California Blowpipe & Steel Co., Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1975

218 N.L.R.B. 736 (N.L.R.B. 1975)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California Blowpipe & Steel Company , Inc. and Local
Union No. 749, - International Brotherhood" of
Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers, and Helpers of America, AFL-CIO. Case
20-CA-8902
June 20, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
KENNEDY AND PENELLO
On January 30, 1975, Administrative Law Judge
Jerrold It Shapiro issued the attached Decision in
this proceeding. Thereafter, the Charging Party and
counsel for the General Counsel filed exceptions and
supporting briefs. Respondent filed cross-exceptions
to the Administrative Law Judge's Decision and a
brief in support of its cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, California Blowpipe
& Steel Company, Inc., Escalon, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Under Sec. 102.48(dxl) of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, only newly discovered evidence,
evidence which has become available only since the close of the hearing, or
evidence which the Board believes should have been taken at the hearing
will be taken at any further hearing . The Board has considered Respon-
dent's motion to reopen the record in light of all of the above and finds no
merit in the motion . Accordingly, the motion is denied.
Respondent's request for oral argument is hereby denied as the record,
including the briefs, adequately presents the issues and position of the
parties.
DECISION
STATEMENT OF TM, CASE
JERROLD H. SHAPIRO , Administrative Law Judge: The
hearing in this case held on November 12 and 13, 1974, is
based upon unfair labor practice charges filed by the
above-named Union on January 23, 1974, and a complaint
issued on August 28, 1974, on behalf of the General
Counsel of the National Labor Relations Board, herein
called the Board, by the Regional Director of the Board,
Region 20, alleging that California Blowpipe & Steel
Company, Inc., herein called the Respondent, has engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the National Labor Relations Act, herein
called the Act. Respondent filed an answer denying, the
commission of the alleged unfair labor practices.
Upon the entire record,' from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
California Blowpipe & Steel Company, Inc., the Respon-
dent, is a California corporation with a place of business in
Escalon, California, where it is engaged in the fabrication
and erection of steel products. During the past year
Respondent sold and provided goods and services in excess
of $50,000 directly to customers located outside California
and purchased and received at its Escalon facility goods
and products valued in excess of $50,000 directly from
enterprises located outside California. Respondent admits
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, Local Union No. 749, International Brother-
hood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers of America, AFL-CIO, is admittedly
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Questions to be Decided
Respondent and the Union at all times material were
parties to a collective-bargaining contract which contained
1 The transcript of the record is corrected in accordance with General
Counsel's unopposed motion to correct it.
218 NLRB No. 117
CALIFORNIA BLOWPIPE & STEEL COMPANY, INC. 737
a lawful union-security agreement., This proceeding in-
volves the Union's effort to administer the union-security
agreement by requesting Respondent to supply certain
information and discharge employees. Respondent denies
it refused to supply .the information but admits it refused to
discharge the employees whom the Union claimed had not
complied with the terms of the union-security agreement.
There are two questions to be decided: (1) Whether
Respondent refused to supply the information requested
by the Union and, if so, whether its conduct constituted a
violation of Section 8(aX5) and (1) of the Act; and (2)
Whether Respondent's refusal to discharge employees who
had not complied with the union security agreement
constitutes a violation of Section 8(a)(5) and (1) of the Act.
B. Background
Respondent, a steel fabricator, operates a multiplant
facility in Escalon, California. At all times material the
Union was the bargaining representative for about 60 of
the employees employed in the main plant, plant number 1,
and for about 20, of the employees employed in plant
number 3. The Union and Respondent historically have
been parties to collective-bargaining contracts covering
these employees. The latest contract was effective from
May 21, 1971, to May 20, 1974, and contained a lawful
union-security agreement. In this regard, rule 2 of the latest
collective-bargaining contract, entitled "No Discrimination
and Hiring," provided in pertinent part:
(2)(B) All, employees, members of the Union on the
effective date of this agreement and all members
of the Union subsequently hired, shall remain
members in good standing of the Union, as a
condition of continued employment.
(t.") All other employees covered by this Agreement on
its effective date or subsequently hired, shall,
within the time required by the Union after the
30th day following the beginning of their employ-
ment, ' or the effective date of this Agreement,
whichever is the 'later, become and remain
members of the Union in good standing, as a
condition of continued employment.
(D) In the application of Paragraphs (B) and (C) above,
when the Employer is notified by the Union in
writing that an employee is delinquent in the
payment of Union dues, or, within the time
required by the, Union, has failed to make proper
application and pay the initiation fee required,
the Employer shall immediately terminate such
employee.
(E) The Employer shall inform each employee hired of
the requirements of Paragraphs (B) and (C)
above.
(F) The Employer shall, upon request, furnish the
Union by classification a complete list of all its
employees covered by this Agreement.
Within three (3) working days from the date of hire of
any employee, the Employer shall furnish the appropri-
ate local Union the date of hire, name, social security
number, address and classification of each such
employee on the form furnished by the Union.
Within three (3) working days from the date an
employee quits, is terminated, discharged or temporari-
ly laid off, the Employer shall furnish the appropriate
local union the date of termination or temporary layoff,
the name, social security number, address and classifi-
cation of each such employee, on the form furnished
the Employer by the Union.
The events relevant to the instant proceeding occurred
against the background of a prior Board case wherein the
Union was found to have engaged in certain unfair labor
practices. See Local Union No. 749, International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Hepers, AFL-CIO (California Blowpipe & Steel
Co., Inc.), 192 NLRB 502 (1971). As a result of the Board's
Decision and Order the Union elected to stop enforcing its
union-security agreement . In 1973 the Union decided to
resume enforcing the agreement but Respondent refused to
accede to the Union's request that employees who had
failed to comply with the agreement be terminated. At the
hearing conducted in the instant case Respondent claimed
that its refusal was based in part upon the Union's past
unfair labor practices which were unremedied. Under the
circumstances it is essential that the prior litigation be
described briefly.
The Board issued its Decision and Order in the Local
Union No. 749 case on August 4, 1971. It was a
consolidated proceeding based upon separate unfair labor
practice charges filed by Douglas Martin, an employee,
and the Sequoia Employers Council, Respondent's repre-
sentative in labor relation matters. The Board found the
Union threatened to seek and sought the discharge of
employees Douglas Martin, Jeffry Roberts, and Michael
Roberts, pursuant to the union-security agreement. All
three employees had tendered the initiation fees and other
financial obligations uniformly required by the Union, but
the Union admittedly refused to accept these financial
tenders and sought to have the employees terminated
because of their failure to sign union application forms, to
take an oath, or to sign beneficiary forms or additional
imposed prerequisites for the acquisition of membership.
Consistent with the position enunciated in Union Starch &
Refining Company, 87 NLRB 779 (1949), that a union may
not use dismissal from employment as a means of securing
compliance with membership prerequisites other than the
payment of dues and fees, the Board found that the
Union's conduct violated Section 8(b)(2) and (1)(A) of the
Act. Additionally, as a separate unfair labor practice, the
Board concluded that the reinstatement fee charged by the
Union to employees between December 16, 1968, and
December 29, 1969, the date on which the Union amended
its bylaws to reduce the fee, was excessive within the
meaning of Section 8(b)(5) of the Act, and that by
requiring dues delinquent members to pay such a fee the
Union had violated Section 8(b)(5) of the Act. The Board
further found that by attempting to cause the company to
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge employee Louis Daniel for his failure to pay this
reinstatement fee, the Union engaged in unfair labor
practices within the meaning of Section 8(b)(5), (2), and
(1)(A) of the Act.
The Board's Order required 'the Union' to cease and
desist from the unfair labor practices found, and from in
any like or related manner restraining or coercing the
Company's employees in the exercise of their rights
guaranteed by Section 7 of the Act. Affirmatively, the
Order required the Union to rescind the requests for the
termination of employees Douglas Martin, Jeffry Roberts,
and Michael Roberts, and notify these persons in writing
that it had rescinded the termination requests and that it
would not require them to perform any act or pay any
money as a condition of continued employment except an
initiation fee or- periodic dues, and to post appropriate
notices for 60 days which describe its obligation under the
Order. Regarding the unlawful excessive reinstatement fee
the Order required the Union to refund to each employee,
including William Haslam and Ernest Benge, who between
December 16, 1968, and December 29, 1969, was required
to pay a reinstatement fee, such as the Board found to have
been excessive, the sum of $100 and, pay to Louis Daniels
any sum he may have paid in excess of the dues required of
him to, maintain his membership in the Union as a
condition of employment.
In December 1971 the Union complied with the Board's
Order insofar as it pertained to the excessive reinstatement
fee. The Union contested the remainder of the Order
dealing with the Union Starch question and filed a petition
to review this portion of the Order with the Court of
Appeals for the District of Columbia. The court considered
the matter and, on June 30, 1972, enforced the Order in its
entirety. (466 F.2d 343.) The United States Supreme Court
denied the Union's petition for a writ of certiorari on
February 20, 1973. (410 U.S. 926.)
The Supreme Court's denial of the Union's writ of
certiorari did not come to the attention of the Board's
Regional Office's compliance officer for almost 1 year.
Thus, it was not until February 5, 1974, that the
compliance officer wrote a letter to the Union's attorney
seeking compliance with the part of the Board's Order
which had not already been complied with. The matter was
delayed' further because the Union had retained new
counsel. The Union thereafter took the necessary steps to
comply with the Order. Respondent's lawyer however
objected to the matter being closed, taking the position in
its letter of May 8, 1974, to the Board's Regional Office's
compliance 'officer that the Union on March 27, 1974, had
demanded the discharge of Michael Roberts, an employee
involved in the prior case, and that the Union was
presently demanding the discharge of 20 of the company's
employees and despite the Company's request, the Union
had failed to provide the Employer with "any information"
concerning the tender of moneys by these individuals.
Then, on May 29, 1974, by letter, Respondent's lawyer
notified the complaince officer that "it has come to the
company's attention that various employees for whom the
Union is demanding discharge have not been contacted by
the Union to provide uniformly required initiation fees or
dues. Rather, the Union is apparently maintaining the
position that a new employee must seek out the Union and
then pay the required fees," and that several of the
individuals whose discharge the Union sought "have never
been approached" by the Union about membership or the
tender of fees and dues. The letter closed with Respon-
dent's lawyer urging that "this case cannot be closed as
long as the union insists that the employees seek out the
Union as a condition of continued employment." The
Board's Regional Director over the protests of Respondent
closed the prior unfair labor practice case on May 31, 1974,
on which date he notified all parties he was satisfied that
the Board's Order had been fully complied with.
C. The Material Facts
The Administrative Law Judge, on January 28, 1971,
issued his Decision in the prior unfair labor practice case.
As a result, the Union, acting upon the advice of its
attorney, ceased to enforce the contractual union-security
agreement . For more than 2 years, until July 1974, the
Union did not compel newly hired employees to pay dues
or initiation fees as a condition of employment, nor did it
compel members in arrears to pay a reinstatement fee as a
condition of continued employment. The Union, however,
did accept voluntary payments of dues and fees from the
employees during this period.
In 1973 2 after the Supreme Court's denial of its petition
for a writ of certiorari, the Union decided to resume
administering and enforcing the contractual union-security
agreement. On July 19 the Union publicly announced its
intent to enforce the union-security agreement. It posted a
notice to this effect on the three bulletin boards located in
the main plant and on the bulletin board located in plant
3.3 Union Business Manager Ralph Runyan-also personal-
ly distributed "a few" of the notices to the employees the
same day. The notice read as follows:
TO ALL EMPLOYEES EMPLOYED UNDER THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN BOILERMAKERS
LOCAL UNION 749 AND CALIFORNIA BLOWPIPE & STEEL,
INC.
Rule 2 (B) and (C) of the Collective Bargaining
Agreement states:
"(B) All employees, members of the Union of the
effective date of this Agreement and all members
of the Union subsequently hired, shall remain
members in good standing of the Union, as a
condition of continued employment.
(C) All other employees covered by this Agree-
ment on its effective date, or subsequently hired,
shall, within the time required by the Union after
the thirtieth day following the beginning of their
employment, or the effective date of this Agree-
2 All dates herein , unless otherwise specified , refer to 1973. This is Respondent's only evidence on this question. Hogan, in general, did
8 There is a dispute whether the notice was posted at plant 3 . Walter not impress me as an honest witness. Runyan, who, testified that the notice
Hogan, the Respondent's president, testified he did not observe it there . was posted at plant 3, in my eyes was a credible ' witness.
CALIFORNIA BLOWPIPE & STEEL COMPANY, INC. 739
ment, whichever is the later , become and remain
members of the Union in good standing, as a
condition of continued employment."
