Automobile Workers, Local Union No. 1756

National Labor Relations Board - Board Decisions

Jan 26, 1979

240 N.L.R.B. 281 (N.L.R.B. 1979)

AUTOMOBILE WORKERS, LOCAL UNION NO. 1756 281
Local Union No. 1756, United Automobile, Aerospace
and Agricultural Implement Workers of America,
UAW (American Hoechst Corporation) and Lloyd
Slacum. Case 4-CB-3280
January 26, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRIUESDALE
On October 3, 1978, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief.
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, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
In affirming the Administrative Law Judge's finding of violations of Sec.
8(bXIXA) and (2) we rely solely on the first two reasons set forth in the
Administrative Law Judge's Decision. We do not rely on and find it unnec-
essary to pass on the Administrative Law Judge's alternative rationale that.
even in the absence of a nonuniform application of fees or discnminatorN
motivation, Respondent violated Sec. 8(bXl)(A and (2) by demanding
upon threat of discharge the payment of "initiation or readmission fees"
from employees wishing to become financial core members who had re-
signed from the Union during a strike and who subsequently came under
the provisions of the union-securty provisions of the new contract. Accord-
ingly. we shall modify the Administrative Law Judge's recommended Order
and notice to reflect our basis for finding the violations.
Respondent excepts to the Administrative Law Judge's finding of nonuni-
form application of fees and discriminatory motivation which relied in part
on an October 18, 1977, letter sent to certain employees by Respondent
which threatened them with discharge if they did not pay a 300 reinstate-
ment fee. Respondent contends that the General Counsel at the hearing
stated that there was no allegation that the S300 fee was excessive in any
manner. The complaint alleges that Respondent. by letters dated on or
about October 18, 1977. and January 4. 1978, threatened certain individuals
with discharge if they did not pay a readmission fee to Respondent. Respon-
dent did not object to the introduction of the October 18, 1977, letter into
evidence. In addition, Respondent made no offer of proof and its exceptions
and briefs do not particularize the evidence which it would have adduced in
order to rebut the October 1977 letter. Therefore, we conclude that the letter
dated October 18, 1977, constituted evidence properly before the Adminis-
trative Law Judge and the Administrative Law Judge did not err in relying
on this evidence for certain of his findings.
240 NLRB No. 13
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Local
Union No. 1756, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW,
Delaware City, Delaware, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph (a):
"(a) Imposing initiation or readmission fees in a
discriminatory, retaliatory, or nonuniform fashion
upon employees who resign from union membership
but who continue to tender dues as required by a
valid union-security agreement."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence in support of their respective
positions, it has been found that we violated the Na-
tional Labor Relations Act and we have been or-
dered to post this notice and to carry out its provi-
sions.
WE WILL NOT impose initiation or readmission
fees in a discriminatory, retaliatory, or nonuni-
form fashion upon employees who resign from
union membership but who continue to tender
dues as required by a valid union-security agree-
ment.
WE WILL NOT threaten employees with dis-
charge unless they pay such fees.
WE WILL NOT cause or attempt to cause Ameri-
can Hoechst Corporation, or any other em-
ployer, to discharge, transfer, or otherwise dis-
criminate against any employee because he or
she fails or refuses to pay such fees.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of their right to
engage in concerted or union activities, or to re-
frain therefrom.
WE WILL rescind the initiation or readmission
fees which were imposed on Laura Rafine. John
P. Nye, Richard Wix, Roland Phillips, William
Brennan, Lloyd Slacum, Thomas Timmons,
William Timmons, Harold Wall, Robert Stump,
Mark Willey, and Phillip Shores.
WE WILL notify American Hoechst Company
in writing that we are withdrawing our request
that the above-named employees be discharged
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or transferred because they failed or refused to
pay such fees.
LOCAL UNION No. 1756, UNITED AUTOMO-
BILE, AEROSPACE AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, UAW
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: This case was
heard at Wilmington, Delaware, on June 12, 1978. The
charge was filed on October 31, 1977, by Lloyd Slacum, an
individual. The complaint, which issued on January 26,
1978, and was amended at the hearing, alleges that Local
Union No. 1756, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW (herein
called the Union or Respondent), violated Section
8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended. The gravamen of the complaint is that the Union
threatened certain employees with discharge unless they
rejoined the Union and paid a readmission fee and at-
tempted to cause American Hoechst Corporation (herein
called the Company), to terminate them because they re-
fused to rejoin the Union and pay a readmission fee. The
Union's answer denies the commission of the alleged un-
fair labor practices. All parties were afforded full opportu-
nity to participate, to present relevant evidence, to argue
orally, and to file briefs.
