collective-bargaining agreement,
coerced and restrained employees in the exercise of their
Section 7 rights in violation of Section 8(b)(1)(A) of the
Act.
Both Respondents deny the substantive allegations of
the complaint or that in any manner they committed any
violation of the Act.
On the record as a whole, including my observation of
the witnesses , briefs, and arguments of counsel , I issue
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
It is admitted, and I find , that Sprinkler Fitters and
Apprentices Local Union No. 314 of the United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and
Canada (Local 314) is a labor organization within the
' The charge was filed on 19 August 1985 , and amended on 25 Sep-
tember 1985. The complaint issued on 25 October 1985
PLUMBERS LOCAL 314 (AMERICAN FIRE SPRINKLER)
meaning of Section 2(5) of the Act. It is also admitted,
and I find, that United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada (the United Association)
is a labor organization within the meaning of Section
2(5) of the Act, and that Local 314 is a subordinate
entity . Although Local 314 is in many respects autono-
mous, the United Association maintains certain adminis-
trative control over it, and has the authority to review
certain of its decisions-including the discipline of mem-
bers.
In connection with its representation of employees,
Local 314 has had a series of collective -bargaining agree-
ments with National Fire Sprinkler Association , Inc. (the
Sprinkler Association), one of whose members, the
American Fire Sprinkler Corporation (the Employer), is
a Missouri corporation with an office and principal place
of business in Lenexa , Kansas, and a fabrication facility
in Kansas City, Missouri.
The Employer has been engaged in the fabrication,
sale, installation , and service of fire sprinkler in the
Greater Kansas City area. Annually the Employer sells
and ships directly from its Kansas City, Missouri facility
products goods, and materials valued in excess of $50,000
directly to points outside the State of Missouri. It is ad-
mitted , and I find , that the Employer is a corporation en-
gaged in interstate commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Essential Facts
In the summer of 19842 officials of Local 314 began
negotiations with the Sprinkler Assocation for a collec-
tive-bargaining agreement to replace the one due to
expire at midnight 30 June.
On 22 June, a special meeting of the Union's member-
ship was called to discuss proposals submitted by the
Sprinkler Association . At that meeting it was determined
to reject those proposals and, if necessary , to commence
striking against its members beginning 1 July. Also at the
meeting, according to the minutes, the following resolu-
tion was proposed and passed:
Motion made that if L.U. #314 goes on strike July
1, 1984, all Company-owned vehicles driven by
L.U. #314 members be returned to the Company
Parking Lot midnight June 30, 1984.
Such a resolution had never before been adopted by
the membership of Local 314. Nor was there any specific
discussion prior to adoption of the resolution on 22 June,
at least none which any witness could remember. Ac-
cording to the testimony of Joseph Miller, the business
manager of Local 314 at the time, while there was "very
little talk" about the resolution , its purpose was to moni-
tor whether members were surreptitiously working
during the strike.
Certain of the Employer 's employees (as well , presum-
ably, as employees of other employers) are styled "serv-
2 All dates are in 1984 unless otherwise indicated.
431
ice fitters" who, among other things , are on call to do
emergency work and are allowed to keep a company
truck. Typically a service worker will drive directly
from his home to the jobsite to which he is assigned
without first going to the Employer's Lenexa office or
Kansas City fabrication facility . A service fitter will go
to those places only rarely and then only as needed.
Service fitters are entitled to use their assigned trucks for
personal business, at least on a limited basis.
In past strikes Local 314 had allowed its members to
do emergency service work on an ad hoc basis . Members
of Sprinkler Association were informed that such would
be the policy in 1984. And, specifically , the Union gave
permission for work to be finished on one of the Em-
ployer's projects , to which Charles Enderle and Charles
Riggle was assigned.
Thus on 1 July, Enderle and Riggle continued to work
on a project of the Employer; and , rather than returning
their respective vehicles to the Employer 's facility each
night, they continued to drive them home.
Shortly after the strike began , officers of Local 314
noticed that Enderle and Riggle had Employer trucks
parked in their respective driveways, a fact which was
communicated to the Employer-but not to Enderle or
Riggle . Robert Caputo, construction manager of the Em-
ployer, "contacted Mr. Enderle and Mr . Riggle and they
complied (by turning their vehicles in)."