In the fall of 1970, Rule 2 (B) and (C) of the Collective
Bargaining Agreement was challenged by the NLRB
on the right of the individual employee of California
Blowpipe & Steel Co., Inc . to make application and
become a member of this Local Union.
The case went to the highest court which resulted in
giving each employee the right to make application to
become a member of this Local Union or not to
become a member. This is all that was decided by the
courts.
You, as an employee can make this determination.
i1fowever, you are, as an employee of California Blowpipe
& Steel Co., Inc. still obligated to pay the amount of the
initiation Fee and Monthly Dues.
This is to officially inform you that we are now
requiring you to comply with this provision of the
Collective Bargaining Agreement, effective on this date
of July 19, 1973.
For your information the following is the amount of the
Initiation Fees and dues:
Initiation : Journeyman $200.00
[Initiation: ] Helper 150.00
Monthly Dues 9.25
For your convenience the Representative of the Local
Union will be at the Grange Ha14 Escalon, July 26,
1973, between the hours of 3:00 P.M. and 6:00 P.M.
Full or partial payment will be accepted at that time.
Respondent learned immediately of the Union's intent to
enforce the union-security agreement . On July 18 and 19
Business Manager Runyan spoke to Plant Manager Paul
Reichmuth about the matter, read and showed him a copy
of the notice and, in substance, informed Reichmuth that
there were about 50 employees who had not complied with
the union-security agreement and that the Union intended
to enforce the agreement against all the employees
uniformly. Reichmuth indicated that he opposed the
Union's course of action.
On about July 21 Runyan turned down Reichmuth's
invitation to attend a meeting that the company was
having with its employees about their obligation under the
union-security agreement . Respondent's President Hogan,
on either July 21 or July 22, did meet with all of the
bargaining unit employees employed at the main plant
and, Hogan also testified , he feels that he also met with the
bargaining unit employees employed at plant 3. Hogan
told the employees that the notices posted by the Union
were correct and the employees were obligated to pay dues
and fees to the Union but that the Company felt it was
unfair that the employees who had voluntarily paid dues
for the past 2 years, when the Union had not enforced the
union-security agreement , were now being treated in the
same fashion as the employees who had not paid their fees
and dues . Hogan declared that the company intended to
propose to the Union that it rescind the initiation fee for
the approximately 50 employees who were not members of
the Union ; that there be a 2-year moratorium on dues
payments for employees who had continued to pay their
dues during the past 2 years when the Union had not
enforced the union-security agreement ; and that in return
the company would grant a 5-cents-per -hour pay increase
to offset the employees ' dues payments and would offer a
voluntary dues checkoff plan.
On July 26 representatives from the Union , Runyan and
Holsman, met with Plant Manager Reichmuth at his office.
Reichmuth submitted the proposal described above that
Hogan had earlier announced to the employees . Reich-
muth, regarding the proposed 5-cent hourly wage increase,
explained that the employees would be able to pay their
dues and still not take a cut in their basic take-home pay.
He also informed _ the union representatives that the
Union's announced intent to enforce the union-security
agreement was unfair because the employees who had
continued to pay dues had carried the other employees
who had not paid dues. Reichmuth took the position that
the Company's offer of a recision of the initiation fee for
the approximately 50 employees not members of the
Union, a 2-year dues payment moratorium for the
employees who had continued to pay their dues, and a S-
cent ' hourly pay increase plus a voluntary dues checkoff
authorization should "clear up the whole matter." The
union representatives rejected the proposal stating that the
Union intended to implement the policy described in the
notice it had posted on July 19 and intended to treat all of
the employees in the same manner , and that the Compa-
ny's proposal was contrary to the collective-bargaining
agreement and the Union's bylaws . Reichmuth testified he
replied, "it is very difficult for us . It looks to me that we are
going to lose a lot of our employees on this basis . Can't we
work something out " The union representatives remained
adamant that the union -security agreement would be
administered as announced to the employees in the July 19
notices . The meeting concluded with Reichmuth stating,
"we will have to look at each case on an individual basis
because there is some problem with some of the people
being in dispute for a long time."
On July 26 as had been announced in the July 19 notice,
the Union held a meeting at the local Grange Hall which
was attended by about 30 employees . Business Manager
Runyan explained the ruling of the Board in the prior
unfair labor practice case and told the employees that the
Union intended to comply with the ruling . Runyan said the
Union wanted all of them to join the Union but that it was
the employees' decision and all they were obliged to do was
to tender initiation fees and dues , and that regardless of
their actual date of hire that July 19 would be considered
their date of hire for purposes of the union-security
agreement, and that 30 days from that date the employees
must make a downpayment of $50 on their initiation fee
with the remainder payable within 60 days . During the
course of the meeting there was a discussion about the pros
and cons of joining the Union or just tending the fees, with
Runyan explaining that nonmembers could not attend
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meetings or vote on the acceptance or rejection of a
collective-bargaining agreement.
On July 30 Plant Manager Reichmuth phoned Runyan
and asked if the Union had given further consideration to
the company's proposal presented by Reichmuth on July
26. Runyan, in substance, stated that the Union had not
changed its position.
On July 31 Reichmuth sent Runyan the following
message:
Per our discussion on July 26, 1973 and telephone
conversation on July 30, 1973 in which you stated that
the Union is emphatic in their position and that they
will not rescind the initiation fees for the 50 plus people
who are employees of California Blowpipe and are not
members of your Union. Also you are refusing to give a
two year moratorium on dues for people who have
continued to pay Union dues through this period of
time when you have not asked employees to pay the
initiation fees or dues. We stated to you that we would
consider a 50 per hour increase to all employees to
offset their dues payment and we also stated that we
would consider a voluntary check off plan.
You have completely refused to take any action on this
offer in behalf of the employees of California Blowpipe.
We feel the above offer was a fair offer to the Union
and to the employees and it would have enabled the
Union to start with a clean slate with all employees.
The company does not know what its legal position is
at this point and time but it intends to find out and
protect its employees from the negligent acts of the
Union. We demand an immediate meeting on this
matter.
The Union ignored Reichmuth's proposal and on August
6 its business manager, Runyan, sent the following request
for information to the president of Respondent, Hogan:
It has been quite some time since we have received any
hire and termination notices from your company; and,
in checking your March report to the Boilermaker-
Blacksmith National Pension Trust, we find that the
following are listed on your pension report, but we have
no record of their hire date or the other data that is
supplied with the hire and termination notices: [list of
45 names]
Would you please supply us with these hire and
termination notices and also the hire and termination
notices on any other men you have employed and
terminated since March 1973, in addition to the men
listed, in accordance with Rule 2(F) of the current
agreement.
In August Runyan, while speaking to Reichmuth of the
Union's intent to enforce the union-security agreement,
told him that the Union had no knowledge of the
employees employed by the Company and no way to
contact them and wanted a list of employees by job
classification with their addresses. Reichmuth, in reply,
asked what the collective-bargaining agreement provided.
Runyan replied that the agreement obligated the Company
to furnish the Union this information as well as the hire
dates of all employees .4
Respondent ignored Runyan's August 6 written request
for information. His August oral request to Reichmuth
fared no better. The result was that on August 29 the
Union posted another notice on the employees bulletin
boards at the company's main plant. The Union's business
manager, Runyan, and his assistant went to the plant and
secured permission from Plant Manager Reichmuth to post
a notice and handbill the employees. Thus, on August 29
the Union posted notices on the three bulletin boards at
the main plant and as the Union representatives walked
through the plant they personally handed out about 50 of
these notices to the employees. The notice advised the
employees that the Union had requested the company to
supply it with a list of employees and their addresses so the
Union could advise the employees personally about the
procedure to be followed in paying initiation or reinstate-
ment fees. The Company, the notice stated, had failed to
respond to this request for information which had forced
the Union to use the notice. The notice then quoted
verbatim the contractual union-security agreement, ex-
plained to the employees the method of paying their
initiation or reinstatement fees and the time limitation
involved, namely, such fees must be paid in full by October
19. Finally, the notice set out the Union's address and
phone number.
On September 5 Business Manager Runyan by letter to
President Hogan referred him to the Union's request of
August 6, enclosed a copy of this letter, and reminded
Hogan that Respondent had never answered or complied
with the request and once again requested all of the
information provided for in the hire and termination slips
as requested in the letter of August 6. This letter which was
sent by certified mail was returned to the office of the
Union by the U.S. Post' Office which indicated that
Respondent had been notified about the letter but had
chosen not to claim the letter.
On October 2 the Union still had not received a response
to its August 6 request for information so Business
Manager Runyan forwarded copies to Respondent of his
previous letters dated August 6 and September 5 and asked
President Hogan for an immediate response. This letter
was ignored by Respondent.
On October 24 Runyan by letter informed President
Hogan that Respondent had repeatedly refused to furnish
the Union with the information contained in the hire and
termination slips Respondent was obliged to furnish
pursuant to rule 2(F) of the collective-bargaining agree-
ment and that the Union was charging Respondent with a
violation of the agreement and was requesting a meeting
under the contractual grievance procedure. Upon receipt
of the Union's request for a grievance meeting over the
company's failure to supply the hire and termination slips
the Respondent's Plant Manager Reichmuth referred the
letter to the Company's representative in labor matters, the
4 The conversation in the text between Reichmuth and Runyan is based "recall" whether there was such a conversation . Runyan impressed me as
upon Runyan's credible testimony. Reichmuth generally testified he did not being the more credible witness.
CALIFORNIA BLOWPIPE & STEEL COMPANY, INC. 741
Sequoia Employers Council. On October 31 August
Sommerfeld, a representative of the Council, informed the
Union, by letter, that had it initially contacted the Council
which represented the Respondent that it would have
expedited a solution to the Union's complaints. Sommer-
feld agreed to meet "to discuss matters of mutual interest"
with the Union. This meeting was held on November 15 in
the lobby of a local motel and lasted for 5 or 10 minutes.
Present for the Union were Business Manager Runyan and
International Representative Holsman and, for the Com-
pany, Plant Manager Reichmuth, Council Representative
Sommerfeld, and his assistant Huggins. Sommerfeld asked
the union representatives what the Union's problem was
and they stated that the Company had not, as the Union
requested, supplied the names and classifications of
employees as well as the employees' addresses and dates of
hire and termination, which the Company was obligated to
furnish under rule 2(F) of the contract. Sommerfeld
assured the union representatives that there was no
problem and that the Respondent would furnish the
information. This much is undisputed. Sommerfeld and
Reichmuth, however, testified that Reichmuth in effect
stated that he had no hire and termination slips and had
never seen one, whereupon Sommerfeld stated that the
Company would furnish the information provided the
Union furnish the hire and termination slips. I reject this
testimony for I do not believe that Reichmuth or
Sommerfeld were telling the truth. Neither one impressed
me as an honest witness on this point. Accordingly, I do
not credit their testimony that on November 15 Reichmuth
indicated to the union representatives that the Company
had no hire and termination slips or that Sommerfeld
indicated that Respondent would supply the requested
information provided the Union furnish the hire and
termination slips. Rather, in accord with the credible
testimony of the union representatives, I find that
Sommerfeld, without any qualification or condition, agreed
to provide the Union with a list of the unit' employees by
classification and to supply the employees' dates of
employment and addresses.
On November 28 Plant Manager Reichmuth transmitted
by mail to the Union the Company's report for October to
the Boilermaker-Blacksmith Natipnal Pension Trust which
listed the employees employed by Respondent during
October and noted their job classification. This was the
only portion of the requested information ever furnished to
the Union.
In the meantime the October 19 deadline had passed for
the employees to comply with the contractual union-
security agreement and the Union's Business Manager
Runyan instructed the Union's secretary-bookkeeper,
Naomi Barnes, to determine which employees in Respon-
dent's employ were not complying with the union-security
agreement. Barnes' best information - due to the
company's refusal to submit current information - was a
copy of the July pension report submitted by Respondent
to the Boilermaker-Blacksmith Pension Trust Fund. The
s Under the terms of the collective-bargaining contract Respondent
made contributions for each unit employee to the Boilermaker-Blacksmith
National Pension Trust located in Kansas City, Kansas . In this regard
Respondent furnished the pension trust a monthly report at the end of each
Union received a copy of these reports from its Interna-
tional Union about 1 to 2 months after the Company
submitted them to the fund.5 Barnes made up a worksheet
which recorded all of the named employees and noted each
employee for whom the Union had no current record.
Barnes' calculations disclosed`44 employees who had made
no payments of initiation or reinstatement fees or current
dues. She reported this information to Runyan and they
composed and sent a letter to Respondent requesting that
the 44 employees be discharged. The letter dated October
30, and addressed to Hogan, reads as follows:
According to your July 1973 report of Pension deposits
to the Boilermaker-Blacksmiths National Pension
Trust, we are listing your employees who appear on this
report who have not paid their initiation or reinstate-
ment fees : [list of 44 names]
We are therefore, requesting that you comply with Rule
2, paragraph (D) of the current Agreement between
your company and Local 749 [quotes the union security
agreement].