Upon the entire record in this case, and having consid-
ered the arguments of counsel and the briefs submitted by
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER INVOLVED
The Company, a Delaware corporation, is engaged in
the manufacture of rigid P.V.C. polyvinyl chloride film at
its Delaware City, Delaware, plant, which is the only facil-
ity involved in this case. The Company annually ships
goods valued in excess of $50,000 from said plant directly
to firms located outside the State of Delaware. I find that
the Company was at all times material an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE RESPONDENT LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The material operative facts are undisputed and were
submitted in evidence through the pleadings and by stipu-
lation or admission of the parties. At all times material, the
Union was and is the Board-certified collective-bargaining
representative of the Company's production and mainte-
nance employees (with exclusions not here relevant) at the
Delaware City plant. The employees were covered by a
3-year collective-bargaining contract which expired by its
terms on July 1, 1977,' and which contained a valid union-
security clause and provision for employer checkoff of "the
standard initiation fee and the standard monthly dues uni-
formly levied in accordance with the constitution and by-
laws of the Union"; i.e., of the Union and its parent Inter-
national. Upon the expiration of the contract, the employ-
ees engaged in a strike which lasted until September 15,
when the Company and the Union executed a new 3-year
contract. The striking employees returned to work on Sep-
tember 19. The Union did not require its members to pay
dues during the strike, and in fact they did not pay dues
during this period. During the period from August 30
through September 11, 12 employees resigned from the
Union and returned to work. It is undisputed that the em-
ployees effectuated their resignations in a proper and time-
ly manner. Eleven other employees returned to work dur-
ing the strike but did not resign from the Union.
The new contract, which by its terms was effective from
July 2, 1977, to July 1, 1980, contained union-security and
checkoff provisions which were identical to those in the
expired contract. The union-security clause provided in full
as follows:
Il. UNION SECURITY
6. Requirement of Union Membership
(a) Employees covered by this Agreement at the
time it becomes effective and who are members of the
Union at the time shall be required as a condition of
continued employment, to continue membership in
the Union for the duration of this Agreement. Em-
ployees covered by this Agreement who are not mem-
bers of the Union at the time this Agreement becomes
effective shall as a requirement become members of
the Union within Thirty (30) days following such ef-
fective date of this Agreement.
(b) Employees hired, rehired, reinstated, or trans-
ferred into the bargaining unit after the effective date
of this Agreement and covered by this Agreement
shall be required as a condition of continued employ-
ment to become members of the Union on or within
Thirty (30) days. An employee who shall tender the
initiation fee (if not already a member) and the pe-
riodic dues uniformly required (by the UAW Consti-
tution) as a condition of acquiring or retaining mem-
bership shall be deemed to meet this condition. New
employees shall be notified at the time of hiring of the
requirement by the Company.
The constitution of the Union's parent International
(herein called International), provides in pertinent part as
follows:
IAll dates herein are in 1977 unless otherwise indicated.
AUTOMOBILE WORKERS, LOCAL UNION NO. 1756 283
ARTICLE 16
Initiation Fees and Dues
Section 1. (a) The initiation fee, no part of which
shall be considered as a Local Union fine, shall not be
less than Ten Dollars ($10.00) nor more than Twenty
Dollars ($20.00) for membership in a Local Union of
the International Union. Five Dollars ($5.00) of such
an initiation fee shall be set aside in a new member
orientation fund, to be expended with the approval of
the Regional Director.
(b) A Local Union may increase its initiation fee,
within the limitations set forth in paragraph (a) of this
Section, in accordance with the procedures of Article
47, Section 1.
Section 8. Any member who has not paid his dues
during the calendar month in which they are due shall
automatically become delinquent except as otherwise
provided in this Article. In order to regain good stand-
ing membership, he must fully reinstate himself in ac-
cordance with Section 9 of this Article.
