Asbestos Workers, Local 5

National Labor Relations Board - Board Decisions

Jun 16, 1971

191 N.L.R.B. 220 (N.L.R.B. 1971)

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Heat and Frost Insulators
and Asbestos Workers, Local No. 5, AFL-CIO (In-
sulation Specialties Corp.) and Steven Patkus. Case
21-CB-3649
June 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On January 8, 1971, Trial Examiner Henry S. Salim
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action as set
forth in the attached Trial Examiner's Decision. There-
after, the Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision and briefs
in support thereof.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.
The Trial Examiner found that Respondent violated
Section 8(b)(1)(A) and 8(b)(2) of the Act by dis-
criminatorily refusing to register Steven Patkus on its
out-of-work list and thereby denying him referral, from
its exclusive hiring hall, to a job at Insulation Special-
ties Corp. While we agree with the Trial Examiner's
conclusion that Respondent violated those sections of
the Act, we do so only for the following reasons.
As more fully set out by the Trial Examiner, Steven
Patkus was employed in the Metropolitan San Diego
area from 1959 to 1968 as an asbestos worker. During
that period he was dispatched to various jobs by the
Respondent Union, which operated an exclusive hiring
hall under a collective-bargaining agreement with
Southern California Chapter, Associated Insulation
Contractors of the Western States (herein called the
Association). A signatory to this agreement, which ex-
pired on July 31, 1969, was Insulation Specialties Corp.
The current collective-bargaining agreement between
the Union and Insulation Specialties was executed on
August 1, 1969, and expires on July 31, 1972. Like its
predecessor, this agreement provides for the operation
191 NLRB No. 38
by the Union of an exclusive hiring hall and it contains
a union-security clause requiring membership in the
Union within 8 days after beginning employment.
In April 1968, David Grossi, owner of Insulation
Specialties Corp., who was familiar with the quality of
Patkus' work, requested the Union to dispatch Patkus
to his plant. The Union did so and Patkus worked for
Insulation Specialties until August 23, 1968, when
Grossi discharged him at the insistence of the Union for
failure to join the Union within the time required by the
union-security provision of the contract. Although Pat-
kus had worked since 1959 for various employers signa-
tory to the Respondent's collective-bargaining agree-
ment, he was not requested to join the Union until the
fall of 1966, when he was first given a membership
application by the Union. Patkus filled out the applica-
tion form and took the required physical examination,
but did not submit the completed form to the Union
until August 1968. Patkus then was required to bring
his initiation fee of $310 to the Union meeting on Au-
gust 16, 1968. When he failed to tender the initiation
fee, the Union rejected his membership application
and, thereafter, requested his discharge.'
Twenty-one months later, on May 12, 1970, Patkus
contacted Mr. Grossi and asked if he could return to
work at his former job. Grossi told Patkus that he
would hire him if Patkus obtained clearance from the
Union. Patkus, thereupon, when to Respondent's hir-
ing hall and asked to register on its out-of-work Iist.2
The Union's business agent, Edward B. Smith, refused
and told Patkus that the Union had been advised by its
attorney that it was not required either to place Patkus'
name on the out-of-work list or to refer him to a job.
Explaining his action at the hearing, Smith testified
that it was his understanding of collective-bargaining
agreement that Patkus was not eligible to register on
the out-of-work list because of his past failure to join
the Union as required by the union-security clause.