We, therefore, request you to terminate each of these
men immediately; and also, any other employee hired
prior to August 19, 1973, that have not paid their
initiation fee.
Respondent failed to comply with the Union's request of
October 30, so on November 29 Runyan wrote President
Hogan a letter in which he reminded him of the request
that Respondent terminate employees because of their
noncompliance with the union-security agreement , pointed
out that Respondent had not complied with the request,
and based upon this refusal charged Respondent with
violating the union-security agreement. The Union asked
for a meeting pursuant to the contractual grievance
machinery to settle the violation. Respondent's answer to
Runyan's letter of November 29 was a letter dated
December 11 from Council Representative Sommerfeld
which, in pertinent part, read:
If you will recall, we met with the Union on November
15. At that time the Union was given the opportunity to
bring before the company all issues that were important
to them. It was clear that any difference we had at that
time were resolved through this meeting. Therefore, the
text of your November 29 letter appears to be untimely,
improper, and certainly not consistent with the factual
analysis of the situation.
If you have any further questions, or other matters to
take up regarding this Company, please do not hesitate
to contact this office, the Company's authorized
bargaining agent.
On December 26 Runyan by letter to Hogan reviewed
the history involving the Union's unsuccessful efforts to
secure the information provided for in rule 2(F) of the
month. This report does not contain the employees ' job classifications or
addresses or dates of employment. It merely contains the employees' names,
social security numbers, total hours worked by each employee for that
month, and the money contributed for each employee to the trust fund.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract and the Company's failure to discharge employees
who had not complied with the contractual union -security
agreement, and concluded the letter, in substance, with a
request that the parties submit the matters to binding
impartial arbitration as provided in the contractual
grievance procedure. In response Sommerfeld by letter
dated December 28 stated:
By your letter of December 26, it appears you are
resuming an effort to cause the Company to take
improper action against its employees . I sincerely
believe my letter of December 11 set this in proper
perspective . However, I would be willing to meet with
you, providing the Union understands this is not to be
considered a waiver of our previous resolution of these
matters.
On January 17, 1974, the Union's lawyer by letter
informed Sommerfeld that he represented the Union in
connection with Runyan's letter of December 26 and in
effect asked that the Respondent comply ' with the
provisions of the contractual union-security agreement and
also furnish the Union the information requested. In reply,
by telegram of January 22, 1974 , Sommerfeld ignored the
request that the union-security agreement be complied with
and stated that the Company had tendered to the Union
"all information requested and required by the labor
agreement," and further stated that the company intended
to follow the law to the letter and it had asked the
Conciliation Service to assist the parties to resolve the
matter informally.
The unfair labor practice charges upon which this
proceeding is based were filed by the Union on January 23,
1974.
As described previously, due to an oversight, the
Supreme Court's denial of the Union 's writ of certiorari in
the prior unfair labor practice case did not come to the
attention of the Board's Regional Office compliance officer
for almost 1 year and it was not until February 5, 1974,
that she wrote a letter to the Union's lawyer, with copies to
the Respondent and Union , seeking compliance with the
portions of the Board 's Order which had not been
complied with. In the meantime a meeting had been
scheduled by the representatives of the Respondent and
Union for February 6, 1974, for the purpose of discussing
the Union's grievances . However, the letter of February 5
from the Board's compliance officer which was received on
February 6 by Respondent resulted in the abrupt ending of
the scheduled meeting . Council Representative Brewer,
who spoke for the Company , stated that the Union would
have to respond to the letter of the Board's compliance
officer before the Company would be in a position to
answer the Union's grievances . The Union representatives,
who had not received the Union's copy of the letter,
suggested that the meeting be adjourned so both sides
could review the letter with their lawyers and that the
Union would contact Respondent.
Hearing nothing from the Union Sommerfeld on March
14, 1974, sent Runyan a letter requesting a meeting and
asked:
At this meeting would you please be prepared to
present a list of those employees you believe are
delinquent, any partial payments received by the
Union, the amounts of such payments , when received,
and how designated . It is our understanding not all
employees are being treated on an equal basis . We wish
to clarify this matter so the Company may assist in the
proper administration of our agreement.
In response the Union 's attorney on March 26, 1974, by
letter informed Sommerfeld in pertinent part:
The Union will today submit to you a list of the names
of the persons who should have made payments under
the union security clause and the amount of money,
dues, or initiation fees , it believes is owed to the local.
Nonetheless, the Union has been prevented from
servicing the contract because it does not know whom
you have hired in the period of time involved. It is
basing its demand upon the monthly report sent to the
National Pension Trust ... .
Therefore, please send directly to the Union a list of all
persons employed by you from January 1, 1973 to date
in all classifications so that the Union can figure out
the matter more closely.
The next day, March 27, 1974, Holsman, the Union's
International representative , as he credibly testified,
handed Sommerfeld the information promised by the
Union's attorney, specifically a list of employees taken
from the July 1973 and January 1974 reports submitted by
Respondent to the National Pension Trust and the scale of
dues and fees charged by Respondent. The submission
however contained the following declaration: "It is an
impossible task for this local Union to give you a complete
listing of the employees obligation to pay the amounts
under the terms of our collective-bargaining agreement,
due to the refusal of [Respondent ] to supply us with the
proper information by the terms of the agreement."
D. Ultimate Conclusions and Analysis
1. The refusal to supply information
It is settled that the collective-bargaining duties imposed
on an employer by Section 8(a)(5) and 8(d) of the Act
include the obligation to supply the employees' representa-
tive with information relevant and necessary to the
intelligent discharge of its function as the employees
exclusive bargaining representative . "There can be no
question," the Supreme Court has observed, "of the general
obligation of an employer to provide information that is
needed by the bargaining representative [of his employees]
for the proper performance of its duties," and this
obligation "extends beyond the period of contract negotia-
tions and applies to labor management relations during the
term of an agreement." NLRB. v. Acme Industrial Co.,
385 U.S. 432,435-436 (1967).
In the instant case the Union requested the names of the
bargaining unit employees and their job classifications,
dates of employment , and addresses . This is the type of
information which is presumptively relevant to the Union
CALIFORNIA BLOWPIPE & STEEL COMPANY, INC. 743
in its role as the employees' exclusive bargaining represent-
ative. Respondent had recognized the relevance as well as
the Union's need for this information by specifically
agreeing in the collective-bargaining agreement, rule 2(F),
that the Union was entitled to this information. Neverthe-
less, the written requests of the Union's business manager
made on August 6, September 5, and October 2, and his
oral request made in August, for this information were all
ignored by Respondent without the courtesy of an
explanation. The president of Respondent, Walter Hogan,
never explained why Respondent did not communicate to
the Union the reason for the Company's refusal to supply
the requested information. Hogan did explain his reason
for not complying with the Union's requests. He testified
that the collective-bargaining contract provided that the
information was to be furnished "on a form furnished by
the Union," which is correct, and further testified that the
Company "did not have any [forms]. "6 In reaching the
conclusion that the Company did not have any forms
Hogan did not speak to the custodian of the forms, the
Company's payroll clerk, but testified that upon receipt of
the Union's letter of August 6 which requested Respondent
to complete and furnish the hire and termination slips that
he simply "looked in the payroll clerk's desk" and "didn't
see any [referring to the forms]." I do not believe Hogan.
In bearing and delivery Hogan was an exceptionally
unimpressive and unconvincing witness. Moreover, his
contention that Respondent did not supply the requested
information because of a lack of forms rings false. I cannot
believe that if Respondent had exhausted its supply of
forms it would not have communicated this information to
the Union rather than sit back and silently ignore the
Union's requests for information. This would have been
contrary to the past practice of the Company's payroll
clerk, which was to request more forms from the Union
when the Company's supply was depleted. Based on the
foregoing, I am of the opinion that the record demonstrates
that at all times material Respondent possessed the form
needed to comply with the Union's requests for informa-
tion or, if not, that the Respondent's refusal to supply the
requested information was not motivated by the lack of
such forms.
Respondent ignored the Union's requests for informa-
tion for approximately 3 months and acknowledged the
requests only when the Union filed a contractual grievance
over Respondent's conduct. At the meeting scheduled to
discuss this grievance, held on November 15, the represent-
atives of Respondent, as described in detail above, agreed
to supply the Union with the names, job classifications,
6 These forms are referred to in rule 2(F) of the contract and are
described by the representatives of the Respondent and Union as hire and
termination slips. These slips provide spaces for an employee' s name, social
security number, address, dates of employment, job classification, rate of
pay, and reason for termination . In the past these slips were in the custody
of the Company's payroll department which, upon either the hire or
termination of an employee, would fill out and forward a slip to the Union.
This practice ceased sometime in 1970, presumably the latter part, for it is
undisputed that in June 1970 the Union's bookkeeper upon the request of
the Company's payroll clerk - transmitted a supply of the hire and
termination slips to the Company. This was consistent with past practice
wherein the Company's payroll clerk, when the Company ran out of these
forms, would ask the Union to furnish more forms.
7 In August when Union Representative Runyan discussed with Plant
dates of employment, and addresses of the unit employees,
but thereafter repudiated this agreement by transmitting
only a list of employees and their job classifications. In
other words, for approximately 3 months the Respondent,
without any explanation, ignored the Union's requests for
information and then after agreeing to supply the informa-
tion repudiated the agreement, and has continued to ignore
the Union's request for the employees' dates of employ-
ment and addresses. This conduct interfered with the
Union's effort to administer the contractual union-security
agreement and, in my view, Respondent engaged in this
course of conduct for exactly that purpose. Respondent
knew the Union wanted to use the requested information
to administer the union-security agreement.l Yet, without
any colorable justification for its conduct Respondent
completely ignored the Union's requests for information
and then brazenly repudiated an agreement to supply the
information. This conduct, when viewed in the context of
the Respondent's opposition to the Union's enforcement of
the union security agreement and its repudiation of the
union security agreement, convinces me that Respondent's
delay in supplying the Union with the employees names
and job classifications, and its continuing refusal to supply
the employees' dates of employment and addresses, was
motivated by its desire to turn the Union's efforts to
administer the union-security agreement into a game of
blindman's bluff. Respondent delayed and completely
refused to furnish the information involved herein for the
purpose of impeding the Union's ability to administer the
contractual union-security agreement.
In determining whether Respondent has violated the Act
by its refusal to furnish the Union with the addresses of the
employees, I have carefully considered that such addresses
are not automatically available to a union; instead the
Board usually requires a showing that without the list of
addresses the union has no other effective means of
communication or, worded another way, lacks reasonable
access to the employees who are not members of the
Union. See General Corporation, 215 NLRB No. 41(1974),
and Magma Copper Company, San Manuel Diviision, 208
NLRB 329 (1974) and cases cited at footnote 5 therein.
Here the situation differs in several significant respects
from those cases where the Board has concluded that the
employees' addresses were necessary for the union to
effectively communicate with all of the unit employees.
This case involves a small bargaining unit of only between
70 and 80 employees who work in close proximity to one
another. The great majority of the nonmembers are not
scattered over a wide geographical area but either live in
Manager Reichmuth the Union's intent to resume enforcing the union-
security agreement he told Reichmuth that the Union needed the employees
names, addresses , job classifications, and dates of hire. Then.on August 29
the Union posted and distributed a notice to the employees which informed
them that the Company had refused to supply the Union with their names
and addresses which the Union needed "for the purpose of advising you
personally of the procedure to be followed in the payment of initiation,
application, or reinstatement fees," thereby making it necessary for the
Union to so advise the employees by posting and distributing the notice.
The Union representatives prior to posting the notice brought it to the
attention of the Company 's plant manager and the notice was posted on the
company's bulletin boards and distributed in the plant. Under the
circumstances, I find Respondent immediately learned of the contents of
the notice.
744 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
Escalon, where the plant is located, or within a 15=mile
radius from the plant.8 The Union, under the terms of the
governing collective-bargaining agreement and in practice,
during the time material herein, had virtually unlimited
and unrestricted access to the employees within the plant.
Union representatives without any meaningful limitation
or censorship were allowed to post notices on the four
company ' bulletin boards and to personally distribute
notices to the employees inside as well as outside the plant.
Also, it is significant that unlike any of the previous cases
the Union, in this case was party to a union security
agreement . The fact that a substantial number of employ-
ees were not members of the Union appears to have
resulted not from circumstances related to difficulties in
communication but because the Union for -over 2 years
refrained from enforcing the agreement. For all of these
reasons I doubt whether the evidence establishes that the
Union lacked reasonable access to the employees, the
nonmembers, whose addresses it lacked. But I need not
resolve this question for I am persuaded that the Union's
need for the employees addresses is presumptively estab-
lished by, Respondent's conduct. In rule 2(F) of its
collective-bargaining agreement Respondent specifically
agreed to furnish the Union with the addresses of all unit
employees. In effect Respondent agreed that the Union
needs such information to administer the agreement.
