Carpenters, Local No. 515

National Labor Relations Board - Board Decisions

Mar 5, 1971

188 N.L.R.B. 832 (N.L.R.B. 1971)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters & Joiners of
America, Local Union No. 515 (G .E. Johnson
Construction Co., Inc .) and John W . Huber. Case
27-CB-543
March 5, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND KENNEDY
On May 21, 1970, Trial Examiner James R. Hem-
ingway issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent' had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision . Thereafter, the
Respondent and the General Counsel filed exceptions
to the Trial Examiner's Decision and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
The Respondent and G.E. Johnson Construction
Co., Inc. (sometimes referred to herein as the Compa-
ny), were, at all times material, parties to a collective-
bargaining contract containing a union-security
clause which in part read as follows:
When an employee fails to tender to an authoriz-
ed agent of the Union such initiation fees or peri-
odic dues as are required for Good Standing
Membership, the Employer will, upon written re-
quest from the Union, dismiss the employee at
the close of the shift during which a said written
request is furnished by the Union to the employ-
er.
The complaint alleges that the Respondent caused or
attempted to cause the Company to discharge John
W. Huber for nonpayment of dues, and that the Re-
spondent thereby violated the Act since Huber was
employed outside the bargaining unit and hence was
not subject to the above-quoted contractual clause,
and also since the Respondent required Huber to pay
certain assessments before it would accept his "peri-
odic dues." Concluding that the Respondent sought
1 Also referred to herein as Carpenters
Huber's termination because of nonpayment of as-
sessments as well as dues,' the Trial Examiner found
that the Respondent hid caused the discharge of Hu-
ber in violation of Section 8(bX2) and (1XA). We do
not agree that a violation has been established by the
evidence.
The facts are not in substantial dispute and are fully
set forth by the Trial Examiner. Briefly, the Company
is a contracting firm engaged in the construction of
various buildings. Huber began his employment with
the Company as a carpenter in March 1969, working
on the construction of a Methodist Church in Colora-
do Springs, Colorado. Upon the completion of the
Methodist Church job, Huber was transferred by the
Company to work in the construction of the First
Christian Church, also in Colorado Springs, where he
worked under the supervision of Ted Langowski, a
supervisor or foreman. It is uncontested that Huber
was often in arrears in the payment of his dues and
certain regularly required assessments , and that he
objected to both the amounts of the dues and the
existence of the assessments . It is also clear that such
delinquency is not uncommon among Respondent's
members.
On Thursday, November 20, 1969, Respondent's
financial secretary and business representative, Glen
Sweetser, went to the Christian Church construction
site where Huber was working and asked Huber for
his working card, told Huber he had better have
a card or " . . . I'll put you off the
job," and told Huber to pay his dues by the next day
or he would pull him off the job. Sweetser also talked
to Langowski that day and warned Langowski of his
own dues arrearage. He further told Langowski that
he did not know what he would do but that it looked
like, if he did not get Huber squared up, he might have
to remove him from the job.
Sweetser did not appear at the Christian Church
jobsite on Friday, November 21, and Huber worked
that day apparently without incident. Huber did not
work on Monday, November 24, but Sweetser went to
the jobsite and spoke to Langowski. Sweetser told
Langowski that he had with him a letter requesting
that the Company dismiss Huber at the end of work
that day because of his failure to pay his union dues.
He told Langowski if Huber did not come in to pay
up he was going to take Huber off the job.
The aforementioned collective-bargaining contract
requires that such letters be delivered to the superin-
tendent or foreman (in this case Langowski), to the
employer (Johnson), and to the affected employee
(Huber). Both Langowski and Sweetser testified that
2 In view of our conclusions, herein , we shall not pass on the issue of
whether or not Huber , as a foreman or general foreman was within the unit
covered by the above-mentioned collective-bargaining contract and could be
required to pay dues dung a time when he was acting as such.
188 NLRB No. 115
CARPENTERS , LOCAL NO. 515
Sweetser never gave Langowski a copy of the letter.