Based on the foregoing undisputed facts, we find, as
did the Trial Examiner, that Respondent was derelict
in failing to register Patkus on the out-of-work list and
thereby denying him referral to Insulation Specialties,
but for the reason that it acted without advising Patkus
of what he was required to do in order to qualify for
registration on the out-of-work list. Thus, we reject the
Trial Examiner's reasoning that Patkus' obligation to
join the Union terminted upon the expiration of the
collective-bargaining agreement under which he was
discharged and that he was thereafter entitled, under
' As noted in the Trial Examiner's Decision, Patkus' discharge was the
subject of an earlier 8(b)(1)(A) and 8(b)(2) complaint against this Union in
Case 1-CB-3234. That complaint, however, was subsequently dismissed by
Trial Examiner James R Webster and no exceptions were filed (TXD-SF-
65-69)
2 Registration on the out-of-work list was a prerequisite to referral from
the hiring hall
ASBESTOS WORKERS , LOCAL 5 221
the successor contract, to be treated as a new applicant
for employment. The Trial Examiner's rationale, in our
opinion, is contrary to Board law which holds that
when successive contracts are continuously effective,
without a hiatus period, and contain substantially like
union security provisions, the employees' obligations
thereunder do not automatically terminate upon the
expiration of each such contract.' Rather, each suc-
ceeding agreement becomes, in effect, a continuation of
the preceding one and the employees' union-security
obligations continue uninterrupted from one contract
into the next, particularly where, as here, there is no
hiatus period or lapse of time between execution of the
successive agreements.4 It is thus apparent that the
Respondent had certain rights and Patkus had certain
obligations under the contract. The problem here is
whether the Respondent asserted those rights in a
proper fashion and whether Patkus was entitled to
some consideration when he sought to register.
Respondent contends that it was justified in refusing
to clear Patkus for reemployment after his lawful dis-
charge under the union-security agreement. It argues
that to have registered Patkus on its out-of-work list
would have negated his lawful discharge and made a
mockery of the union-security requirement. In this
connection, Respondent relies on Standard Brands, 5
where the Board found that, regardless of the precise
language used, requests for work which followed
within a month upon the employees' discharges under
a valid union-security clause were, in the circumstances
of that case, so clearly related to the turmoil resulting
from the discharges that they could not be viewed as
applications for new employment, but rather were
more in the nature of requests for reconsideration of the
antecedent discharges. In the instant case, however,
Patkus' request for reemployment, coming 21 months
after his lawful discharge, cannot be construed as a
request for reconsideration of that discharge. Accord-
ingly, the Standard Brands case, supra, is inapposite to
the facts herein.
Respondent further contends, however, that it was
justified in refusing Patkus permission to register on its
out-of-work list because Patkus' prior refusal to com-
ply with the union-security `agreement was deliberate
and willful. We find this contention wholly'irrelevant.
For, even though Patkus previously flouted his obliga-
tion under the union-security provision and was law-
' National Lead Company, et at, 106 NLRB 545, 548. This case, in our
view, renders insignificant the fact that Patkus was discharged under one
collective -bargaining agreement and was refused referral under a subsequent
successor contract. Compare New Jersey Bell Telephone Company, 106
NLRB 1322, enfd. 215 F 2d 835, 839 (C A 2).
' International Union, United Automobile, Aerospace, Agricultural Im-
plement Workers ofAmerica (UAW), AFL-CIO, and its Local 899 (John L
Paulding, Inc), 142 NLRB 296, 299-301; and cases cited- in fn 3, supra.
' Standard Brands, Incorporated, 97 NLRB 737.
fully discharged on that account, this does not permit
the Union forever thereafter unconditionally to deny
him employment in the industry by prohibiting his use
of its exclusive hiring hail.6 This is not to say that
Respondent was required to-treat Patkus' request for
referral as that of a totally new applicant, i.e., one who
would be entitled to immediate and unconditional re-
ferral and, under the current union-security agreement,
to a new 8-day grace period before having to join the
Union.' For, Patkus had already enjoyed more than the
statutory grace period during the period of his prior
employment and Respondent was not required to
countenance his continued nonmembership in the
Union. Rather, upon balancing the conflicting rights
and interests involved, we believe that Patkus was enti-
tled, under tender of such initiation fee and current
dues as the Union customarily requires as a condition
of acquiring membership, to nondiscriminatory treat-
ment by Respondent's hiring hall.' In this connection,
however, it was incumbent upon Respondent to advise
Patkus in explicit terms exactly what his current obli-
gation was under the union-security contract to qualify
for registry on its out-of-work list and referral from its
hiring hall.9 Having failed to do this, the Respondent's
refusal to register Patkus on the out-of-work list and to
refer him for employment by Insulation Specialties,
constituted unlawful discrimination within the purview
of Section 8(b)(1)(A) and 8(b)(2) of the Act.
Accordingly, we find and conclude that Respondent
Union failed to fulfill its fiduciary duty to notify Patkus
of his obligation to join the Union and that it therefore
unlawfully refused to register him on its out-of-work
list and refer him for employment by Insulation Spe-
cialties Corp. in violation of Section 8(b)(1)(A) and
8(b)(2) of the Act.