Section 9. The reinstatement fee established by a
Local Union shall be not less than the regular initia-
tion fee charged by the Local Union, plus the dues for
each month of delinquency in dues up to either the
date of his automatic suspension or the date of his
reinstatement, as the Local Union in its discretion
may determine, plus the current month's dues. Such
reinstatement fee shall be uniformly applied to all de-
linquent members of the Local Union. Individuals
suspended as a result of their failure to pay dues while
employed in a shop under the jurisdiction of another
Local Union shall be dealt with in conformity with
Article 17, Section 3.
standing of one local may establish membership in another
local either by timely deposit of an honorable withdrawal
transfer card, or by paying an initiation fee and dues to the
other local. The International's constitution makes no pro-
vision for a reinstatement fee except as indicated above in
Article 16, Sections 8 and 9, for members who are delin-
quent in payment of dues. The Union's constitution was
also presented in evidence. Again, no bylaws, as such, were
offered in evidence, although, by stipulation of the parties,
the exhibits in question were identified as the "constitution
and by-laws" of International and the Union respectively,
and therefore must be presumed to be complete in this
regard. The Union's constitution contains no provisions
concerning initiation fees, reinstatement fees, or dues. No
evidence was presented as to what if any such fees were
charged by the Union prior to the events which gave rise to
this case.
Early in October, the first full month after the strike
ended, the Company tendered to the Union monthly dues
which had been checked off pursuant to employee check-
off authorizations, including dues for the 12 employees
who had resigned from union membership. It is undisputed
that the tender was timely, proper as to amount, and made
to the proper agent. It is also undisputed that by authoriz-
ing checkoff of dues, the 12 employees intended to meet
their financial obligations to the Union under the union-
security clause, without actually rejoining the Union. The
Union rejected the tender for the 12 employees. On Octo-
ber 18, Union President James Hardman sent a letter to
each of the 12 employees, the text of which was as follows:
TO NON UNION EMPLOYEES:
Since it is a requirement of continued employment
to join this local union (UAW Local 1756) the follow-
ing conditions must be met.
1. Signing of a union membership application card.
2. Payment of a reinstatement fee, which according
to our local union By-laws is a maximum of 500.00
dollars. But due to the circumstances surrounding
your resigning from this local union the fee shall be set
at $300.00* dollars.
3. Approval of membership by the body at a regu-
lar scheduled membership meeting.
Your committeeman will have application cards on
October 20, 1977.
* Arrangements will be made for deductions accord-
ing to individual needs.
Paragraph 2 of the letter was false in two respects. The
Union had no bylaw governing the amount of any rein-
statement fee, and the Union had taken no action, either
generally or with respect to the 12 employees, to set an
initiation fee, unless Hardman's letter be deemed as consti-
tuting such action. There was some discussion of a $300 fee
at a union meeting, and the matter was to be taken up at
another meeting, but this was never done. On October 19
or 20, possibly before the employees had even received his
letter, Hardman requested the Company's director of labor
relations to discharge the 12 nonmembers because they did
not pay a $300 reinstatement fee and did not sign new
deduction authorizations. The Company did not act on the
* * *
ARTICLE 47
Local Union Dues
Section . A Local Union or unit of an Amalgamat-
ed Local Union may establish membership dues in an
amount exceeding the minimum prescribed by Article
16, Section 2, or, if the dues exceed the minimum pre-
scribed by Article 16, Section 2, may decrease mem-
bership dues to an amount not less than said mini-
mum. Such action by a Local Union or unit of an
Amalgamated Local Union shall require ratification
by a majority vote of the votes cast by secret ballot at
a Local Union or unit meeting, due notice of the in-
tended action of which has been given to the member-
ship at least seven (7) days prior to the date of said
meeting and shall be subject to the approval of the
Regional Director whose approval must be obtained
before such dues are changed.
None of the International's bylaws, as such, were presented
in evidence. Article 17, Section 3, referred to in Article 16,
Section 8 above, provides in sum that a member in good
* *
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's request, and it has not taken any action against the
employees since that time. On October 24, Hardman filed a
written grievance with the Company, alleging that the non-
members should either pay a "reinitiation fee" of $300 or
be placed in "non-union" jobs. No action has been taken
on this grievance. On November 8, the Company informed
the Union by letter that in view of the Union's refusal to
accept tender of dues, the Company would cease checking
off dues for the 12 employees. The employees have contin-
ued to tender dues to the Union each month.
On January 4, 1978, Union President Hardman sent a
second letter to each of the 12 nonmembers. As the letter is
significant in several respects, I am here quoting the text in
full:
Dear Sir:
As you are aware, this Local Union recently con-
ducted a lengthy strike against American Hoechst
Corp, Film Division. We were able to conclude this
strike in a successful fashion and obtain for our mem-
bers wage increases and benefits to which they are
entitled.