Under the circumstances Respondent now cannot success-
fully contend that, the Union has no need for this
information. Indeed, at no time during this case, from the
Union's initial request through its posthearing brief, did
Respondent urge that the Union did not need and thus was
not entitled to the addresses. To the contrary, Respondent
seems to have taken the position that the Union in fact
needed the information to fairly administer the union-
security agreement and the only reason Respondent did
not furnish the information was the Union's failure to
furnish Respondent with the means to do so, namely, the
hire and termination slips.
'In its posthearing brief Respondent urges 'that the
allegation that Respondent has unlawfully refused to
furnish the Union with information be dismissed for two
reasons . Firstly, because the Union failed to file a timely
grievance under the contractual grievance-arbitration
procedure, an argument I shall evaluate at the conclusion
of this Decision. And, secondly, because rule 2(F) of the
collective-bargaining agreement obligates the Respondent
to furnish the requested information only if the Union
furnishes the means to supply the information, namely, the
hire and termination slips. For the reasons expressed
previously I do not believe Respondent's story' that it had
none of these forms in its possession during the time
material herein . But even assuming that Respondent had
completely depleted its stock of these forms I do not read
rule 2(F) of the agreement as requiring the' Union to be
sufficiently clairvoyant to realize that Respondent was
without forms and that this was the reason for the
Respondent's failure to furnish the requested information.
8 The record on this point is far from satisfactory but a comparison of
the 44 nonmembers listed on the Union's request for discharge of October
30 with G.C.' Exh. 33, which contains the employees ' addresses, reveals that
18 reside in Escalon , 21 withina radius of 15 miles from Escalon , 3 within a
radius of 20 miles, and the remaining 2 in Washington and Nevada.
If I understand the -Respondent's argument, ibis that under
the terms of rule 2(F) Respondent was entitled to ignore
the Union's requests for information because Respondent
had no forms in its possession and at the same time was
not obligated to notify the Union that it had depleted its
supply of the forms. I am unable to read any such intent
into the language of rule 2(F) and refuse to strain and
reach such an unrealistic interpretation which, in my view,
would do violence to rule 2(F), and would be taking a step
backwards towards incorporating all of the worst features
of the ancient common law pleading system into our
present day administration of collective-bargaining agree-
ments. Moreover, as described above, it is plain from
Respondent's past practice that it was understood by
Respondent that when it exhausted its supply of forms
that, as common sense would appear to dictate, Respon-
dent would notify the Union of this fact so that the Union
could furnish more forms.
For the foregoing reasons, I find that the information
requested by the Union - the names, addresses, job
classifications, and dates of employment - was relevant
and necessary to the Union in its role as the employees'
exclusive bargaining representative, and that Respondent
by delaying between August 6 and November 28 in
supplying the Union with the employees' names and job
classifications and by refusing since August 6 to furnish the
Union with the employees' addresses and dates of
employment was acting in bad faith and was motivated by
a desire to obstruct the Union from administering the
contractual union-security agreement. Accordingly, by
engaging in this conduct Respondent violated Section
8(a)(5) and (1) of the Act. This conclusion is premised on
the rule of law ennunciated by the Supreme Court in
N.L.R.B. v. Acme Industrial Co., supra. However, I am also
convinced that there is another reason why Respondent's
response to the Union's requests for information ran, afoul
of the Act, namely, Respondent's conduct concerning the
requested information was an integral part of the Respon-
dent's unlawful repudiation of the union-security agree-
ment which I shall now discuss.
2. The repudiation of the union-security
agreement
(a) An evaluation of the reason, given at the hearing
by Respondent to justify its repudiation of the union-
security agreement
Before setting out and evaluating-Resporident' s reason
for not complying with the Union's request that it enforce
the union-security agreement I am constrained to say that
its two principle witnesses, President Hogan and Plant
Manager Reichmuth, generally were not convincing
witnesses when they_testified about the events leading up to
and surrounding the Respondent's decision. This is a harsh
judgment and I am not an infallible observer, but my
impression of them as they testified was that neither one
Presumably the two employees listed as residing outside the State had taken
up temporary residence at the site of the plant during their' tenure of
employment for it would have been a physical impossibility for them to
have commuted daily from their permanent residences.
CALIFORNIA BLOWPIPE & STEEL COMPANY, INC.
was interested in the truth but solely in advancing the
interest of Respondent.
As described above, the Union in July announced it
intended to resume enforcing the union security agreement
and that all current employees would have to either
become Union members in good standing by October 19
or, in the alternative, make the required payment of
initiation fee, or reinstatement fee and monthly dues.
Respondent immediately expressed its opposition and, in
effect, told the Union representatives and the employees
that it opposed the Union's plan to enforce the union
security agreement because it discriminated -against the
employees who had been voluntarily paying their dues in
favor of the free riders who had taken advantage of the
Union's failure to enforce the agreement by not paying
their dues. Respondent proposed that ithe employees who
had voluntarily continued to pay dues be excused from
paying dues for 2 years and, in addition, that all current
employees be excused from paying an initiation or
reinstatement fee. Plant Manager Reichmuth was afraid, a
fear which he expressed to the Union representatives, that
if the Union did not accept the Respondent's proposal a
significant number of employees would either terminate
their employment or have to be terminated by the
company under the union security agreement. This
situation, Reichmuth told the Union representatives, would
make things difficult for the Respondent .9
The October 19 deadline set by the Union for the
employees to comply with the union security agreement
passed with a substantial number of employees not paying
the required initiation or reinstatement fee. The Union,
without the information it had requested from Respondent,
used a copy of the July pension report submitted by
Respondent to the-Pension Trust Fund to compile a list of
the particular employees who had not complied with the
union security agreement. On October 30 the Union's
Business Manager Runyan, by letter, notified the Respon-
dents president, Hogan, that the company's July pension
report when compared with the Union's records revealed
that 44 employees, who Runyan named, had not paid their
"initiation or reinstatement fees," and asked that their
employment be terminated immediately pursuant to the
terms of the union-security agreement.
On either November 1 or November 2, according to
Plant Manager Reichmuth, Reichmuth and Hogan dis-
cussed the Union's request. Reichmuth advised Hogan that
it did not seem "feasible" for the Company to terminate so
many employees at once explaining to Hogan that he could
not afford to discharge the employees because it would
leave the Company with an insufficient number of workers.
Hogan at this time phoned his labor relations consultant,
Sommerfeld, for advice. In response to Hogan's request for
advice Sommerfeld testified, "I told him that the law was
quite clear. If he had any reason to believe that the same
9 When he voiced his objections on July 26 about the Union's intent to
enforce the union security agreement , Reichmuih testified that in addition
to the above described objections he stated there were employees "who had
not been contacted ." I have already noted that Reichmuth did not impress
me as an honest witness and I do not credit this testimony which was not
corroborated by Union Representatives Runyan or Holstnan who testified,
in substance, that Reichmuth -oblected on the ground,that the UTnign was
treating the employees who had been voluntarily, paying dues unfairly.
745
terms and conditions did not exist with these people as
others in the plant, that I would highly recommend that he
did not fire them." Sommerfeld also "mentioned [to
Hogan] and [Hogan] acknowledged . . . that we had gone
clear to the Supreme Court [referring to the unfair labor
practice case wherein the Union was the Respondent] and
there was quite a background on this and it could be
clouded." In response, Hogan, according to Sommerfeld,
replied that "he was aware of . ., . what I had told him, and
that they felt there was sufficient doubt not to fire the
people." At this point Sommerfeld recommended that
Hogan not comply with the Union's demand. Sommerfeld
simply took Hogan's representation at face value, he did
not ask Hogan nor did Hogan, explain in what manner the
Union was discriminating against the employees or was
otherwise treating employees unfairly in enforcing -the
union-security agreement.
President Hogan was the person who made the decision
not to comply with the Union's request of October 30. This
decision was made, as Plant Manager Reichmuth testified,
on either November 1 or November 2, presumably after
Hogan spoke to Sommerfeld, and at, the conclusion of a
meeting between Reichmuth and Hogan at which they
discussed the Union's request. Hogan's testimony about
the reason for his decision follows:
Q. [Judge] What was the reason for your decision
not to comply with the Union's request?
A. They had not uniformly applied the same rules
for everyone.
Q. Any other reason?
A. Just offhand I can't think of any.
Q. I don't want you to do any thinking-you know
what motivated you.
A. No. I knew that they had not been uniformly
applied.
Q. [Mr. Tichy] If the Union had provided docu-
mentation that the employees involved in there
[referring to the letter of October 30] had been treated
uniformly with regard to the payment of initiation fees
and reinstatement fees, as had other members of the
Union, would you have discharged those employees?
A. Yes
Earlier in his testimony when asked to define what he
meant by the Union having not uniformly applied the
union-security agreement Hogan answered, "paying dues
and initiation fees; and as far as I was concerned, the prior
case had not really changed the situation from the Union's
standpoint of their action towards the people." In sum,
Hogan bases his refusal to comply with the Union's
October 30 request upon his belief that the Union was still
Moreover, a review of Reichmuth's entire testimony shows that at this early
date he had not as yet been informed by any of the employees or Hogan
that employees had not been contacted by the Union in regard to the
payment of fees or dues. These conversations supposedly took place after
the receipt of the Unions letter of October 30. For all of these reasons I find
that Reichmuth's assertion that on July 26 he told the Union representatives
that there were employees "who had not been contacted" is a fabrication.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violating the Act as found in the prior unfair labor practice
case and was not treating the employees it wanted
discharged in the same manner as it was treating other
employees whose discharge it was not requesting. I do not
believe Hogan and reject his testimony. As I have
previously stated he - was an exceptionally unimpressive
witness . In addition, the record, as described below,
demonstrates that his story is a fabrication. -
1. The failure of Respondent to communicate Hogan's
reasons to the Union indicates that the reasons advanced by
Hogan at the hearing were not the real ones.
The Union's request of October 30 was ignored by
Respondent without the courtesy of an answer. The first
time Respondent communicated Hogan's reasons to the
Union for not complying with the October 30 requests was
almost 2 months after the Union filed the instant unfair
labor practice charges. On March 14, 1974, over 4 months
after the Union's request, Sommerfeld, the Respondent's
labor relations consultant, by letter, notified the Union in
pertinent part that it was the company's "understanding"
that "not all employees are being treated on an equal
basis." Then on May 29, 1974, Respondent's attorney
informed the Board's-Regional Office that "we believe that
several of these individuals [referring to the employees
whose discharge the Union requested on October 30] have
never been approached by the Union about membership or
the tender of fees and dues." In considering these
representations I cannot shut my eyes to the fact they were
prepared and made at a time well after the unfair labor
practice charges had been filed in this case and when the
company was defending against the charges. In such an
atmosphere, tainted by a live controversy, the statements
of Respondent's labor relation consultant or its attorney
are of no help to me in evaluating the state of mind of
Hogan and'the basis of Hogan's belief when he made the
decision not to comply with the Union's request. I am
convinced that if Hogan, as he testified, was concerned
about unequal or unfair treatment being accorded to the
employees or the continuation of the Union's prior unfair
labor practices, that Hogan in response to the Union's
request would have-communicated this information to the
Union to justify his refusal to discharge the employees, as
requested by the Union, rather than simply not answer the
request, In reaching this conclusion I have carefully
considered, and reject, Sommerfeld's contention made at
the hearing that the October 30 request was not answered
because the union representatives at the grievance meeting
held on November 15 indicated that the Union had
withdrawn this request. This meeting was requested by the
Union for the specific purpose of resolving its grievance
over the Respondent's refusal to furnish information, not
to discuss the Union's October 30 request that employees
be discharged. In fact the Union's request that the
Company discharge employees was not mentioned, let
alone discussed, at this meeting, and the union representa-
tives did not indicate expressly or by. implication that the
Union was withdrawing the request. In explaining how he
arrived at his belief that the union representatives had in
fact indicated they were withdrawing the request, Sommer-
feld was not an impressive witness. He testified, "I had
sincerely believed that they had second thoughts, or
whatever' their thoughts were. I don't think that they
sincerely, deep down in their heart, wanted to get that
many people canned, and wanted to fmd a way out." There
is not one iota of evidence however to justify Sommerfeld's
alleged belief or to lead Sommerfeld to arrive at such a
state of mind in good faith. To say, as Sommerfeld does in
his letter to the Union of December 11, that, "at [the
meeting of November 151 the Union was given an
opportunity to, bring before the company all issues that
were of importance to them [and]' it was clear that any
difference [including the one over the Union's October 30
`request] we had at that time was resolved through this
meeting," is a complete distortion of what actually
occurred and places a premium on trickery rather than the
parties' good faith in resolving grievances under collective-
bargaining agreements. Based on the foregoing, I fmd
Sommerfeld's testimony incredible and conclude that there
was no basis for Respondent to conclude that the Union
representatives on November 15 had in effect indicated
that the company should forget the October 30 request and
further fmd that . Sommerfeld did not advance this
contention in good faith.