Charges under the United Association constitution
were brought against Enderle and Riggle by John
McCormick , the vice president of Local 314 respectively
on 2 August and 6 September 1984. The nature of the
offense against each was, "Kept company truck at his
residence in violation of directive MSC of local Member-
ship that all company trucks be returned to Company
lot."
Trial dates were set . In the case of Riggle, the execu-
tive board met and fined him $500 for this rule violation
prior to his trial date . When he pointed this out, the fine
was canceled , the trial date reset, and when he showed
up, he was found guilty . However, since Riggle admitted
he had kept the truck , but thought it was permissible
since he had permission to work, his fine was set at $150.
Enderle was fined $500 because , according to Miller,
he did not admit his guilt . (The supposed distinction be-
tween Enderle 's denial of guilt and Riggle 's admission is
not clear from this record.)
Both Enderle and Riggle appealed their fines to the
United Association . The appeals were denied, and by
letter of 2 July 1985 from the United Association's gen-
eral secretary -treasurer to Riggle:
This will officially notify you that the General Ex-
ecutive Board has denied your appeal and has ap-
proved the action taken by Local Union 314,
Kansas City, Missouri, in placing a $150.00 fine
against you. In accordance with Section 166(c) of
the United Association Constitution, the $150.00
fine is payable before dues.
Similarly, on 2 July 1985, the United Association 's gener-
al secretary-treasurer , wrote Enderle:
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This will officially notify you that the General Ex-
ecutive Board has denied your appeal and has ap-
proved the action taken by Local Union 314,
Kansas City , Missouri , in placing a $500 .00 fine
against you . In accordance with Section 166(c) of
the United Association Constitution, the $500.00
fine is payable before dues.
On 2 August 1985 Riggle paid his $150 fine and on 18
September Enderle paid his $500 fine.
The current collective -bargaining agreement provides
for union membership of all employees in the bargaining
unit and requires , on request , the Employer to discharge
those who do not maintain their membership in accord-
ance with this clause.3
B. Analysis and Concluding Findings
The General Counsel contends that by fining Enderle
and Riggle , under the facts of this case , Local 314 violat-
ed its duty of fair representation to its members , and the
United Association is jointly liable inasmuch as it ap-
proved the fines. In addition , the General Counsel con-
tends that by maintaining the fines -before-dues clause in
the constitution in connection with the union-shop clause
of the collective-bargaining agreement , Local 314 and
the United Association implicitly threatened members
with loss of employment for reasons other than the peri-
odic payment of dues and initiation fees uniformly re-
quired . They thereby violated Section 8(b)(1)(A) of the
Act.
1. The vehicle return rule
Both Respondents cite Scofield v. NLRB, 394 U.S. 423
(1969) (which affirmed the general right of unions to dis-
cipline members with internal sanctions so long as their
jobs were not affected, NLRB v. Allis-Chalmers Mfg. Co.,
388 U . S. 175 (1967)), in contending that a union may dis-
cipline members where the rule enforced does not in-
fringe on any Congressional policy, reflects a legitimate
interest of the union, is reasonably enforced against
union members and the member is free to escape the rule
by resigning union membership. Both contend that the
four tests of Scofield were followed by Local 314 in this
case . Therefore the fines against Riggle and Enderle
were not proscribed by the Act.
First, I conclude that, as applied here, the vehicle rule
does not reflect a legitimate union concern . In fact the
Respondent 's witnesses were not very clear on its pur-
pose . According to Miller, the rule was to "monitor
where our members were working or if any of them
were working outside the emergency rule, the permission
for emergency work. So we could monitor and keep
track of the trucks, basically." However, Miller did not
satisfactorily explain how the vehicle rule could possibly
aid in this . John McCormick, the Union 's vice president
' It is noted that Kansas is a "Right-to-Work" state , while Missouri is
not However , there is no question concerning the general applicability of
the union security clause in this matter , particularly inasmuch as most of
the work done by both Enderle and Riggle takes place in Missouri. Nei-
ther Respondent contended that the union -secunty clause is inapplicable
to Enderle , Riggle, or the Employer 's employees in general
(and signer of the charges ), thought the rule would have
an economic impact and therefore help the strike by ex-
tending emergency service calls by one -half hour. Since
none of the witnesses could remember whatever limited
discussion there may have been before adopting the rule,
even these statements of policy concern are based on
speculation rather than proof.