ORDER
Pursuant to Section 10(c)-of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Interna-
tional Association of Heat and Frost Insulators and
Asbestos Workers, Local No. 5, AFL-CIO, its officers,
agents, and representatives, shall:
6 Mayfair Coat & Suit Co., 140 NLRB 1333, 1335, District Lodge 94,
International Association of Machinists, et at (Consolidated Rock Products
Company, et aL), 126 NLRB 1265, 1266; see also Argonne National Labora-
tory, 123 NLRB 375
Mayfair Coat & Suit Co., supra at 1335.
Cf. District Lodge 94, IAM, supra at 1268; Simmons Company, 150
NLRB 709, 711.
' Rocket and Guided Missile Lodge 946, International Association of
Machinists, et al. (Aerojet-General Corporation), 186 NLRB No. 77, and
cases cited at fn: 1 thereof. The fact that Patkus did not make a tender of
initiation fee when he applied to Respondent for referral is, in these circum-
stances, immaterial
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discriminating against Steven Patkus, or any
other, applicant for employment, in the operation of its
exclusive hiring hall by refusing to register him on its
out-of-work list and denying him referral to jobs with-
out informing him of the steps necessary to qualify for
such registration and referral.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of rights guaranteed in
Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of em-
ployment, as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act:
(a) Make whole Steven Patkus for any loss of pay he
may have suffered as a result of the discrimination
against him by payment to him of a sum of money equal
to the amount he would have earned as wages from the
date of the discrimination, May 13, 1970,- to the date
5 days after mailing the notifications required by para-
graph (b) below, less his net earnings during this
period. The loss of earnings shall be computed in ac-
cordance with the.formula set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon of 6
percent per ,annum as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.
(b) Notify Steven Patkus and Insulation Specialties
Corp. that, upon receiving a tender from Patkus of such
initiation fee and current dues as are uniformly re-
quired as a condition of acquiring membership, the
Union will withdraw its objections to Patkus' employ-
ment and restore him to its out-of-work list.
(c) Notify Steven Patkus, if presently serving in the
Armed Forces of the United States, of his right to full
reinstatement on its out-of-work' list and to referrals to
jobs upon his tender of such initiation fee and current
dues as are uniformly required as a condition of acquir-
ing membership, in accordance with the Selective Ser-
vice Act and the Universal Military Training and Ser-
vice Act, as amended, after discharge from the Armed
Forces.
(d) Post at its hiring halls, offices, and meeting halls,
copies ' of the attached notice' marked "Appendix.""
Copies of said notice, on forms provided by the Re-
gional Director for Region 21, after being duly signed
by Respondent Union's authorized representative,
shall be posted by the Union immediately upon receipt
thereof, and be maintained by Respondent Union for
60 consecutive days thereafter, in conspicuous places,
10 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "POSTED 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 "
including all places where notices to members are cus-
tomarily' posted. Reasonable steps shall be taken by
Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Forward signed copies of the Appendix to the
Regional Director for Region 21, for, posting by the
Employer, Insulation Specialties Corp., at its place of
busines in San" Diego, California, in places where no-
tices to employees are customarily posted, if the Em-
ployer is willing to do so.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of the receipt of
this Decision, what steps the Respondent has taken to
comply herewith.
CHAIRMAN MILLER , concurring:
I concur in the result.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
NOTICE TO APPLICANTS FOR EMPLOYMENT
REFERRAL
WE WILL NOT discriminate against Steven Pat-
kus, or any other applicant for employment, in the
operation of our exclusive hiring hall by refusing
to register him on our out-of-work list and denying
him referral to jobs without informing him of the
steps necessary to qualify for such registration and
referral.
WE WILL NOT in any like or related manner,
restrain or coerce employees in the exercise of
rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by
an agreement requiring membership in a labor or-
ganization as a condition for employment ,' as au-
thorized by Section 8(a)(3) of the Act.
WE WILL make Steven Patkus whole for any
loss of pay he may have suffered as a result of the
discrimination against him by paying him a sum
of money equal to the amount he would have
earned as wages from the date of the' discri mina-
tion, May 13, 1970, to the date 5 days after mailing
the notifications required by the following para-
graph herein, less his net earnings during this
period.