2. ' Regarding Hogan's reliance upon the Union's past
unfair labor practices committed in 1969 and 1970, found by
the Board in Local Union No. 749, there is no evidence which
indicates that Respondent had any reason to believe that the
Union during the time material to the instant case was
continuing to engage in these unfair labor practices.
To the contrary, the excessive reinstatement. fees were
discontinued by the Union on December 29, 1969, which
was prior to the commencement of the prosecution before
the Board's Administrative Law Judge of the case against
the Union. Hogan, who testified in effect that he followed
this proceeding closely, presumably was aware of this fact
since the General Counsel did not even contend that the
fees were unlawfully excessive after December 29, 1969,
and this fact was prominently stated in the decision of the
Administrative Law Judge which issued on January 28,
1971. The remaining issue in the prior unfair labor practice
case involved the Union Starch doctrine. And, it is clear
that the Respondent at all times material to the instant case
knew that the Union was no longer conditioning employ-
ment upon union membership rather than upon the
payment of dues and fees. For on July 19 the union
representatives, in announcing the Union's intent to
resume enforcing the union-security agreement, specifically
informed the employees, by written notice, that they were
only obligated' to pay the amount of the initiation fee and
monthly dues charged by the' Union but did not have to
become members of the Union. Hogan presumably knew
this since the notice was ' posted on all of the Company's
bulletin boards, it was also read by Plant Manager
Reichmuth, and immediately after its distribution Hogan
discussed the notice with the employees. There is no
contention or evidence that the Union ever acted contrary
to its announced intent of not requiring employees to join
the Union or that any employee complained to Hogan or
Reichmuth that the Union was engaged in such conduct.
Based on the foregoing, I find that Hogan's reliance,
expressed at the hearing, upon the Union's prior unfair
labor practices as a reason for not complying with its
CALIFORNIA BLOWPIPE & STEEL COMPANY, INC.
request to enforce the union-security agreement was a
fabrication having no bearing upon Hogan's true reason
for not complying with the Union's request.
3. The record establishes that at the time Hogan decided
not to comply with the Union's demand to discharge the
employees that neither Hogan nor Reichmuth had received an
indication from any of the employees, then employed by the
Company, whose discharge the Union sought, that the Union
was not treating them in the same manner as other employees
or was otherwise treating them unfairly.
In testifying that he believed that the Union was not
applying the same rules to the 44 employees it had asked
the Company to terminate as it was to other employees,
Hogan, in effect, testified that he based this belief in
substantial part upon his personal conversations with
employees and with Plant Manager Reichmuth who
reported to Hogan his conversations with employees.
Reichmuth also testified that he spoke to several of the
employees whose discharge the Union was requesting and
that he reported the results to Hogan. Not one of the
employees whom Hogan and Reichmuth claim to have
talked with was called by Respondent to corroborate their
stories, even though a significant number of the employees
were still employed by the Respondent at the time of the
hearing, and, even though, if Hogan and Reichmuth's
testimony is accurate, a number of them are hostile to the
Union. The failure to at least call a sampling of the
employees to corroborate Hogan and Reichmuth is
extremely important because, as I have indicated above,
they impressed me as being extremely untrustworthy
witnesses . Moreover their testimony pertaining to this
aspect of the case was not entirely consistent thereby
making the absence of corroboration even more signifi-
cant. Thus, Reichmuth testified in substance that of the'
employees whose discharge the Union was seeking, who
were employed upon receipt of the Union's request, that he
spoke to only Mutoza, Eaton, Prouty, and Pryor. Inconsis-
tently, Hogan testified that Reichmuth told him he had
also spoken to employees Cadlolo and Udovich. Udovich,
according to Hogan, told Reichmuth that he had not been
asked to join the Union. Reichmuth does not corroborate
Hogan, rather, as described above, it does not appear from
Reichmuth's testimony that Udovich was one of the
employees that he talked with. Employee Eaton, according
to Reichmuth, told him he had not been asked to join the
Union. Hogan was not able to corroborate Reichmuth;
rather, he. testified in effect that his belief that Eaton was
not being treated equally was not based on any failure of
the Union to ask Eaton to join but because Eaton at the
time of the Union's prior unfair labor practices in 1969 had
told Hogan that the Union had refused to accept his tender
of money. Regarding employee Pryor, Hogan testified that
Pryor had told him he was not sure whether he had signed
a membership application for the Union and wanted to
know if Hogan could retrieve it from the Union if he had
10 In its posthearing brief Respondent also includes employee Cook. It is
plain, however, that Hogan testified that Cook, told him that employee
Cadlolo had not been asked to join the Union , rather than tell Hogan, as
Respondent urges, that he, Cook , had not been asked to join.
11 Neither Pryor nor Maddox , when they were spoken to by Reichmuth
and Hogan, respectively, protested that they had paid their initiation or
reinstatement fee or that they had not been properly informed of their
747
signed one. On the other hand Reichmuth testified in effect
that there was no doubt in Pryor's mind that he had signed
a union membership application but that Pryor had told
Reichmuth that because of financial difficulties he could
not afford to pay the Union's initiation fee and was trying
to work the matter out with the Union's business manager.
For the foregoing reasons I am convinced that the
unexplained failure of Respondent to call employees to
corroborate the testimony-of Hogan and Reichmuth as to
what the employees told them creates an inference that the
employees if called would have contradicted their testimo-
ny. Under the circumstances I conclude that the evidence
fails to establish that when he decided not to comply with
the Union's October 30 request that Hogan had received
indications from any of the employees whose discharge the
Union was requesting that the Union was not treating
them in the same manner as other employees or was
otherwise treating them unfairly.
4. The unexplained limited nature of the Respondent's
investigation indicates that Respondent had received no
information from employees upon which to base a belief that
the employees whose discharge was being requested were
being treated unequally or otherwise unfairly.
Of the 44 employees named in the Union's October 30
request and whose discharge the Union was seeking, 28
were employed by the Respondent at the time it received
the request (compare G.C. Exh. 33 with G.C. Exh. 14). If
the testimony of Hogan and Reichmuth is credited then
the record shows that of the 28 they had spoken to only 8
- Mutoza, Eaton, Prouty, Pryor, Stevens, Cadlolo,
Maddox, and Udovich 10 - when Hogan arrived at his
decision not to comply with the Union's request. Two of
these employees, Pryor and Maddox, did not give the
Respondent cause to believe that the Union had denied
them membership or was seeking their termination for any
reason other than their failure to tender the initiation fee or
reinstatement fee uniformally required as a condition of
acquiring or retaining membership or that the Union had
otherwise treated them unfairly.11 To sum up, viewed most
favorably to Respondent the record establishes that when
Hogan arrived at the decision not to comply with the
Union's request he only had been informed that 6 of the 28
employees then employed by Respondent whose discharge
the Union was seeking were in some manner being treated
unfairly, yet Hogan ignored the Union's request as to all
28. This occurred despite the fact that Hogan at the
hearing reluctantly admitted there was no doubt in his
mind that all 28 were delinquent in their obligation to the
Union, required by the union-security agreement. Hogan
offered no explanation for not speaking to all 28 rather
than only 8, when it is plain that a brief investigation
would have better indicated the propriety or impropriety of
each of the requested discharges. This failure to investigate
is contrary to the policy announced by Reichmuth to the
union representatives in July when he learned to his
obligation to the Union under the union-security agreement. Pryor simply
told Reichmuth that because of financial difficulties he was unable to pay
the initiation fee and was attempting to work the matter out with the Union.
Maddox, when Hogan asked if he was going to get his problem with the
Union straightened out, simply replied, "I think so." In short, even if
Reichmuth and Hogan are credited it is plain that Maddox and Pryor
indicated that the Union was justified in seeking their discharge.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
displeasure that the Union intended to resume enforcing
the union-security agreement. At that time Reichmuth told
the union representatives that the Respondent before
discharging employees would examine the case of each
employee on an individual basis. This seems a sensible
approach to the matter, yet for some unexplained reason
the Union's request was not handled this way. Respon-
dent's investigation came to an unexplained halt after only
eight employees were interviewed. Under the circum-
stances , I am convinced that this limited investigation, plus
the failure to even communicate to the Umon the alleged
unfair or unequal treatment uncovered by the investiga-
tion, indicates that Respondent's investigation gave it no
reasons to believe that the employees whose discharge was
sought were being discriminated against or were otherwise
being treated unfairly.
(b) Conclusions
The Union, in July, after over a 2-year lapse in enforcing
the contractual union-security agreement, announced it
intended to resume enforcing the agreement. Respondent
immediately told the employees and the union representa-
tives that it was opposed to the Union's enforcement of the
agreement as written and made certain proposals which in
effect constituted a modification of the collective-bargain-
ing agreement, including the union-security provision. The
Union however was not obligated to agree or even to
discuss the Company's proposal which constituted a
midterm modification of the collective-bargaining agree-
ment,12 and in fact rejected the proposal. Respondent's
reaction was to deliberately obstruct the Union's effort to
administer the union-security -agreement by unlawfully
refusing to furnish the Union with the employees' names,
addresses, job classifications, and dates of employment.
Then Respondent refused to comply with the Union's
request of October 30 that it discharge those employees
currently employed by Respondent, whom the Union
named, who had not complied with the terms of the union-
security agreement. Respondent ignored the Union's
request and refused for the remainder of the term of the
collective-bargaining agreement to implement the union-
security agreement and, as found above, engaged in this
conduct without any legitimate reason.13 The effect of this
was to allow 28 or more employees employed as of October
30 and all new employees hired for the remainder of the
term of the contract to become free riders and avoid
paying the Union the fees and dues required as a condition
of continued employment by the union-security agreement.
By its conduct Respondent in effect in significant respects
has unilaterally implemented its midterm contract proposal
which the Union was not obliged to accept. Whether
viewed in this posture, or otherwise, the Respondent's
continuing refusal to implement the union-security agree-
12 See , C & S Industries, Inc., 158 NLRB 454,456-458 (1966); N.LRB.
v. Scam Instrument Corp, 394 F.2d 884, 887 (C.A. 7, 1968). Cf. Chemical
Workers v. Pittsburgh Glass, 404 U.S. 157, 185, where, although dictum in
that case, the Supreme Court appears to accept the validity of the principle
that a midterm modification of a contract "is a prohibited unfair labor
practice ... when it changes a term that is a mandatory rather than a
permissive subject ofbargammg."
13 I am convinced that if Hogan had a legitimate reason or was otherwise
acting because of a bona fide business reason that he would have
ment has the effect of modifying the existing collective-
bargaining agreement as well as terminating a clause in the
agreement all in derogation of Respondent's bargaining
obligation under Section 8(d) of the Act. This action had a
continuing impact on Respondent's relationship with the
Union and the unit employees. It is the type of conduct
which by its very nature is designed to interfere with the
Union's statutory duty to represent all of the unit
employees and also has a tendency to undermine the
Union. As a practical matter the Respondent's repudiation
of the union-security agreement constitutes a death blow to
the Umon in its role of bargaining representative by
allowing employees a "free ride," and, as such, comes close
to repudiating the collective-bargaining relationship be-
tween Respondent and the Union. For, the Union is
obligated under the Act to represent all of the bargaining
unit employees, and, since effective representation costs
money it is plain that the union-security agreement is of
great importance to the Union.14 Thus, the refusal of the
Company to implement the agreement seriously effected
the ability of the Union to represent the employees and
administer the collective-bargaining agreement. Moreover,
Respondent's conduct which was engaged in without any
legitimate reason could only have been construed by the
employees as an indication that the Respondent did not
want them to support the Union thereby further undermin-
ing the Union in its role as the employees' bargaining
representative. Nor, can I view the Respondent's repudia-
tion of the union-security agreement in isolation rather I
must evaluate it along with its unlawful refusal to furnish
the Union with information which, as found previously,
was motivated by a desire to prevent the Union from ever
enforcing the union-security agreement. Surely, the man-
ner in which Respondent sought to circumvent its
obligations under the union-security agreement constitutes
the type of conduct which is encompassed within the ambit
of Section 8(a)(5) of the Act. For all of the aforesaid
reasons I find that Respondent by unilaterally refitsing,to
honor and repudiating the union-security agreement on or
about October 30, 1973, and continuing thereafter for the
remainder of the term of its collective-bargaining contract
with the Union, has engaged in the type of conduct which
constitutes an unfair labor practice within the meaning of
Section 8(a)(5) and (1) and Section 8(d) of the Act. Oak
Cliff-Golman Baking Company, 207 NLRB 1063 (1973); W.