Unfortunately, during this strike you saw fit to re-
sign from this Local Union. You sent to us a letter
stating your desire to resign from membership and
you then returned to work despite the fact that your
fellow employees were on strike. We consider that
your action was actually a "stab in the back" to your
fellow employees who struggled so hard to achieve
benefits which you are now enjoying.
Under date of October 18, 1977, I wrote to you ad-
vising of the requirement that you execute a union
membership card and pay an initiation or readmission
fee to this Union. Our collective bargaining agreement
with the Film Division of American Hoechst Corp
contains a legal and valid union security clause requir-
ing you to become and remain a member of the Union
and to pay the uniform initiation fee and periodic
dues as a condition of continued employment.
I have been advised that the initiation or readmis-
sion fee referred to raises a question of propriety un-
der the provisions of the Constitution of the Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW).
Accordingly, you will not be required to pay the initia-
tion fee or readmission fee referred to in my letter.
You will be compelled to pay to this Union the initi-
ation or readmission fee uniformly charged to all new
members and the periodic monthly dues which are
payable by all members. The initiation or readmission
fee is in the amount of $20.00, and the monthly dues
are in the amount of two hours pay per month. This
obligation is effective as to you on and after the 30th
day following the execution of the collective bargain-
ing agreement following the strike, and is effective for
the month of October, 1977. To the extent that you
have already paid these amounts, you may disregard
this communication. However, I want to advise you
that you will be required to pay periodic monthly dues
to this Union, either by checkoff from your wages or
by payment directly to the Union. Your failure to
maintain and continue with this obligation may re-
quire the Union to request your discharge under and
pursuant to the Union security provisions of the col-
lective bargaining agreement.
I trust that this makes clear the Union's position in
regard to your financial obligations. If you have any
questions, please communicate with me.
It was stipulated that there has been no communication
between the Union and International concerning the sub-
ject matter of this case. It was further stipulated that the
matter was not taken up at any regular or special member-
ship meeting or any regular or special executive meeting,
except as heretofore indicated. Therefore, the inference is
warranted that Hardman acted on his own authority as an
agent of the Union in sending the October 18 and January
4 letters, albeit, as suggested with respect to the January 4
letter, possibly after receiving advice from union counsel.
During the first 4 months of 1978, 6 of the 12 employees
tendered to the Union checks in the amount of $20, as
demanded in the January 4 letter. However, the Union has
declined to cash the checks pending disposition of this
case. As of the date of this hearing, the Union had not
taken any adverse action against the II employees who
abandoned the strike but did not resign from union mem-
bership. However, internal charges were filed against them,
and those charges are awaiting action by the Union.
B. Analysis and Concluding Findings
Section 8(b)(l)(A) and (2) of the Act makes it an unfair
labor practice for a union or its agents:
(I) to restrain or coerce (A) employees in the exer-
cise of the rights guaranteed in Section 7: Provided,
That this paragraph shall not impair the right of a
labor organization to prescribe its own rules with re-
spect to the acquisition or retention of membership
therein ....
(2) to cause or attempt to cause an employer to dis-
criminate against an employee in violation of subsec-
tion (a)(3) or to discriminate against an employee with
respect to whom membership in such organization has
been denied or terminated on some ground other than
his failure to tender the periodic dues and the initia-
tion fees uniformly required as a condition of acquir-
ing or retaining membership ....
Section 8(a)(3) of the Act provides in pertinent part that it
shall be an unfair labor practice for an employer:
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment
to encourage or discourage membership in any labor
organization: Provided, That nothing in this Act, or in
any other statute of the United States, shall preclude
an employer from making an agreement with a [law-
fully recognized] labor organization . . . to require as
a condition of employment membership therein on or
after the thirtieth day following the beginning of such
employment or the effective date of such agreement,
whichever is the later, (i) if such labor organization is
the representative of the employees as provided in sec-
AUTOMOBILE WORKERS, LOCAL UNION NO. 1756 285
tion 9(a), in the appropriate collective-bargaining unit
covered by such agreement when made . . Provided
further, That no employer shall justify any discrimina-
tion against an employee for nonmembership in a la-
bor organization (A) if he has reasonable grounds for
believing that such membership was not available to
the employee on the same terms and conditions gener-
ally applicable to other members, or (B) if he has rea-
sonable 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 ac-
quiring or retaining membership ....