In any event, whatever may be the general efficacy of
the Respondents ' argument in favor of the rule, on the
first day of the strike, Local 314 gave the Employer per-
mission for Enderle and Riggle to continue to work
during the strike . Thus, the trucks would have been gone
during working hours . To return them could not have
furthered the aims seen by either Miller or McCormick.
Strict adherence would have been a detriment to Enderle
and Riggle , but of no apparent benefit to Local 314. It is
totally unexplained on this record or in argument how
compliance with the rule by Enderle and Riggle could
have benefited any legitmate policy concern of the
Union.
Scofield, I conclude, places the burden of proving the
existence of a legitmate policy basis on the union which
undertakes to discipline its members . Local 314 did not
carry its burden.
In addition , the fines of Enderle and Riggle on this
record are patently unreasonable. The resolution was
adopted without discussion. There had never before been
such a resolution or requirement that service fitters who
had the use of company trucks had to return them at the
time of a strike . Here local 314 had given the Employer
permission to continue to work on the project to which
Enderle and Riggle had been assigned. Therefore, it is
clearly reasonable that Enderle and Riggle would believe
that so long as they had permission to work , they could
keep their trucks. Even McCormick did not know
whether a service fitter would be allowed to keep his
truck if working on an emergency project lasting more
than 1 day-as was the case here . While both Respond-
ents contend that the burden was on Enderle and Riggle
to clarify this matter, I conclude that the burden for any
ambiguity should properly be placed on Local 314,
whose rule it was.
Finally, neither Enderle nor Riggle was contacted at
any time by any representative of Local 314 about this
matter, until McCormick filed charges . Neither was ever
told that keeping the truck under the circumstances here
was in violation of the 22 June resolution . Indeed, they
were informed of their alleged violation of this rule by
the Employer and, immediately upon notification, they in
fact returned the vehicles to the Company's premises. If
Local 314 was simply interested in seeking compliance
with the alleged policy considerations of the rule, surely
Miller or someone would have told Enderle and Riggle.
Instead formal charges were brought and substantial
fines levied . On these facts , the equities are so over-
whelmingly in favor of Enderle and Riggle as to estab-
lish that the fines were invidious and arbitrary. The rule
was not reasonably enforced and therefore did not meet
one of the Scofield criteria.
As applied to the facts of this case, fining Enderle and
Riggle for failure of strict compliance with the vehicle
PLUMBERS LOCAL 314 (AMERICAN FIRE SPRINKLER)
return rule was violative of Section 8(b)(1)(A) of the
Act.
2. The fines-before-dues clause
As quoted in its letters denying their respective ap-
peals, in material part the constitution of the United As-
sociation Section 166 (c) reads : "National and Local as-
sessments, disciplinary assessments, and loans are payable
before dues." Such a provision , along with the require-
ment of union membership for continued employment,
violates Section 8(b)(1)(A) of the Act. Elevator Construc-
tors Local 8 (San Francisco Elevator Co.), 243 NLRB 53
(1979).
In Laborers 1445 (Badger Plants), 266 NLRB 386
(1983), the Board explained:
[A] union -security clause which utilizes the contin-
ued threat of job loss to exert pressure on an em-
ployee to maintain union membership status, cou-
pled with a provision requiring payment of fines
before acceptance of dues, constitutes an unlawful
threat to an employee 's employment relationship.
The threat arises because employees knowing that
their acceptance of dues is conditioned upon pay-
ment of fines can reasonably assume that they must
make all of the payments in order to avoid the risk
that the union will seek their discharge . Such a risk,
the Board concluded , is not required by the Act nor
is a union permitted to threaten action indirectly
which it cannot threaten directly . In this connec-
tion , the Board found that the combination of the
fines-payable bylaw with the union -security clause
was an unlawful threat even in the absence of an
overt threat to cause the discharge of the employee.
The United Association contends that Section 166(c) is
designed simply "to affect a fined member's intraunion
status until the fine is paid ." Thus, it is argued, the only
purpose of this rule is to prohibit such individuals as En-
derle and Riggle from holding union office or being del-
egates to the International convention and the like.