WE WILL notify Steven Patkus and Insulation
Specialties Corp. that, upon receiving a tender
from Patkus of such initiation fee and current dues
as are uniformly required as a condition of acquir-
ing membership, WE WILL withdraw our objec-
ASBESTOS WORKERS , LOCAL 5
tions to Patkus'. employment and restore him to
our out-of-work list.`
WE WILL notify Steven Patkus, if. presently
serving in the Armed Forces of the United states,
of his right to full 'reinstatement on our out-of-
work list and to referrals to jobs upon his tender
of such initiation mfee and current dues as are uni-
formly required as a. condition of acquiring mem-
bership, in accordance with the Selective Service
Act'and theUniversal Military Training and Ser-
vice YActj.as amended, after discharge from the
Armed, -Forces.
INTERNATIONAL
ASSOCIATION OF HEAT
AND
FROST INSULATORS AND
ASBESTOS WORKERS,
LOCAL No 5, AFL-CIO
(Labor Organization)
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 directed to the Board's
Office, Eastern Columbia Building, Room 600, 849
South Broadway, Los Angeles, California 90014, Tele-
phone 213-688-5254.
TRIAL EXAMINER'S DEICSION
HENRY S. SAHM, Trial Examiner: The sole issue in this
proceeding is whether an employee, once discharged for fail-
ure to join a union under a union-security contract, can be
denied referral to the same job 21 months later.
STATEMENT OF THE CASE
This case, heard at,San Diego, California, on October 8,
1970,,pursuant to a charge filed the preceding May 13 and a
complaint issued on August 13, presents the question
whether the Respondent Union violated Section 8(b)(1)(a)
and (2) of the Act by illegally denying to a job applicant, the
alleged discriminatee, the use of its exclusive hiring hall facili-
ties because of his lack of membership in the Union. Upon the
entire record, and after due consideration of the briefs filed
by General Counsel and by Respondent on November 20,
there are hereby made the following:
FINDINGS OF FACT
L THE BUSINESS OF THE EMPLOYER AND
THE LABOR ORGANIZATION INVOLVED'"
223
Insulation Specialties Corporation is engaged 'in insulation
work,with its principal place of business in San Diego, Cali-
fornia.,Duririg the past 12 months,-it performed services for
the following ,departments of the United.States Government:
Navy, Air Force,< and the General Services Administration,
which: serviceswere valued atapproximately.$250,000. It is
found that Insulation Specialties Corporation is an employer
engaged in commerce within=the meaning of Section 2(6) and
(7) of the Act.'
The Respondent, herein called the Union, is a labor organi-
zation within- the, meaning:of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
This is the second time that the Respondent Union has
been on trial for an alleged violation of Section 8(b)(1)(A) and
8(b)(2) of the National Labor Relations Act. The first time
was in Feburary 1969, before Trial Examiner James R. Web-
ster, who dismissed the complaint by a decision which he
issued on May 8, 1969. No exceptions were filed by the Gen-
eral Counsel. The Trial Examiner takes administrative or
official notice of the record and decision in the first case, Case
21-CB-3234, as though fully set forth in this Decision 2
A. The Uncontradicted Evidence
Steven Patkus, the alleged discriminatee, was employed in
the metropolitan San Diego area from 1959 to 1968 as an
asbestos worker. From 1959 to August 1968, he was dis-
patched to various jobs by the Respondent Union which oper-
ated an exclusive hiring hall under a collective- bargaining
agreement . A signatory to this agreement, which expired on
July 31, 1969 , was Insulation Specialties, Inc.
In April 1968, David Grossi, owner of Insulation Special-
ties, Inc., who was familiar with the quality of Patkus' work,
requested the Union to dispatch Patkus to his plant. Patkus
worked for Grossi until August 23, 1968, when Grossi dis-
charged him at the insistence of the Union under a union-
security, clause in Grossi's contract-which required all asbes-
tos workers to join the union 30 days after beginning
employment. Although he had been given an application for
membership in the Union in the fall of 1966, when he ac-
quired permanent journeyman status, Patkus testified at the
first hearing in 1969 that he wanted to join the Union, but due
to a personal financial situation he was unable to pay the $310
union initiation fee. Patkus also claimed that the Union had
granted him an extension of time in which to pay the initia-
tion fee, which accounted for him not being present at the
union meeting on August 16, 1968, when his application for
membership was scheduled to be voted on by the members.