In Union Starch & Refining Company, 87 NLRB 779,
783-784 (1949), enfd. 186 F.2d 1008 (7th Cir. 1951), cert.
denied 342 U.S. 815, the Board held:
As we read the statutory language, the provisos to
Section 8(a)(3) spell out two separate and distinct limi-
tations on the use of the type of union-security agree-
ments permitted by the Act. Proviso (A) protects from
discharge for nonmembership in the contracting union
any employee to whom membership is not available
for some discriminatory reason; i.e., any reason which
is not generally applicable. Proviso (B) protects em-
ployees who had tendered the requisite amount of
dues and initiation fees and been denied membership
for any other reason, even though that reason be nondis-
criminatory .... Thus, for example, it is clear that
proviso (B) requires a tender of dues and fees, whereas
proviso (A) protects any employee discriminatorily ex-
cluded from membership whether or not such tender
is made.
In N.L.R.B. v. General Motors Corp., 373 U.S. 734, 742
(1963), the Supreme Court, in agreement with the Board,
held:
Under the second proviso to § 8(a)(3), the burdens of
membership upon which employment may be condi-
tioned are expressly limited to payment of initiation
fees and monthly dues.... "Membership" as a con-
dition of employment is whittled down to its financial
core.
The Union contends, in essence, that the present case
presents a pure, almost abstract question of law as to
whether, under a valid union-security clause, a union may
require payment of membership initiation or reinstatement
fees by employees who resigned from membership during a
strike, when no collective-bargaining contract was in effect,
but who tendered dues at all times when a contract was in
effect. General Counsel in its brief takes a similar approach
to the case. I do not believe that the present case can be
adequately analyzed in this manner. Applying the fore-
going statutory provisions and principles of law to the facts
of this case, I find that the Union violated the Act, essen-
tially for three reasons, only one of which is addressed to
the legal issue posed by the Union.
First, the Union acted unlawfully because the "initiation
or reinstatement fee" which it sought to impose on the 12
nonmembers did not constitute "fees uniformly required as
a condition of acquiring or maintaining membership" as
required by the Act. The International's constitution au-
thorizes the local unions to establish initiation fees and
reinstatement fees of not more than $20 or less than $10.
However, such fees, like dues, must be established by the
local union in the manner described in Article 47, Section 1
of the constitution. Moreover, the constitution provides for
a "reinstatement fee" only in cases where a member has
lost his membership because of delinquency in dues. How-
ever, the 12 employees in question continued to tender
dues. In the present case, there is no evidence that as of
September 15, when the new contract was executed, the
Union maintained any specific initiation fee, let alone a
reinstatement fee. Rather, Union President Hardman's let-
ters of October 18 and January 4 indicated that the Union
simply was attempting to charge the employees whatever
amount the Union thought it could get away with. First,
Hardman arbitrarily set a fee of $300, falsely asserting that
he was authorized to do so under "our local union By-
laws." After the unfair labor practice charge was filed, and
Hardman availed himself of an opportunity to consult with
counsel, he arbitrarily set a different amount, consisting of
the maximum amount which he thought permissible under
the International's constitution. Indeed Hardman's repeat-
ed references to an "initiation or readmission fee" indicates
that he was not even sure which of these he was seeking to
impose. In sum, the Union was not seeking payment of a
"uniformly required" fee. Rather, Hardman threatened the
employees with discharge unless they tendered an exaction
in an amount arbitrarily set by him.
Second, the evidence adduced in this case indicates that
the Union's action against the 12 employees was discrimi-
natorily motivated. Hardman made clear to the employees,
in his January 4 letter, that the Union considered their
return to work during the strike as a "stab in the back."
Earlier, Hardman demanded their discharge without even
waiting to find out whether they were willing to pay the
$300 "fee," or whether they had even received notice of
their alleged obligation to pay such amount. That demand
was never withdrawn, although Hardman later told the em-
ployees that they were required to pay only a $20 fee.
hese facts, coupled with the arbitrary manner in which
Hardman levied these exactions, indicate that the $300 fee,
and the subsequent $20 fee, were in substance, albeit not in
form, fines levied against the 12 employees because they
exercised their statutory right to resign from the Union and
work behind a picket line. Therefore, the Union violated
Section 8(b)(1)(A) of the Act by imposing the fees, threat-
ening the employees with discharge, and demanding their
discharge or transfer, and further violated Section 8(b)(2)
by demanding their discharge or transfer. International As-
sociation of Machinists and Aerospace Workers, Merrit Gra-
ham Lodge No. 1871 (General Dynamics Corporation, Elec-
tric Boat Division), 231 NLRB 727 (1977), enfd. 575 F.2d 54
(2d Cir. 1978). As internal union charges are pending
against 11 employees who abandoned the strike without
resigning from union membership, the fact that no action
had been taken against them as of the date of this hearing
does not indicate the absence of a discriminatory motive.