P. Ihrie & Sons, Division of Sunshine Biscuits, 165 NLRB
167 (1967); Montgomery Ward & Co., Incorporated 162
NLRB 369 (1966).
One final point pertaining to the finding that Respon-
dent on or about October 30 completely repudiated the
union-security agreement for the remainder of the term of
the collective-bargaining contract. This case does not
involve only a refusal by the Respondent to honor an
communicated this reason to the Umon when Respondent refused to
implement the Union's request of October 30 and would have presented this
reason at the hearing, rather than fabricate a false reason.
14 A recent study indicates that 63 percent of collective-bargaining
contracts include a union-security agreement of the kind involved in the
instant case and that 81 percent of the contracts include one or more of the
principle forms of union security-union shop, modified union shop,
maintenance of membership, and agency shop. BNA's Daily Labor Report
8:B-1(1975)
CALIFORNIA BLOWPIPE & STEEL COMPANY, INC.
isolated request that it implement the union-security
agreement in the case of several delinquent employees,
with Respondent declining to comply with the request on
its merits . Rather, this case involves the complete repudia-
tion of the agreement. I realize that following its October
30 request which was unsuccessfully renewed, the Union
made no other specific request during the remainder of the
contract term that other named employees be discharged
for failing to meet their obligations required by the union-
security agreement. Nevertheless, I am convinced that such
a request would have been futile because the whole record
establishes that Respondent was engaged in a course of
conduct designed to completely repudiate the union-
security agreement unless the Union agreed to enforce the
agreement in the drastically modified manner proposed by
Respondent. As described previously, Respondent, hostile
to the Union's intent to resume enforcing the union-
security agreement as written, proposed that the agreement
be significantly modified. Immediately following the
Union's rejection of its proposal Respondent refused to
supply information needed by the Union to administer the
agreement and continued to refuse the Union this
information for die, duration of the collective-bargaining
agreement . It did this for the purpose of preventing the
Union from enforcing the union-security agreement.
Another indication that Respondent repudiated the union-
security agreement rather than simply oppose the Union's
October 30 request on the merits was the failure of
Respondent to communicate to the Union the reason for
its refusal to comply with its request. If Respondent was
simply concerned about the merits of the particular request
I am convinced that its concern would have been' promptly
communicated to the Union and it would not have
engaged in a course of conduct for the remainder of the
term of the agreement designed.to prevent the Union from
intelligently enforcing the agreement. In reaching the
conclusion that Respondent completely repudiated the
agreement I have carefully considered its conduct follow-
ing the filing of the instant unfair labor practice charges. In
February 1974 an abortive meeting, described above, was
held between representatives of the Respondent and Union
and on March 14, 1974, Sommerfeld proposed that the
parties meet again to discuss the Union's grievance
concerning the union-security agreement. In my opinion
this was not a good-faith effort on the part of Respondent
to "clarify this matter so the company may assist in the
proper administration of our agreement," as stated by
Sommerfeld in the letter. Rather, the content of the letter,
when viewed in the light of the whole record, indicates that
Respondent was still intent on continuing its unlawful
course of conduct calculated to frustrate the Union's effort
to administer and enforce the union-security agreement.
The letter for the first time communicates to the Union the
reason given by President Hogan to justify his decision to
reject the Union's request when he testified in the instant
15 Respondent cites no case in support of this argument which is based
upon the findings of Trial Examiner James Hemingway in the previous
unfair Tabor practice proceedmg ,agamst the Union Local Union No. 749,
supra, 192 NLRB at 509. Respondent , however, inadvertently failed to
indicate that the Board specifically did not pass upon this finding. Supra at
502. 1
16 The contractual union-security agreement, rule 2(B) and (C), in
749
proceeding. In this regard the letter asserts that "it is [the
company's ] understanding not all employees are being
treated on an equal basis," a contention without even a
colorable basis which was manufactured by President
Hogan to use as a device to justify the Respondent's refusal
to implement the union-security agreement. Also the letter
asks the Union to furnish the Company with the names of
the employees whom the Union believes "are delinquent"
and information of any moneys received from such
employees by the Union. Here again Respondent contin-
ues to force the Union to grope in the dark. The Union was
hard pressed to furnish an accurate list of delinquent
employees and Respondent knew this because for several
months before this letter and even in response to the letter
the Union had complained to the Respondent that it
lacked the necessary information to intelligently administer
the union-security agreement. Yet, Respondent from
August 1973, for the duration of the agreement which
expired May 20, 1974, refused to furnish the Union with
the type of information which would have enabled the
Union to intelligently enforce the agreement. For all of
these reasons I am of the opinion that Respondent's
request for a meeting made after the Union charged
Respondent with a violation of the Act is not sufficient to
refute the clear preponderance of the evidence which
establishes Respondent's complete repudiation of the
union-security agreement and does not establish that
Respondent was simply contesting the merits of the
Union's request that it discharge certain employees.
(c) A consideration of the arguments urged by
Respondent in its posthearing brief
1. Respondent urges that in refusing to accede to the
Union's request of October 30 and discharge the employees
that it was simply complying with the provisions of the
union-security agreement. Respondent points out that the
Union in its request demanded the discharge of employees
who had not paid their "reinstatement fee" as well as the
ones who had failed to pay their "initiation fee," and that
rule 2(D) of the collective-bargaining contract states, "In
the application of paragraphs B and C above [referring to
the union security agreement], when the employer is
notified by the Union in writing that an employee is
delinquent in the payment of Union dues, or, . . . has
failed to . . . pay the initiation fee required, the Employer
shall immediately terminate such employee." In short,
Respondent urges that the parties have entered into a
union-security agreement which is more restrictive than
that permitted by Section 8(a)(3) and (b)(2) of the Act.15 I
do not agree.
The union-security agreement involved herein is virtually
identical to the provisions in the Act which provide for a
union-security agreement.16 In this regard I note that
union-security agreements are a creature of the Act as an
substance provides that all employees who are not members of the Union
shall after the requisite statutory time period "become and remain members
of the Union in good standing, as a condition of continued employment"
and that if an employee is delinquent in his dues payments or payment of
Union dues or initiation fee the Respondent shall terminate said employee
who shall not be 'reemployed for the life of the agreement until the
Respondent is notified the employee "is a member in good standing."
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exception to the general rule that neither employers or
labor organizations may condition the employment of
employees or otherwise discriminate against employees
because of a lack of union membership. The first proviso to
Section 8(a)(3) of the Act permits an employer to enter into
an agreement with a labor - organization which requires
membership in the union as a condition of employment
after 30 days, and the second proviso to Section 8(a)(3) and
the exception contained in Section 8(b)(2) permit a union
to enforce such a union-security agreement by discharging
an employee for "failure to tender the periodic dues and
initiation fees uniformly required as a condition of
acquiring or retaining membership." I see no material
distinction between the language of the Act and the
language embodied in the parties' union-security agree-
ment. Thus, if Respondent is correct, the Act permits
unions to enforce union -security agreements similar to the
one involved in this case by seeking the discharge of
employees only for failing to pay dues and initiation fees,
not reinstatement fees. The law , however, is to the
contrary, as it is settled that for purposes of union-security
agreements a reinstatement fee is no different in legal effect
than an initiation fee required of employees, and that a
union under such an agreement may seek an employee's
discharge for the failure to pay a reinstatement fee. See
Food Machinery and Chemical Corporation, 99 NLRB 1430
(1952), and NLRB. v. Fishermen & Allied Workers Union,
Local 33, International Longshoremen 's and Warehousemen's
Union [S. G. Giuseppe Fishing, Inc.], 448 F.2d 255, 257
(C.A. 9, 1971). Indeed, in the instant case Respondent at
no point during the entire dispute , prior to its posthearing
brief, ever indicated to the Union or otherwise that its
refusal to comply with the Union's request was because the
Union was seeking the discharge of employees for their
failure to pay a reinstatement fee or that the union-security
agreement was not applicable in such a situation. To the
contrary, at the hearing in this case President Hogan
testified that if the Respondent had believed that the
Union had been treating the employees whose discharges it
was-seeking in the same way in regard to the payment of
"initiation fees and reinstatement fees" as it was treating its
other members, Respondent would have discharged the
employees including those who had failed to pay a
reinstatement fee. In short, Respondent 's principal official,
the person who signed the collective -bargaining agreement,
construes the union-security agreement as permitting the
Union to seek the discharge of employees for a failure to
pay reinstatement fees. Based on the foregoing, I find that
the defense that the union-security agreement does not
permit the Union to seek the discharge of employees for
the failure to pay reinstatement fees is without substance
and was never a factor in the Company's decision not to
comply with the Union's request.
2. Respondent, relying upon the Board's Decision in
Foley's Mill and Cabinet Works, 95 NLRB 743 (1951), urges
that it "did not violate the Act in refusing to terminate
employees whose discharge was requested by the Union as
it had reasonable grounds for believing that membership in
the Union was not available to the employees on the same
terms and conditions generally applicable to other mem-
bers." I reject this contention as, for the reasons set forth
previously, the record demonstrates that in deciding not to
comply with the Union's request Respondent was not
motivated by any such, belief. Unlike the situation in
Foley's Mill Respondent's conduct was not prompted by
any desire to avoid the commission of unfair labor
practices and was not an isolated act. To the contrary,
Respondent's conduct, which constituted 'a complete
repudiation of the union-security agreement, lacked a
legitimate purpose and was designed to interfere with the
Union's role in representing the employees and was
accompanied by the unlawful refusal to furnish the Union
with information needed to administer the agreement.
3. Respondent urges that the discharge of the employ-
ees requested by the Union in its letter of October 30
would have been unlawful since the Union had breached
its fiduciary duty to treat them fairly, thereby violating
Section 8(b)(1)(A) of the Act. In this regard the Board has
stated in Rocket and Guided Missile Lodge 946, Internation-
al Association of Machinists and Aerospace Workers, AFL-
CIO (Aerojet-General Corporation), 186 NLRB 561, 5.62
(1970), citing N.L.R.B. v. Hotel, Motel and Club Employees'
Uniory Local 568, AFL-CIO [Philadelphia Sheraton Corp.],
320 F.2d 254, 258 (C.A. 3, 1963): "A Union seeking to
enforce a union security provision against an employee has
a fiduciary duty to deal fairly with the employee affected.
At a minimum this duty requires that the Union inform the
employee of his obligations in order that the employee may
take whatever action is necessary to protect his job tenure."
In disagreement with Respondent I am of the opinion that
the record does not establish that the Union did not meet
its fiduciary duty of fair dealing in seeking the discharge of
the employees involved in this case . In reaching this
conclusion I have relied upon the following considerations.
On July 19 the Union announced its intent to enforce the
contractual union-security agreement by posting a notice
to this effect on the four bulletin boards provided for the
approximately 70 to 80 unit employees and by personally
distributing the notice to employees. The notice quoted the
union-security agreement verbatim, set out the amount of
initiation fee and dues which employees were obligated to
pay, advised the employees the Union was requiring them
to comply with the union-security agreement effective that
date and that they did not have to join the Union but were
only obligated to pay the initiation fee and monthly dues,
and announced that a meeting would be held, at the local
Grange Hall on July 26 to discuss the matter at which time
the, Union would accept either full or partial payment of
the moneys the employees were obligated to tender. On or
about July 20 or July 21 the Respondent's president met
with all of the unit employees at which time he discussed
the Union's notice and, although he stated that the Union's
plan to enforce the agreement was unfair and proposed an
alternative to the Union's plan, Hogan also told the
employees that they were obligated under the contractual
union-security agreement to tender the dues and fees to the
Union as advised in the notice. On July 26, as announced
in the notice, the Union held a meeting at the local Grange
Hall attended by approximately 27 to 30 employees at
which time union representatives advised the employees
that all they were obliged to do under the union-security
agreement was to pay the initiation fee and dues and did
CALIFORNIA BLOWPIPE &
not have to join the Union, that July 19 would be
considered as their date of hire for purposes of the
agreement, and that 30 days from that date employees were
obligated to make a downpayment of $50 on their
initiation fee with the remainder coming due 60 days
thereafter, and explained the disadvantages of not joining
the union , i.e., not being able to attend union meetings to
ratify bargaining agreements . Thereafter, on August 29 the
Union posted a second notice on the three bulletin boards
at the main plant where about 60 of the unit employees
were employed and personally handed out about 50 of
these notices to the employees. This notice advised the
employees that the Union had requested the Company to
supply it with a list of employees and their addresses so it
could advise them personally about the procedure to be
followed in paying their "initiation, application or re-
instatement fees," but that the Company had failed to
furnish the information which now forced the Union to
instead post and distribute the notice. The notice then
quoted the union-security agreement verbatim, explained
the method of paying the initiation or reinstatement fees -
$50 within 30 days with the balance in full within 60
calendar days - and informed the employees that their 90
days would be up October 19, warning, "in other words
your initiation, application or reinstatement fees must be
paid in full by October 19, 1973," and advised the
employees they could contact the Union about their
obligation at the Union's office or by calling the Union,
setting out the Union's address and phone number.