It appears that the Trial Examiner in the first hearing did not
credit 'his excuses for not appearing at the meeting and, ac-
cordingly, found for the Union and dismissed ,the complaint.
The General Counsel filed no exceptioris'-to the decision.'
In October 1968, a month after his diischarge,f'lsatkus left
San Diego and went to Indiana where he found employment
as a heavy equipment operator. While there, Patkus received
a letter dated December 24, 1968, from Attorney Leo
Geffner, which reads in pertinent part as follows:
I Ready Mixed Concrete and Materials. Inc., 122 NLRB 318; Siemons
Mailing Service, 122 NLRB 81; St. Francis Pie Shop, Inc., 172 NLRB No.
16.
6 See Section 102.68 and 102.69(b) of the Board's rules (Rules and Regu-
lations and Statements of Procedure, NLRB, Series 8, as amended) and
Section 9(d) of the Act.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am authorized to advise you that Local 5 withdraws
any objection to your being employed by Insulation
Specialities Corp. or any other employer. Local 5 agrees
that you can register at the office of Local 5 regarding
dispatchment and hiring; and you will be dispatched
without discrimination in accordance with the terms and
conditions of the applicable collective bargaining agree-
ment. This position is made unconditionally. By the
Union withdrawing any objection to your employment
under the agreement , the Union is in no way admitting
any violation of the National Labor Relations Act as
amended . I am sending a copy of this letter to Insulation
Specialties Corp. so that they may be informed that
Local 5 has no objection to the Company employing you.
Attorney Geffner testified that he sent this letter, "in order
to cut off any back pay liability subsequent to December 24,
1968-in the event that the final decision of the Labor Board
was sustained in General Counsel's position-that Local 5
had unlawfully caused Mr. Patkus to be discharged from
Insulation Specialties Corporation. There was no intent, no
purpose to grant a permanent waiver of the union security
clause to Mr . Patkus nor to exempt him from the union
security procedures of the contract."
Patkus testified that when he received this letter in Indiana,
about December 26, that he "couldn't hardly afford to come
back to San Diego" at that time. However, he did return to
San Diego in May 1970 . He saw Grossi, owner of Insulation
Specialties, Inc., on May 12, and asked him if he could return
to work at his former job. Grossi informed Patkus that he
would like to reemploy him but he could not hire him unless
and until he was cleared by the Union. Thereupon, Grossi
wrote a letter dated May 12 to the Union and gave it to
Patkus which stated that, "If Local 5 sees fit to place Steve
Patkus on the permanent out-of-work list, we shall employ
him immediately."
Patkus then went to Los Angeles on May 13, where the
Union's offices and hiring hall are located and spoke to Ed-
ward B. Smith, business manager for Local 5 of the Respond-
ent Asbestos Workers Union, who has charge of both the
out-of-work list and the operation of the hiring hall. Patkus,
who has permanent journeyman status, requested Smith to
register his name on the Union's out-of-work list. Smith
refused and told him the Union had been advised by its
attorney that it was not required to place Patkus' name on the
out-of-work list nor to refer him to a job.
Smith , the union official , testified that Patkus held perma-
nent journeyman status in the Union which entitled him to
be dispatched to a job prior to a temporary journeyman asbes-
tos worker and that any qualified asbestos worker is eligible
for registration on the out-of-work list.' Smith stated that he
did not' allow Patkus to register on May 13, because "the
Union, over an extended period of time ... attempted to per-
suade Mr. Patkus to join. And he constantly failed to do this.
Therefore, my understanding of the agreement was that he
was not eligible to go on our out-of-work list...... Smith
testified that from May 1969 through May 13, 1970, Patkus
never offered to sign an application to become a member of
the Union. He concluded by testifying that Patkus was clas-
sified by the Union as of May 13, 1970, as a permanent
employee and , if he had such status, , as he "presumed", he
had, and his name was on the out-of-work list and he had
worked for Grossi within the past 3 years, that Patkus would
be eligible for both employment and referral to Insulation
Specialties Corporation.