Third, with respect to the issue posed by the Union, the
Union's conduct would have been unlawful even in the
absence of the foregoing considerations. It is true, as the
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Administrative Law Judge observed in Retail Clerks Inter-
national Association, and Retail Store Employees Local 322,
et al. (Roswil, Inc., d/b/a Ramey Supermarkets), 226 NLRB
80, 91 (1976), that the Board apparently has not passed on
this precise issue. In Retail Clerks, the Administrative Law
Judge, who was affirmed by the Board, found that the
Union therein did not violate the Act by requesting the
discharge of an employee who had resigned during a strike,
because the employee failed to pay a reinitiation fee. How-
ever, in Retail Clerks, unlike the present case the employee
had since the strike become delinquent in dues payments.
Under the Retail Clerks' union bylaws, any member who
became so delinquent would have been suspended, and
would have been required to pay a reinstatement fee. The
Judge reasoned that in these circumstances, "[tio excuse
[the employee] from paying the fee would only discrimi-
nate in his favor because he does not choose to become a
member of the Union." In sum, Retail Clerks sought to
impose the same financial obligation on the employee that
it could have lawfully imposed on any employee who chose
to retain his full membership. In the present case, the 12
employees who resigned from the Union were at no time
delinquent in dues payments. They stood in the same posi-
tion as those employees who retained full membership and
paid dues under the expired contract and under the new
contract, but with one exception; namely, that they exer-
cised their statutorily protected right to resign from union
membership and to meet only the "financial core" obliga-
tions of such membership. By requiring the 12 employees
to pay an initiation or reinstatement fee, the Union was in
effect penalizing the employees because they exercised
their rights under Section 7 of the Act. Such a result is
contrary to the Act.2
21 agree with General Counsel that in addition to Retail Clerks. upro, the
other cases principally relied upon by the Union are distinguishable on their
facts. In Metal Workers' Alliance. Incorporated (TR W Metals Division. TR W,
In.). 172 NLRB 815, 816 (1968), the Board held that the Union therein
could lawfully charge a reinstatement fee to employees who left the bargain-
ing unit to take supervisory or other salaried positions, and returned to the
unit at a later date. General Counsel correctly points out that in Metal
Workers, unlike the present case, there was a period of time during which
the employees did not pay dues, i.e., when the) worked outside of the unit,
and therefore the Union could properly require a reinstatement fee. More-
over, the Board found that the reinstatement fee for employees in this classi-
fication was based on "reasonable and nondiscriminatory" considerations
and was not motivated by a purpose to penalize the employees for not
having retained their membership when they were not legally obligated to
do so. The same cannot be said with respect to the present case. In Brewer)
Workers Union Local No. 102 International Brotherhood of Teamserr, Chauf
feurs, Warehousemen and Helpers of America, AFL-CIO (Anheuser-Busch.
Incorporated), 116 NLRB 178 (1956), and in Kuner-Empson Company, 106
NLRB 670 (1953). the Board held that a union could lawfully, require pay-
ment of an initiation fee as a prerequisite to membership under a lawful
union-security clause, notwithstanding that in each case the employee had
previously been expelled from membership on grounds of dual unionism:
i.e.. because of activities which would appear to be protected by Sec. 7 of
the Act. However, in each case the employee was seeking to rejoin the
Union as a full member. Therefore, under the proviso to Sec. 8(b)(1)(A) of
the Act, the Union was free to prescribe the rules governing the acquisition
or retention of such membership. However. in the present case, the 12 em-
ployees were seeking only to meet their financial core obligations. There-
fore, the present case cannot be decided solely oln the basis of the Union's
own rules, but on the basis of such rules insofar as they meet the Act's
definition of those financial obligations. Simmons Compatno. 150 NIRB 709
(1964), involved an employee who sought to meet financial core obligations
under an "agency shop" contract clause. The employee's membership had
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. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By imposing initiation or readmission fees upon Lau-
ra Rafine, John P. Nye, Richard Wix, Roland Phillips, Wil-
liam Brennan, Lloyd Slacum, Thomas Timmons, William
Timmons, Harold Wall, Robert Stump, Mark Willey, and
Phillip Shores, by threatening them with discharge unless
they paid such fees, and by attempting to cause the Com-
pany to terminate or transfer them because they failed or
refused to pay such fees, the Union has restrained and
coerced, and is restraining and coercing, employees in the
exercise of rights guaranteed in Section 7 of the Act, and
thereby did engage in, and is engaging in, unfair labor
practices within the meaning of Section 8(b)(l)(A) of the
Act.