It is clear that Sweetser never gave Huber a copy of
the letter. Finally, there is no record evidence to sug-
gest that Sweetser ever delivered or mailed a copy of
the letter to Johnson.
The next day, when Huber appeared at the jobsite,
Langowski told him that Sweetser was going to pull
him off the job and advised Huber to go see Gil John-
son who had hired Huber. Huber replied that he
would go directly to Sweetser instead. Upon reaching
the Union hall, Huber found Sweetser and they en-
gaged in a heated argument . Huber left and there-
upon filed the charge which is the basis for this
proceeding.
Thus, it is clear from the facts as found by the Trial
Examiner that Sweetser twice warned Langowski and
once warned Huber that he would pull Huber off the
job if he did not pay his dues, but always phrased such
warnings prospectively, each time giving Huber an-
other opportunity to pay his dues and avoid that even-
tuality. Sweetser further told Langowski that he had
a letter prepared calling for Huber's discharge, but,
significantly, did not deliver it. Langowski, when he
spoke to Huber on November 25, merely told Huber
of Sweetser's warning and advised him to see John-
son, his employer, neither expressly nor impliedly in-
dicating that Huber was discharged. In these
circumstances , we perceive nothing to support a con-
clusion that the Respondent directly or indirectly ever
requested or demanded that the Company discharge
Huber or that the Company ever did in fact discharge
him. The most that can be said is that the Respondent
warned that if Huber did not become current on his
dues he would be "pulled off the job" in the future,
and that Langowski told Huber to see Johnson con-
cerning Sweetser's warning. Assuming that such a de-
mand by the Respondent was imminent, and that the
Company would have acquiesced, Huber himself left
the Company's employ before the Respondent had
taken any action actually to request that the Compa-
ny effect his termination.
In sum , we conclude that the General Counsel has
not sustained his burden of establishing that any vio-
lation of Section 8(b)(2) or (1)(A) occurred' Accord-
ingly, we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
3 Iron WorkersLoca1433, International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO (Riverside Steel Construction), 169
NLRB 667.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
833
JAMES R. HEMINGWAY , Trial Examiner : On November 25,
1969, John W. Huber, an individual , filed a charge against
United Brotherhood of Carpenters & Joiners of America,
Local Union No. 515, herein called the Respondent, alleg-
ing a violation of Section 8(b)(2) of the National Labor
Relations Act, as amended , 29 U.S.C. Sec . 151, et seq.,
herein called the Act. Upon such charge , a complaint issued
on January 30, 1970, alleging that Respondent had caused
or attempted to cause the employer, G.E. Johnson Con-
struction Co., Inc., to discharge said Huber because he had
not paid dues to the Respondent during a period when he
was not obligated to pay or because Huber had failed to pay
assessments which were not art of the periodic dues, in
violation of Section 8(bxl)(A) and (2) of the Act.
Respondent's answer, filed on February 5 , 1970, denied the
alleged unfair labor practices.
Pursuant to notice ,a hearing was held at Colorado
Springs , Colorado, on April 2, 1970, before me. At the close
of the hearing , the parties requested and were given time
within which to file briefs, and subsequent ly this time was
extended to May 11, 1970, on which day briefs were re
ceived from the General Counsel and from the Respondent.
From my observation of the witnesses and upon the en-
tire record in the case, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The complaint alleges , and the answer admits , that G. E.
Johnson Construction Co., Inc ., herein called Johnson, is a
corporation duly organized under and existing by virtue of
the laws of the State of Colorado , with a principal place of
business in Colorado Springs , Colorado , and that in the
course and conduct of its business operations, Johnson pur-
chases goods and materials valued in excess of $50,000
which goods and materials are delivered and transported
directly to its place of business in the State of Colorado from
points and places in States of the United States other than
the State of Colorado.
There is no issue as to jurisdiction and I find that Johnson
is engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to assert juris-
diction in this case.
II THE LABOR ORGANIZATION
The Respondent is a labor organization admitting to
membership , among others, men who are employed as car-
penters . There is no issue but that the Respondent is a labor
organization within the meaning of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Collective-Bargaining Agreement and the Union's
Practices
At all times material hereto Johnson and the Respondent
were parties to a collective -bargaining agreement which
contained a provision for a union hiring hall and for union
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security in the customary form in the construction industry.