' A permanent journeyman is one who has worked at least 6,000 hours
within 4 years in the Union's geographical area
When Patkus returned to San Diego and informed Grossi
of what had occurred at the union offices in Los Angeles, it
was arranged for Patkus to join the Carpenters Union, which
he did, and Gross then hired him as a carpenter, in which
capacity he has been employed since July 1970.
To recapitulate, Patkus was discharged on August 23,
1968, from his job at Insulation Specialties at the insistence
of the Union. On approximately May 12, 1970, Patkus con-
tacted Grossi, owner of Insulation Specialties, and requested
reemployment, whereupon Grossi requested the Union to
refer Patkus to him. Patkus has neither tendered dues and/or
initiation fees nor has he requested to join the Union since his
discharge by Grossi, which was at the insistence of the Union,
in August 1968. The current collective-bargaining agreement
between Respondent Union and the Southern California
Chapter of the Associated Insulation Contractors of the
Western States, to which Insulation Specialties is a signatory,
was executed on August 1, 1969, and expires on July 31,
1972,1 and which requires workmen to loin the Union within
8 days. -
B. Discussion and Conclusions
Section 8(a)(3) of the Act forbids an employer "to encour-
age or discourage membership in any labor organization" by
discrimination in regard "to hire or tenure of employment."
Section 8(b)(2) prohibits a union from causing an employer
to violate Section 8(a)(3). Both the employer and the Union
violate these prohibitions if they maintain and enforce an
exclusive hiring agreement or arrangement which makes
union membership a prerequisite'to employment. The proviso
to Section 8(a)(3) does permit under certain circumstances
the inclusion in a contract of a provision requiring union
membership as a condition of continued employment. More-
over, an unfair labor practice can be found from a procedure
which shows a practice or understanding though it may not
establish an express contract between the parties. The above
sections of the Act are also violated if, absent or exclusive
hiring hall arrangement , a union causes an employee's dis-
charge because the employee has failed to obtain the union's
approval or clearance prior to being hired. Such discrimina-
tory hiring practices, of course, also constitute restraint and
coercion of employees which is prohibited by Section 8(a)(1)
and 8(b)(1)(A) of the Acts
The significance of the fact that Patkus was discharged
under the Union's collective-bargaining agreement and was
refused referral under a subsequent contract must be evalu-
ated in the light of the National Lead Company case, infra.
In that case, dealing with the discharge of employees who had
been continuously employed during successive contract
terms, the Board held:
The union security agreement in the second contract
was, essentially, a mere renewal of the provision in the
first one. Moreover, there was no time lapse between the
terms of the two successive agreements . With regard to
union security, therefore, there was unmarred continuity
from September 1951, to the time of their discharge. To
this extent, at least, the second contract was, in effect, a
continuation of the previous contract, rather than a com-
pletely, new bargaining agreement. To find that these
employees are relieved from the payment of dues owing
at the conclusion of,the first in a series of uninterrupted
4 The provisions pertinent to the resolution of the issues herein will be
found in art VII, Secs. 1 and 2 of the agreement . G. C. Exh. 4. The prior
contract, which expired on July 31, 1969, also contained a union-security
provision.
' N.L.R.B. v. International Brotherhood of Electrical Workers, Local
340, AFL-CIO, 310 F.2d 824 (C A 9)
ASBESTOS WORKERS , LOCAL 5
contract terms would, we believe, place undue emphasis
upon the form of the contractual arrangement.'
In Standard Brands Co., 97 NLRB 737, the Trial Exam-
iner found that an employee discharged for failure to pay dues
under a union-security contract could be prevented by the
union from obtaining reemployment at least during the term
of the existing union-shop contract. The Trial Examiner rea-
soned that unless the employer could legally refuse to rehire
the dischargee during the contract term, or some other rea-
sonable period, the union-shop provision of Section 8(a)(3)
would be nullified. Moreover, held the Trial Examiner, allow-
ing an employee, who had been properly discharged under
valid union-shop contract provisions, immediately to apply
for rehire would be tantamount to providing him with a "free
ride." The Board, in affirming the Trial Examiner, found it
unnecessary to decide the question because it viewed the
discharged employees' application as a request for reconsider-
ation of the discharges rather than applications for new em-
ployment. The Board stated:
[It is unnecessary to] ... consider or adopt the Trial
Examiner's finding that an employer is privileged to
refuse to consider union shop dischargees for new em-
ployment until the end of the current contract ... Re-
gardless of the precise language used by the applicants,
their requests for work followed so soon upon the heels
of the discharges, and were so closely related to the
turmoil resulting from those discharges, that we cannot
view them as applications for new employment. They
were more in the nature of requests for reconsideration
of the antecedent discharges. The Respondent Company
was under no obligation, at such time, to consider these
requests on the same footing as those of entirely new
applicants.'