The above circumstances demonstrate that the employ-
ees were fairly informed that the Respondent was bound
by a union-security agreement and that the employees
because of this agreement were obligated to, join the Union
or tender the required fees and dues as a condition of
continued employment, and were likewise fairly informed
about what was required by them to meet their obligation
and how, when, and where they could comply with their
obligation. Moreover, not one employee was called by
Respondent to testify that they had not in fact been
sufficiently informed by the Union about their obligation
under the union-security agreement or that they had
otherwise been treated unfairly by the Union. Also, in
evaluating the Respondent's contention that the Union
breached its statutory duty of fair dealing in enforcing the
unionsecurity agreement, I cannot ignore the fact that
Respondent engaged in conduct for the purpose of
interfering with the Union's ability to intelligently and
fairly enforce the agreement. As I have previously found
Respondent unlawfully refused to furnish the Union with
information which would have been helpful to the Union
in enforcing the union-security agreement in a manner
consistent with its duty of fair dealing.17 Based upon
principles of equity it seems to me that Respondent, by
virtue of this unlawful conduct, is estopped and precluded
from now raising the defense that the Union did not deal
fairly with the employees in enforcing the union-security
17 The record indicates that the Union had addresses for only five of the
employees whose discharges it' requested and that only one of these
addresses was a current address.
is Teamsters Local Union No. 122, IBT (August A. Busch & Co. of Mass.,
Inc.) 203 NLRB 1041 (1973); Rocket and Guided Missile Lodge 946 (Areojet-
General Corp.), supra Local 98D, International Union a (Operating Engineers,
STEEL COMPANY, INC. 751
agreement. For all of the foregoing reasons, I am of the
opinion that the record does not demonstrate that the
Union in seeking to enforce the union-security agreement
failed to meet its fiduciary duty of fair dealing. In reaching
this conclusion I have carefully considered the cases18
relied upon by Respondent in its posthearing brief and fmd
each one is distinguishable from the instant situation in a
number of significant respects.
4. In further support of its contention that the
discharge of the employees who were not in compliance
with the union-security agreement would have been
unlawful, Respondent urges that the evidence establishes
that Respondent, in fact, treated the employees whose
discharge it was seeking differently than other employees
with regard to the payment of initiation and reinstatement
fees. In support of this contention Respondent points to
the union's treatment of four employees: O..E. Kinslow,
Leonard Curtis, Michael Roberts, and Robert Parshall.
Kinslow's name was not among the employees whose
discharge the Union requested on October 30. Respondent
pursuant to subpena was supplied by the Union with all of
its records pertaining to Kinslow. These documents were
marked for identification as Respondent's Exhibit 19. Also
Respondent examined the Union's bookkeeper, Naomi
Barnes, who testified that the Union's records did not
indicate that Kinslow had paid his initiation or reinstate-
ment fee in full when the Union's request for the discharge
of the employees was prepared by Barnes. At this point
Respondent's attorney asked "why is Kinslow's name not
on the October 30 request for the discharge list" and
Barnes answered, "may I see his card," whereupon
Respondent's attorney looked at Respondent's Exhibit 19,
conferred with someone sitting adjacent to the counsel
table, and then stated on the record, "I will withdraw my
question with regard to Kinslow" and further stated, "I am
going to forget Kinslow," and withdrew Kinslow's records
from evidence.19 Now in its posthearing brief Respondent
urges that the Union' s records indicate that employee
Kinslow was delinquent, in the payment of money which he
owed to the Union on October 30, yet the Union did not
ask for his discharge or threaten him with discharge. I am
puzzled byRespondent's reliance upon the Union' s alleged
treatment of Kinslow for it was my distinct understanding
that Respondent's attorney by his conduct described above
had represented that Respondent did not intend to rely
upon the Union's treatment of Kinslow as part of its case.
The General Counsel and counsel for the Charging Party,
in my opinion, were entitled to rely upon this representa-
tion and were not obligated to introduce evidence
regarding Kinslow to clear up any adverse inference
created by the ambiguous testimony adduced by Respon-
dent. For these reasons I reject Respondent's contention
that the evidence establishes that Kinslow was in the same
category as the employees whose discharge the Union
requested and was treated differently by the Union.
AFL-CIO (Construction Field Survey., Inc.), 156 NLRB 545 (1966).
19 This is the only case where Respondent withdrew from evidence an
employee's Union records . In sharp contrast the Union's records of Curtis,
Roberts, and Parshall were introduced into evidence by Respondent.
20 Even assuming that the evidence demonstrated that Kinslow was
treated differently it is extremely doubtful whether this isolated conduct
(Continued)
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Curtis was employed by Respondent from August 1972
through February 1973, when he terminated his employ-
ment. He applied for Union membership on August, 29,
1972, and paid his initiation fee in installments on various
dates from August 29, 1972, to January 26, 197K Under the
Union's bylaws Curtis should have paid his initiation fee in
90 days but was allowed about 150 days and was never
threatened with discharge by the Union nor was the
Respondent asked to discharge Curtis.
Roberts was employed by Respondent at all times
material. On August 14 Roberts made a downpayment of
$50 on his initiation fee but did not pay the remaining $100
until May 17, 1974. Under the Union's bylaws he was
obligated to pay the full initiation fee in 90 days, thus he
was delinquent on October 30. Roberts' name was not
among those employees whom the Union asked Respon-
dent to discharge on October 30, but the Union's business
manager on that date by letter notified Roberts that the
time allowed for him to pay the balance of his initiation fee
had expired and Roberts owed a balance of $100 and
warned that if he did not pay this at once the Union would
have to ask Respondent-to terminate him pursuant to the
terms of the union-security agreement.
Parshall was employed by Respondent at all times
material. On August 20, 1973, he paid $50 toward his
initiation fee, on September 24 he paid $30, and on
November 28 paid thg,balance of $70. Thus, on October 30
Parshall owed $70 and was delinquent in fulfilling his
obligation under the union-security agreement, yet the
Union did not include his name among those employees
whom it requested that Respondent discharge on October
30. Instead, as in the case of Roberts, the Union's business
manager on October 30 wrote Parshall a letter stating that
the time allowed for the payment of his initiation fee had
expired and he owed a balance of $70 and warned if the
Union did not.recei'e this amount at once it would request
that the Respondent discharge him pursuant to the union-
security agreement.
To sum tip, Respondent allegedly treated employees
Roberts, Parshall, and Curtis different from the other
delinquent employees in the following respects. Parshall
and Roberts on October 30 had not complied with the
requirements of the union-security agreement, yet, unlike
the employees whom the Union asked the Respondent to
discharge, the Union merely wrote letters, to Parshall and
Roberts warning them that the Union would request their
discharge if they did not promptly pay the balance of their
fees. Regarding, Curtis, who had not met his obligation
under the, uniionasecurity agreement, the Union never
threatened him wiih the loss of employment or asked
Respondent to discharge him. Respondent in its posthear-
ing brief E takes the position that the Union's conduct
toward these three employees demonstrates that the Union
did not treat the employees whose discharge it sought on
the same, terms and conditions generally applicable to
would have preclgded the Union from otherwise lawfully invoking the
union-security agreement against the other employees. Cf , peczal Machine
and Engineering Company, 109 NLRB 838, 839-840 (1954).
21 Since Parshall 'and Roberts had filled out union applications when
they made the downpayments on their initiation fee they also furnished the
Union with their home addresses, thereby enabling the Union to send them
letters
other employees. I do not agree. Curtis incurred his
obligation to the Union not -during a period of time
relevant to this proceeding, but rather during the period
when the Union, upon the advice of counsel, was not
enforcing the union-security agreement. The Union's
failure to either threaten Curtis with discharge or ask the
Respondent to discharge him, tinder the circumstances, is
perfectly reasonable and does not indicate that the Union
was not treating the employees whose discharge was sought
on October 30 uniformly. Regarding the Union' s treatment
of Parshall and Roberts I note that unlike the employees
listed on the Union's October 30 request these two had
already paid the Union a substantial installment on their
initiation fees. The employees named in the Union's
October 30 request, unlike Parshall and Roberts, had not
previously made a downpayment to the Union. Under the
circumstances, it was reasonable for the Union not to
request the discharge of Parshall and Roberts, but instead
advise them that it would request their' discharges if they
did not pay the remainder of their obligation promptly.21
Nor does the Union's treatment of Parshall and Roberts
otherwise establish that membership was not available to
the employees whose discharge was, sought on the same
terms and conditions generally applicable' to the other
employees.
Based on the foregoing, and my review of the entire
record,22 I find that the evidence does not establish that the
Union in any way engaged in conduct in connection with
the employees whose discharge it was seeking which can be
characterized as discriminatory or unreasonable or in
disregard of its obligation to treat all employees uniformly
in enforcing the union-security agreement.
5. Although not urged as a separate defense Respon-
dent correctly points to the fact in its posthearing bri ef that
"the whole problem concerning employee monetary
obligations to the Union was in fact caused by the Union
which had neglected for a period over 2 years to contact
employees concerning the payment of fees and dues." It is
settled, 'however, that laxness by a union in enforcing a
union-security agreement does not preclude the Union
from thereafter enforcing the agreements Zoe Chemical Co.,
Inc., 160 NLRB 1001, 1013 (1966); cf. Special Machine and
Engineering Co., supra. This is particularly true where, as
here, the Union's reason in not enforcing the agreement
was to await a decision by a court so as to avoid violating
the Act and where, as here, the Union, after acknowledging
its past laxity, gave the employees full notice of its
intention to correct the situation, made no effort to collect
back dues, and gave. the employees a 90-day period in
which to meet their obligation. There is, however, one very
troublesome matter, not raised by Respondent, which
bothers me in connection with this aspect of the' case. It
was due to the Union' s nonenforcement of the union-
security agreement for` over 2 years which placed the
Company in a position on October 30 whereby it was
22 For reasons stated previously I have not given any weight to the
uncorroborated testimony of Reichmuth and Hogan which attributes
certain unfairness or inequality to the Union based on what employees told
Reichmuth and Hogan. I also note that there is no evidence , nor does
Respondent contend in its posthearing beef, that the Union 's reinstatement
fee was unreasonable or discriminatory.
CALIFORNIA BLOWPIPE & STEEL COMPANY, INC.
forced to discharge about 28 of the 70 or 80 employees
employed in the bargaining unit. Plainly this would
constitute a hardship for the Employer and this was in
substance what Plant Manager Reiclunuth advised Presi-
dent Hogan upon the receipt of the Union's request. But
this is not the reason which motivated the Respondent in
not complying with the Union's request. At no time - to
the Union or during the course of this litigation - did
Respondent indicate that in refusing to discharge the
employees that it was even in part motivated by the
economic hardship which would result from the discharges.
To the contrary, President Hogan testified that he would
have discharged all the employees if the Union had
satisfied him that it was treating all of the employees
equally. Under the circumstances, I will not attribute a
motive of economic hardship to Respondent which was
never advanced by Respondent to justify its conduct. In
any event, "the Act permits no immunity because the
employer may think that the exigencies of the moment
require infraction of the statute." N.L.R.B. v. Morris
Harris, et al., d/b/a Union Mfg. Co., 200 F.2d 656, 659
(C.A. 5).'Accord: N.LR.B. v. Pappas and Company et al.,
203 F.2d 569, 570 (C.A. 9). In this respect the instant case
is essentially indistinguishable from George E. Light Boat
Storage, Ine.,23 in which the respondent employer ceased to
make payments into a fund,as - required ' by' his contract
with the union or otherwise-,to. abide by the contract
because he was "short of funds." Subsequently, the
employer had "'all but gone out of business." Nonetheless,
both the Board and the court found that the employer's
actions to be violative of Section 8(a)(5), the Board stating
that "neither private convenience nor economic and
business exigencies justify unlawful conduct."
(d) Respondent's waiver, argument
Respondent in its posthearing brief urges that "the
Union waived any rights it might have had to the requested
information and to the termination of employees by failing
to comply to [sic I the grievance provisions of the contract."
More specifically, Respondent in its answer to the
complaint alleged as an affirmative defense:
There is a binding contractual grievance procedure
contained in the collective bargaining agreement.
Despite the existence of said compulsory grievance
procedure, the Union has failed to submit the matter to
the grievance procedure in a timely manner, thereby
waiving any contractual right to raise the above claim.