4. By attempting to cause the Company to terminate or
transfer the above-named employees because they failed or
refused to pay the initiation or readmission fee demanded
by the Union, the Union did attempt to cause an employer
to discriminate against employees in violation of Section
8(a)(3) of the Act, and thereby did engage in, and is engag-
ing in, unfair labor practices within the meaning of Section
8(b)(2) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THF REMEDY
Having found that the Union violated Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that it be required to
cease and desist from such violations and take certain affir-
mative action designed to effectuate the policies of the Act.
I shall recommend that the Union be ordered to rescind
the initiation or readmission fee assessed against the
above-named employees, to rescind its request that they be
transferred or discharged, and to post appropriate notices.
As the present case involves serious 8(b)(2) discriminatory
conduct, I shall recommend that the Union be ordered to
cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act. International
Brotherhood of Electrical Workers, Local Union 379 (Fass-
bach Electric Co.), 230 NLRB 626, fn. 2 (1977).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
previously been suspended because of dues delinquency. The Board held
that the Union therein could require the employee to pay either hack dues
or a reinstatement fee, and in so doing relied essentially on the same ratio-
nale as that which was later followed by the Board in Retail Clerks, supra
See 150 NLRB at 712. As indicated, that rationale is not applicable to the
facts of the present case. Finally the parties have argued in their briefs as to
whether the facts of the present case are distinguishable from those in Inter-
national Association of Fire ighters. Local 1-25 (ITT Technical Service..
Inc.i Case 31 CB-2538, a General Counsel Advice Memorandum, at least
to the extent that those facts are reported in the memorandum (95 LRRM
1539 (1977) . As the memorandum represents the views of the General
Counsel. and is not Board law, it is not necessary for me to decide whether
the distinction drawn by General ounsel is a valid one.
AUTOMOBILE WORKERS, LOCAL UNION NO. 1756 287
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 3
Respondent Local Union No. 1756, United Automobile,
Aerospace and Agricultural Implement Workers of Amer-
ica, UAW, its officers, agents, and representatives, shall:
i. Cease and desist from:
(a) Imposing initiation or readmission fees upon em-
ployees who resign from union membership but who con-
tinue to tender dues as required by a valid union-security
agreement.
(b) Threatening employees with discharge unless they
pay such fees.
(c) Causing or attempting to cause American Hoechst
Corporation or any other employer to discharge, transfer,
or otherwise discriminate against any employee because he
or she fails or refuses to pay such fees.
(d) In any other manner restraining or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
3In the event no exceptions are filed as prosvided in Sec. 102.46 of the
Rules and Regulations of the National Lahor Relations Board, the findings
conclusions. and recommended Order herein shall, as provided in Sec. 1)2.48
of the Rules and Regulations, be adopted by the Board and become its findings
conclusions, and Order, and all objections thereto shall he deemed v aived for
all purposes.
(a) Rescind the initiation or readmission fees which
were imposed on Laura Rafine, John P. Nye, Richard Wix,
Roland Phillips, William Brennan, Lloyd Slacum, Thomas
Timmons, William Timmons. Harold Wall, Robert Stump,
Mark Willey, and Phillip Shores.
(b) Notify American Hoechst Company in writing that
the Union is withdrawing its request that the above-named
employees be discharged or transferred because they failed
or refused to pay such fees.
(c) Post at its business offices and meeting places and at
the Company's Delaware City plant. copies of the attached
notice marked "Appendix." Copies of said notice, on
forms provided by the Regional Director for Region 4, af-
ter being duly signed by Respondent's authorized represen-
tative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees or members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4 In the event that this Order is enforced b ajudgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
menl of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."