The Board's holding in Standard Brands was that the dis-
charged employees were not entitled to reconsideration of
their discharges.
The Trial Examiner's conclusion in Standard Brands was
submitted to the Board in Argonne National Laboratory, 123
NLRB 375, in somewhat different form. That case dealt with
a representation question in that a contract was alleged to be
a bar to an election. The collective-bargaining agreement
contained the following the union-security clause: "Any
guard terminated for failure to join the Union should not be
rehired as a guard during the life of this contract." Failure
to join the union was defined in the contract to mean failure
to tender periodic dues uniformly required after a 30-day
grace period. The Board found that the contract violated the
Act, as such a provision could be construed as encouraging
union membership in violation of Section 8(a)(3) of the Act,
and was, therefore, no bar to the representation proceeding.
The Board stated:
Under the terms of the Act, the provision in question
appears discriminatory against any guard once dis-
charged for failing to comply with the Union-shop
clause, in that he may not be hired as a new employee
during the entire balance of the term of the contract even
though he is later willing to fulfill any Union-security
requirement.
In District Lodge 94, International Association of Machin-
ists, 126 NLRB 1265, the Board held that a contract term was
valid that granted the union the right to prevent an em-
ployee's (who had been discharged for failure to pay dues)
reinstatement until the employee paid delinquent dues which
he was obligated to pay under the contract. However, the
' National Lead Company, 106 NLRB 545 at 548.
' Standard Brands, Inc , 97 NLRB 737 at 741
225
union's refusal to accept tender of the dischargee's delinquent
obligations and consequent rejection of the employee's ap-
plication for employment violated Section 8(b)(1)(a) and (2)
of the Act. The Board specifically distinguished Standard
Brands, supra, on the grounds that it applied only to situa-
tions where the application should be treated as a request for
reconsideration of the discharge.
In Mayfair Coat & Suit Co., 140 NLRB 1333, the Board
held that the employee was not entitled to an additional
30-day grace period after being discharged for failure to pay
dues during the life of the contract, and there the union could
condition his referral on the payment of an initiation fee.
In Yellow Cab Co., 148 NLRB 620, the Board held that an
employee who had quit without seeking a withdrawal card
from the union was entitled to a 30-day grace period as a new
employee when he returned to the same job with the same
employer 8 months later.
In Pressed Steel Car Co., 89 NLRB 279, an employee who
had been in layoff status was found to have been validly
discharged for failure to pay dues during the layoff period.
A synthesis of the holdings in the above cases reveals the
Board has consistently stated that the initial question to be
determined is whether the employee is applying for new em-
ployment or for reconsideration of his discharge. If it is found
that an application is merely a request for reconsideration,
the holding in Standard Brands would apply and a union
could prevent an employee's reinstatement. If, on the other
hand, it is considered an application for new employment,
Standard Brands would not apply. The salient question, then,
is not whether an applicant is entitled to new employment,
but to what extent the union may condition his reemploy-
ment. District Lodge 94, International Association of Machin-
ists, and Mayfair Coat & Suit Co., supra, are directly in point.
Both these cases indicate that the union may condition reem-
ployment on the payment of dues or initiation fees owing
from a previous period of employment under the contract.
Whether this may be extended to include dues owing from
employment during a previous contract period might depend
on an interpretation of National Lead Company, supra. That
case could be limited to situations where the employee had
been continuously employed during successive contract peri-
ods, wherein the second contract was a mere renewal of the
first, or it could be interpreted to extend regardless of the
continuity of employee status to situations where continuous
contracts were maintained.