There was no threat, direct or implied, that their jobs
were in jeopardy if they failed to pay the fines. I reject
this argument.
At no time during the proceedings before Local 314 or
the United Association were Enderle and Riggle ever in-
formed that they did not have to pay the fines in order
to continue to be employees . To the contrary , the clear
implication of the letters from the United Association
was they could continue to pay dues prior to its ruling
on the appeals, but after the appeals had been denied, the
fines would have to be paid before dues. In fact, the min-
utes of the Local 314 executive board concerning these
fines reads : "Both are assessed $500. Each must be paid
prior to any new issuance of stamps (showing dues
paid)."
In effect the United Association argues that since the
Federal labor laws prohibit it from doing what is implied
in its letter, these individuals could not have been threat-
ened-that the employee members should be charged
with the sophistication in labor law of the Union's staff
attorneys . I reject this contention. In Badger Plants,
supra, the Board quoted with approval from the order
433
enforcing San Francisco Elevator by the Circuit Court for
the District of Columbia Circuit:
We find it similarly reasonable for the Board to de-
termine that a union security clause conjoined with
a fines payable bylaw may induce unsophisticated
employees to fear that will lose their jobs if they do
not pay their fines. [665 F . 2d 376 , 382 (1981).]
I conclude that both Respondents had an obligation to
inform Enderle and Riggle that any fines assessed against
them did not have to be paid in order for them to retain
their membership status for purposes of employment,
even though losing that status for purpose of intraunion
affairs . I therefore conclude that Section 166(c) as writ-
ten, in connection with a union-shop clause in a collec-
tive-bargaining agreement and the facts of this particular
case, implies a threat to employees who are fined that
they may suffer loss of employment for reasons other
than their failure to pay dues and initiation fees uniform-
ly required . By maintaining Section 166(c) in its constitu-
tion , the United Association has violated Section
8(b)(1)(A) of the Act, and , jointly with Local 314, it vio-
lated Section 8(b)(1)(A) of the Act in approving the fines
levied against Enderle and Riggle.
The United Association contends that it has no respon-
sibility for the fines. However, under the International
constitution , it clearly has the authority and duty to
review such fines and did so in this case . (Review of
Riggle's was summarily denied because it did not meet
the jurisdictional threshold of $500 .) Local 314 is clearly
subordinate to the United Association , notwithstanding
that Local 314 has a certain degree of autonomy with
regard to election of officers , ownership of property, and
the like . For purposes of fining members and withhold-
ing membership status, the United Association is clearly
jointly responsible with the Local Union, and I so find in
this case.
3. The duty of fair representation
Finally , the General Counsel alleges that fining En-
derle and Riggle was a breach of the Respondents' duty
of fair representation.
Though somewhat academic (since I conclude that
levying the fines was in violation of the Act), the issue as
to this theory of unlawfulness is whether the Respond-
ents' actions were related to any representation of En-
derle or Riggle vis -a-vis any employer . See San Francisco
Elevator Co., supra. I conclude they were not. The facts
giving rise to this case did not involve a dispute between
an employee and an employer . The Employer did not
care whether Enderle and Riggle kept the trucks or not.
Either way their employment was not affected (though
not keeping the trucks was a personal detriment). The
dispute was strictly intraunion . Therefore the fining of
Enderle and Riggle was not a breach of the duty of fair
representation.
Such cases as Carpenters 720 (UMC of Louisiana), 276
NLRB 59 (1985 ), appear inapposite. There the member
was fined for violating a hiring hall rule (maintaining his
name on an out-of-work list while working for a nonsig-
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
natory employer). Such relates directly to the union's
representation of employees vis-a-vis employers.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondents ' representation of em-
ployees of employers engaged in interstate commerce,
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 ob-
structing commerce and the free flow thereof within the
meaning of Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having concluded that the Respondents violated the
National Labor Relations Act in certain respects , I shall
order them to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act, including rescinding the fines and remitting the
amounts paid by Enderle and Riggle with interest as pro-
vided for in Florida Steel Corp., 231 NLRB 651 (1977).
See generally Isis Plumbing Co., 138 NLRB 176 (1962).
[Recommended Order omitted from publication.]