Under California Code of Civil Procedure Section
1281.2, waiver of a duty to arbitrate is a complete bar
to all proceedings on the underlying dispute.
Rule 16 of the collective-bargaining agreement contains
a multistep grievance arbitration procedure ending in
binding arbitration which is sufficiently broad to encom-
pass the dispute which arose over the Respondent's refusal
to furnish the information involved herein and its repudia-
tion of the union-security agreement . The grievance
procedure, however, by its terms contains a statute of
limitations providing that grievances "shall be processed
753
... within 10 working days from the date the matter
complained of occurred." The Union, as described above,
filed grievances over the matters in dispute herein but did
not 'file them within the 10-day period required by the
contractual grievance procedure. It is from this failure to
file timely grievances that Respondent urges that the
Union has thereby waived its right to litigate the matters
involved herein either before an arbitrator pursuant to the
contractual grievance procedure or before the Board.
Respondent's attorney at the hearing represented that
Respondent was not willing to waive the time limitations
set out in the contractual grievance procedure, that
Respondent was not amenable to having an arbitrator
decide whether the Union's grievances were timely, that
Respondent did not want the Board to defer this case to
arbitration pursuant to its Collyer doctrine, but that
because the disputes involved in this proceeding were
encompassed by the contractual grievance procedure that
the Union's failure to file timely grievances warrants the
dismissal of the entire complaint without reaching the
merits of the matter. I find no merit in this contention
which goes far beyond the principle underlying the Board's
present deferral policies. See Gary-Hobart Water Corpora-
tion, 210 NLRB 742 at fn. 3 (1974). What Respondent
seems to be urging is that its conduct constituted a breach
of 'contract which the Board is powerless to remedy- and
only an arbitrator and not the Board has the authority to
remedy such matters. It is well settled, however, that unde-
Section 10(a) of ' the Act, the Board has the power to
"proscribe conduct which is an unfair labor practice even
though it is also a breach of contract remediable as such-by
arbitration and in the Courts." N.L.R.B. v. Joseph T.
Strong, d/b/a Strong Roofing and Insulating Co., 393 U.S.
357, 360-361 (1969); N.LR.B. v. C & C Plywood Corpora-
tion, 385 U.S. 421 (1967).
Upon the basis of the foregoing findings of facts and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. California Blowpipe & Steel Company, Inc., the
Respondent, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local Union No. 749, International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and
Helpers of America, - AFL-CIO, the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All of Respondent's employees performing work in
manufacturing, fabricating, contract and repair shop,
excluding all other employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein the Union has been the
exclusive representative of all the employees in the
aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing to supply the Union with information
the Respondent has engaged in, and is engaging in, unfair
22, 153 NLRB 1209, 1220 (1965), enfd. 373 F.2d 762, 765, 770 (C.A. 5,
1967).
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. By repudiating, refusing to honor, and unilaterally
modifying the collective-bargaining agreement entered into
between it and the Union, the Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8 (a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE R immi
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices affecting com-
merce, I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act. -
It has been found that by refusing to furnish information
requested by the Union that the Respondent violated the
Act. Ordinarily an Order requiring disclosure of such
information would be appropriate, but since the requested
information is not presently, necessary or relevant to the
Union for purposes of collective bargaining I shall
recommend only a cease-and-desist sanction. Thus, the
Union requested the information for the purpose of
administering the union-security agreement. The agree-
ment terminated on May 20, 1974, with the remainder of
the parties' collective-bargaining contract. No new con-
tract has been negotiated and the parties do not appear to
be currently negotiating such a contract. Consistent with
the fact that there is no current agreement to administer
the Union's business manager, Runyan, testified that the
Union was no longer seeking the information which it had
been denied and, in the same vein, the Union in its
posthearing brief states, "the remedy for [Respondent's
unlawful refusal to furnish information] is normally to
require the employer to relinquish such information
forthwith [cases cited]. Such a remedy would in this case be
meaningless, because of the collective bargaining relation-
ship between the parties having lapsed." Based on the
foregoing, I do not believe that the requested information
is presently necessary or relevant to the Union for purposes
of collective bargaining and, under these unusual circum-
stances, shall simply provide for a cease-and-desist
sanction which will guard against the resumption of the
Respondent 's unlawful refusal to furnish information. Cf.
C-B Buick, Incorporated v. N.LRB., 506 F.2d 1086 (C.A.
3, 1974).
Having found that the Respondent has violated the Act
by repudiating the union-security agreement in its bargain-
ing agreement with the' Union, I shall recommend the
remedy normally granted by the Board for this type of a
violation, a cease-and-desist order. The General Counsel,
however, urges that the Union be compensated for fees and
dues lost because of the Respondent's unlawful repudia-
tion of the union-security agreement. Specifically, I am
urged to recommend that Respondent be ordered to: (1)
discharge those ' current employees, within 30 days of the
24 The date the collective-bargaining agreement terminated.
25 Why the compensation of the Union for the loss of fees and dues
when an employer unlawfully repudiates a union -security agreement is less
issuance of this Decision, whose discharge was sought by
the Union on October 30, 1973, if they refuse to pay the
fees and back dues owed the Union from July 19, 1973, to
May 20, 1974,24 and, if these employees refuse to make
such payments the Respondent in addition to discharging
them shall pay the Union the amounts owed plus 6 percent
interest per annum; and (2) compensate the Union for the
dues and fees the employees were obligated to pay under
the union-security agreement from July 19, 1973, to May
20, 1974, for those employees whose discharge was
requested on October 30, 1973, but who are no longer
employed by Respondent. The Union seeks the identical
remedy except it urges a broader reimbursement remedy. It
asks to be compensated for the loss of fees and dues for all
employees - not just those listed on the Union's October
30 request - employed from July 19, 1973, to the
termination of the union-security agreement.
I have carefully considered the remedy sought by the
General Counsel and, Charging Party in the light of the
Board's Decision and Order in Southland Dodge, Inc., 205
NLRB 276 (1973). There, the Administrative Law Judge
concluded that the respondent employer violated Section
8(a)(5) of the Act by refusing to execute an agreed-upon
collective-bargaining agreement which contained a union-
security provision, and ordered the respondent employer to
give retroactive effect to the terms and conditions of the
contract including the union-security agreement. In this
regard, the Judge for very much the same reasons
advanced by the General Counsel in his posthearing brief
concluded that to restore the status quo it was necessary to
reimburse the union for any loss of dues resulting from the
respondent employer's unlawful refusal to sign the colle -
tive-bargaining agreement and implement the union
security agreement. The Board, however, deleted this
provision from the Order, explaining (supra, at fn. 1):
The Board has ordered dues reimbursement in appro-
priate cases only where employees have individually
signed dues checkoff authorizations. There is no
evidence of such signing in this case. Accordingly,,the
proposed remedy is inappropriate. Ogle Protection
Service, Inc., 183 NLRB 682; Creutz Plating Corpora-
tion, 172 NLRB 1.
In the instant case there is no contention or evidence that
the employees signed dues-checkoff authorizations.
In my opinion the Board's decision in Southland Dodge
and Ogle Protection Service are not distinguishable from
the instant case in any significant respect. The only
distinction pointed to by the General Counsel is that when
the Board Orders issued in the cited cases the "contract
remained in effect and such a remedy [referring to the
remedy proposed in this case] was unnecessary." This, in
my opinion, is a distinction without any legal significance
insofar as the General Counsel urges that the Union should
be compensated for the loss of fees and dues in order to
restore the status quo. 25
Regarding that part of the requested remedy which
would require Respondent to discharge employees who
necessary to, restore the status quo when a contract remains in effect, than in
the instant case , is not convincingly explained by the General Counsel.
CALIFORNIA BLOWPIPE & STEEL COMPANY, INC.
previously had not complied with the now expired union-
security agreement, if granted it would in effect compel the
Respondent to reinstate the union-security agreement
which would be contrary to the policies of the Act. For, it
is settled that Respondent was not obligated to continue to
honor the union security agreement after the termination
of the collective-bargaining contract. Bethelehem Steel
Company Shipbuilding Division, 136 NLRB 1500, 1501
(1962), enfd. 320 F.2d 615, 619 (C.A. 3, 1963). Thus, such a
remedy, in the absence of an agreement, does not seem
appropriate and also seems contrary to the principles
ennunciated by the Supreme Court in H. K Porter v.
N.L.,RB., 397 U.S. 99 (1970), which makes clear that an
employer may not be ordered to agree to a union-security
agreement . There is, however, an even more important
reason for not granting this part of the proposed remedy.
Such a remedy would be extremely inequitable since none
of the employees whose discharge would be ordered were
ever notified of this proceeding, or that the Government
was proposing that they be discharged for not complying
with the contractual union-security agreement, and were
never given an opportunity to intervene to protect their
jobs.
The General Counsel states that his proposed remedy is
one of "first impression" and that I should "openly minded
consider the Board's power under 10(c) of the Act" in
determining whether such a remedy is appropriate, and
"submits that neither a rational nor an administrative
policy distinction can be made between the checkoff cases
[wherein the Board has compensated the Union for the loss
of fees and dues] and a pure union security clause case
[wherein the Board will not so compensate the union]."
But, as the General Counsel apparently recognizes, his
proposed remedy is contrary to the Board's present policy,
which I have no power to change, and which I am bound
to follow until it is overruled by the Board or the Supreme
Court.26 See The Prudential Insurance Company of America
(Insurance Agents' International Union, AFL-CIO), 119
NLRB 768 (1957). Under the circumstances, General
Counsel's arguments advanced in his posthearing brief
should more properly be directed to the Board.
For all of the reasons set forth above I have not included
the remedy proposed by the General Counsel and
Charging Party in my recommended Order remedying the
Respondent's unlawful repudiation of the union-security
agreement.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, 1 hereby issue the following recommended:
ORDER27
Respondent, California Blowpipe & Steel Company,
Inc., Escalon, California, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local Union
No. 749, International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers of
America, AFL-CIO, as the exclusive bargaining represent-
ative of the employees in the unit described below, or with
any other labor organization which may hereafter become
755
the duly designated majority representative of the employ-
ees in said unit, by:
(1) Refusing to provide the representative of its employ-
ees with information necessary and relevant for effective
collective bargaining.
(2) Unilaterally repudiating or rescinding any collective-
bargaining agreement entered into with the representative
of its employees, or refusing to abide by the terms of any
such agreement relating to rates of pay, wages, hours, or
other conditions of employment.
(3) Modifying or terminating any collective-bargaining
agreement entered into with the representative of its
employees when not consented to by such representative,
without compliance with the conditions of notice require-
ments specified in Section 8(d) of the Act. The appropriate
unit is:
All of Respondent's employees performing work in
manufacturing, fabricating, contract and repair shop,
excluding all other employees, guards and supervisors
as defined in the Act.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the purposes of the Act.
(a) Post at its place of business in Escalon, California,
copies of the attached notice marked "Appendix." 28
Copies of the notice, on forms provided by the Regional
Director for Region 20, after being duly signed by the
Respondent's representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
26 There is dictum in the Board's Decision in Heck's Inc., 191 NLRB 886
(1971), which indicates that the Board may now view the unlawful
repudiation by an employer of a union-security agreement as sufficient to
establish a predicate for the conclusion that the union has lost dues and fees
because of the unlawful conduct. Supra at 889. Also, the court of appeals in
the Heck's case has apparently rejected the Board's view that Sec. 302 of the
Act would preclude the Board from compensating a union for lost fees and
dues man appropriate case involving employees who had not signed a dues-
checkoff authorization. Food Store Employees Union, Local No. 347,
Amalgamated Meat Cutters and Butcher Workmen of NorthAmertca, AFL-
CIO v. N.L.R-B., 476 F.2d 546, fn. 9 (C.A.D.C., 1973).
27 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
28 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.'
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF TIM
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Local No . 749, International Brotherhood of Boiler-
makers, Iron Shipbuilders , Blacksmiths , Forgers and
Helpers of America, AFL-CIO, as the exclusive
bargaining representative of the employees in the
bargaining unit described below, or with any other
union which hereafter may become the duly designated
majority representative of the employees, by refusing to
provide information to the union necessary and
relevant for effective collective bargaining or, by
unilaterally, and without the consent of the union,
repudiating, modifying, or terminating during its
effective term any collective-bargaining contract en-
tered into between us and the representative of our
employees, nor will we refuse during the term of any
such contract to abide by the terms and conditions of
the contract relating to rates of pay, hours, or other
conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
The appropriate bargaining unit is:
All of our employees performing work in manu-
facturing, fabricating, contract and repair shop,
excluding all other employees, guards and super-
visors as defined in the Act.
CALIFORNIA BLOWPIPE &
STEEL COMPANY, INC.