Assuming that the discharge for failure to pay dues or
initiation fees and the application for new employment occurs
during the same contract period, it would appear under the
holding in Mayfair Coat & Suit Co., supra, that the employee
is not entitled to a statutory grace period in which to apply.
This is consistent with the holding in Yellow Cab, supra,
where an employee who quit was entitled to a 30-day grace
period. It would seem to follow, therefore, that an employee
who quits while owing no dues to the union will owe nothing
at the time he requests reemployment. By quitting, he termi-
nates his employee status and therefore is under no legal
obligation under the union-security collective-bargaining
agreement. However, it would appear that the employee who
fails to pay dues during a layoff period is obligated to pay dues
during that period because his employee status is maintained.
Therefore, if an employee has a past obligation from a period
in which he maintained his employee status to pay dues, it
might be argued by hypothesis that the payment of such
obligation should be a condition of new employment and also
deprive him of the right to the statutory grace period.
Under the circumstances in this case, however, the Union
made it clear to Patkus when he came to the union offices on
May 13 that they would not refer him to Insulation Special-
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties Corporation , thus barring him from employment in a
trade for which he is not only skilled , but qualified , as evi-
denced by his permanent status. Certainly , the facts in this
case cannot be equated with a Congressional intention to
deprive employees who fail to acquire union membership the
opportunity to work at their trade . Moreover, it is not too
unreasonable an inference to conclude that the Union would
not have referred Patkus, even though he would have ten-
dered his initiation fee and dues , in the light of its attorney's
advice that Patkus had no referral rights. Furthermore, his
obligation to pay or to tender dues and initiation fee ter-
minated on July 31 , 1969 , with the expiration of the first
contract . Accordingly , he was not under any legal obligation
to tender his dues and initiation . Moreover, the law does not
require one to perform a futile act, as here, where it is reason-
able to assume the Union would not have referred Patkus
even though he were to have tendered the initiation fee.
If Patkus had requested a referral immediately after his
1968 discharge , it could have been treated as a request for
reconsideration under Standard Brands, supra, which holds
that failure to pay dues under a union-security provision bars
an employee from obtaining employment during the term of
the existing contract. In the instant case, however , Patkus'
request for referral was made 21 months subsequent to his
discharge and at a time when a new contract had been ex-
ecuted, thus giving Patkus the status of a new employee-
legally entitled to unconditional referral by the Respondent.'
The Board, in Aerojet General Corporation, 186 NLRB No 77, held
that a union seeking to enforce a union security provision against an em-
ployee has a "fiduciary" duty to "deal fairly" with the employee affected.
The Board quoted language stating that "At a minimum this duty requires
that the union inform the employee of his obligation in order that the
employee may take whatever action is necessary to protect his job tenure."
Consequently, by its refusal to register Patkus on its out-of-
work list and refer him to Insulation Specialties , Respondent
Union discriminated against Patkus , thereby violating Sec-
tion 8(b)(1)(a} and 8(b)(2) of the Act.
CONCLUSIONS OF LAW
1. Respondent committed unfair labor practices within the
meaning of Sections 8(b)(1)(A) and 8(b)(2) and 2(2), (6), and
(7) of the Act when it discriminatorily and for proscribed
reasons refused Steven Patkus a referral on May 13, 1970, to
Insulation Specialties Corporation.
THE REMEDY9
It has been found that the Respondent violated the Act. It
shall be recommended, therefore , that it cease and desist
therefrom and take certain affirmative action in order to effec-
tuate the policies of the Act. It also shall be recommended
that Respondent be ordered to pay Steven Patkus for any loss
of pay suffered as a result of the coercion , restraint, and
discrimination against him in accordance with the Woolworth
and Isis cases" and to post appropriate notices.
[Recommended Order omitted from publication.]
In the Aerojet case, the Board held that Respondent Union failed to fulfill
its fiduciary duty to notify an employee of his obligation to join the Union
and therefore unlawfully caused his discharge.
' See Skouras Theatres (Local 642, Stagehands and Moving Picture Oper-
ators), 155 NLRB 157 at 158 , fn. 2, where the Board ordered the union to
keep permanent records of its hiring and referral operations in order to
disclose the basis on which each referral is made.
10 F. W. Woolworth Co., 90 NLRB 289: Isis Plumbing & Heating Co., 138
NLRB 716.