Among other provisions in this agreement is one that re-
wires foremen and general foremen to be members of the
Union in good standing ., Both are , by the agreement, per-
mitted to work- with tools of the trade . Among other pro-
visions of the union-security clause is a provision that
"When an employee fails to tender to an authorized agent
of the Union such initiation fees or periodic dues as are
required for good standing membership , the Employer will,
upon written request from the Union , dismiss the employee
at the close of the shift during which a said written request
is furnished by the Union to the employer." The aforesaid
request is required by the agreement to be made in tripli-
cate , with one copy to be mailed or delivered to the superin-
tendent or foreman of the employer in chaige of the
particular project upon which the delinquent employee is
e'rnployed , one copy to be mailed or delivered to the em-
ployer at its principal place of business , and a third copy to
be mailed or delivered to the delinquent employee . By this
agreement , the Respondent is not to invoke the provision
for termination unless it has available an adequate replace-
ment for the delinquent employee.
Under the Union's rules , a member must pay all fines
and assessments before he is permitted to pay his dues.
Since 1957 , when the union ' business hall was constructed,
the Union has levied an assessment of $1 or more per month
toward principle and interest mortgage payments and for
maintenance of the buildin For a time in 1969 , the rate of
assessment was raised to $1 -but was lowered again to $1 in
November . Members who are paid up in their dues are
issued a current working card . Monthly dues and the special
assessment are payable on the first of the month . If a man
is delinquent in 2 months ' dues , he is sent a notice in the
middle of the third month notifying him that he will lose
certain privileges that go with membership if he does not
pay before the end of the month . If he fails to pay his dues
for the third month before the end of that month, he cannot
regain the lost benefits for another 3 months . Dues were
payable on the first of the month , but often they were not
paid until the end of the month.
B. Huber's Employment and Dues Status
Huber started working for Johnson as a carpenter in
March 1969, on what was known as the Methodist Church
job. After he had worked for about 2 weeks, Johnson put
uber in charge of the work and put him on a salary. Huber
testified that his title was superintendent. Part of the time
he had only carpenters under his direction with no interven-
ing foreman and part of the time there were subcontractors'
employees and their foreman under him as well. Work on
that job was concluded somewhere along toward the end of
October or early November, except for final approval. How-
ever, Huber continued to be paid the same weekly salary of
$210. In early November 196-9, Huber was working with his
tools on another church construction job, the First Christian
Church. On November 13, while workuig there, Huber re-
fused to sign a steward's report, which I infer was required
to show who was on the job. Apparently, Huber considered
himself a superintendent, although he was not then super-
vising any employees?
i Sweetser testified that this rule was in the "international agreement " I
deduce that he meant the constitution of the International Union
2 He testified that he was superintendent of a job called the Sunny Rest
Home. However, he had no employees under him on that Job at the time and
was just doing carpenter work by himself at that location
C. Causing or Attempting to Cause Discharge of Huber
On November 20, 1969 , Glen Sweetser, the financial sec-
retary and business representative of the Respondent, went
to the Christian Church job and asked Huber to show his
working card . Huber replied , "What if I don't have one?"
Sweetser responded , "You'd better have one or I'll pull you
off the job .' Huber became angry and replied , "You can't
do that . I'm a superintendent for Johnson ." Sweetser said
that he could do it and he could prove it. Huber told him
to go ahead and prove it. At this, time , Huber was in arrears
in his dues for September and October and owed for No-
vember dues, for which he would be in arrears on December
1. Huber testified that he went to Sweetser 's truck with
Sweetser and that the latter showed him a provision regard-
ing the hiring of foremen who belong to the Union , reading:
Anyone other than the Employer or his direct repre-
sentative giving instructions to the carpenters on the
job shall be termed a General Foreman or a Foreman,
and shall receive General Foreman's or Foreman's pay.
General Foreman or Foreman may be a workin g fore-
man and must be a journeyman carpenter and shall be
a member in good standing.
Sweetser told Huber, "You par upp your dues before tomor-
row or I 'll pull you off the job. ' On that same day, Sweetser
also talked to Ted Langowski , the superintendent , or fore-
man, of the First Christian Church job that Huber was
working on , told Langowski that he, too , was behind in his
dues , and asked him to come in and get squared up. Lan-
gowski wa s in arrears for the same period as Huber. While
talking with Langowski, Sweetser , according to his own
testimony, told him that he did not know what he would do
but that it looked like , if he did not pet Huber squared up,
he might have to remove him from the job.
Huber worked on Friday , November 21, 1969 , but Sweet-
ser did not appear at the jobsite that day. On Monday,
November 24, Huber did not work because he was attend-
ing to a personal matter . On that date , Sweetser went to the
jobsite looking for Huber but, not finding him, he spoke
with Langowski . Sweetser had with him a letter which he
referred to as a "tramp letter" calling for the termination of
Huber at the end of the day's shift . Although both Lan-
goswki and Sweetser testified that Sweetser did not show the
letter to Langowski , Sweetser told Langowski that he had
the letter and was supposed to give one to Huber, one to
Langowski as superintendent or foreman , and one to John-
son. Langowski told Sweetser not to give the letter to him
because he had not hired Huber and could not fire him. He
told Sweetser to deliver the letter to Johnson 's office . Sweet-
ser was not asked if he had done so, perhaps because he had
given the impression that the rules required that he had to
deliver the letter to the employee first . He testified that this
rule was contained in the collective -bargaining agreement.
In that agreement , nothing is said about delivering the letter
first to the employee . It just requires delivery to the superin-
tendent or foreman , to the employer at the latter's principal
place of business in Colorado , and to the employee , listing
them in that order. Sweetser testified that he was going to
hold the letter "until I had made contact with Brother Hu-
ber on that date or some future date ...." However, he did
3 Sweetser was asked if anyone of the three (superintendent , employer, or
employee) had seen the letter and he answered , "Not to my knowledge, no."
This could have been his answer even if he had delivered or mailed a copy
of the letter to Johnson's office However , Sweetser testified, "Well, I would
have given Mr Huber a chance to get in and take care of his dues before
I delivered the letter , I will guarantee you this " The latter certainly suggests,
if it does not expressly say, that the letter had not yet been delivered to
Johnson, but he did not so indicate to Langowski
CARPENTERS , LOCAL NO. 515
tell Langowski the contents of the letter and, according to
his own testimony, said that, if Huber did not come in to
pay up, he was going to take him off the job.
The letter, itself, exclusive of the Respondent's letterhead,
was introduced in evidence. It is a form letter with blanks
filled in. In this case, it reads:
Attention:
This letter will serve as notice and request to dismiss
John Huber Who is employed as a superintendent for
your company at the end of this shift 11-24-69.
John Huber has been contacted by me on several
occasions to come in and get paid up and he has failed
to do so. He owes this Local Union the sum of $50.25
for arrearage in dues Sept. Oct. & Nov.
This man has been employed by your company for
a period of time which exceeds the time as allowed by
our Collective Agreement under Article VLL
Thanking you in advance for your cooperation in the
above matter, I am
Very truly yours,
[s] Glen J. Sweetser
Glen J. Sweetser, F.S. & B.R.
When Huber came to the First Christian Church job on
the morning of Tuesday, November 25, he was met by
Foreman Langowski, who was directing all the workmen to
park away from the property because he was having con-
crete poured that morning. Huber parked and then returned
to speak with Langowski. Langowski told Huber that
Sweetser was looking for him and that Sweetser was going
to pull him off the job. He told Huber about the letter that
Sweetser had brought with him the day before and suggest-
ed that Huber should talk with Johnson. Neither Langowski
nor Huber testified that Langowski had told Huber what
Langowski had told Sweetser regarding delivery of the letter
to Johnson rather than giving it to Langowski, but neither
Huber nor Langowski appeared to have that clear a memo-
ry of everything that was said. It would seem probable that
Langowski would have related to Huber what he had told
Sweetser the day before about delivering the letter to John-
son and that Langowski had inferred that Sweetser had
done so and that this was the reason why he had suggested
to Huber that he go talk with Johnson. In the absence of
testimony to that effect, however, I do not draw such an
inference . In any event, Huber said that he would go direct
to Sweetser and talk with him. This would be consistent with
an understanding that Huber was not being permitted to
work, for if Huber was, in fact, being laid off for nonpay-
ment of dues, his best course would have been to talk with
Sweetser first rather that Johnson, who would, in all proba-
bility, have told Huber to get his dues straightened out.
At the Respondent's office, Huber berated Sweetser for
pulling him off the job and said that Sweetser was causing
him a lot of trouble. Sweetser replied that he was glad he
could cause Huber trouble. Huber told Sweetser that he was
unable to pay his dues in full but that his wife had mailed
a check on November 21. Huber conceded at the hearing
that the check (for his September dues) had not been mailed
that early .4 Huber also told Sweetser that he would bet that
Huber first testified that the dues had been mailed on the 20th, but he
corrected this to the 21st His affidavit said that it had been mailed on
November 23, and Huber then testified that that must have been correct The
check was for dues, the special assessment of $2, a fee of $4 50 for a D.C
card for each of 3 months and $2 for a B .T C. (building trades) card for the
last quarter of the year. It was received by the Union sometime on November
25. According to the tramp letter that Sweetser had prepared, the total sum
owed was $50 25, of which amount the sum of $29 25 was for dues
835
20 percent of the men working had a working card as old
as his (one for the quarter July, August, and September) and
that they were still working. Sweetser said, "So what if they
do," and Huber told Sweetser to "pull them off the job" as
Sweetser had done with him. Sweetser refused to do so.
Huber accused Sweetser of "Putting the muscle" on him and
no one else because he had had an argument with Sweetser
about the special assessment on an earlier date. After the
exchange of a few more any words, Huber left and went
to the Board's Regional Office in Denver and filed a charge.
Late that same afternoon, he returned to the
Respondent's office, learned that the check for his Septem-
ber dues had been received, and got a receipt .1
About a week later, which would have been early in De-
cember, according to Huber, he returned to see Sweetser
and to register for work. He told Sweetser that since Sweet-
ser had pulled him off ajob as superintendent that he want-
ed to be put back as such. Sweetser had Huber register on
the out-of-work list and write on his registration card the
kind of work which he sought. Huber did so. Sweetser told
Huber that, if Huber wanted to work for Johnson, he would
have to get a letter from Johnson specifically requesting that
Huber be dispatched. Otherwise Huber would have to wait
until his name came to the top of the out-of-work list. Sweet-
ser also told Huber that he would also have to pay up all
his back dues before going to work. At that time, he owed
$34.60 delinquency for October and November and his De-
cember dues were payable. Huber told Sweetser that he did
not have to belong to the Respondent to be a superintend-
ent, but Sweetser insisted thathe did. On the following day,
Huber returned to the Respondent's office and changed his
registration for work without limiting it to su erintendent.
On December 15, 1969, Huber got a letter from Johnson
requesting that he be dispatched, and Huber took it to the
Respondent's office. The girl in the office, identified only as
Sweetser's secretary, was starting to write out a dispatch slip
but turned to Sweetser and asked him "What about the
dues?" Sweetser came over to the desk and asked Huber
about paying his dues. Huber replied that he could not pay
them then. Sweetser told Huber, 'Let's go upstairs." By this,
Sweetser intended to take Huber up to the office of the
District Council to have him apply for a letter extending the
time for payment of his dues. Huber, however, refused to go
with Sweetser and was about to leave when Sweetser told
the secretary to go ahead and write out the dispatch. Then
he asked Huber when he could pay his dues. Huber said he
might be able to pay something on them that week. Sweetser
said, "Okay." Huber took his referral slip and returned to
a job he had been on previously-the Sunny Rest Home and
worked steadily thereafter.
D. Arguments and Conclusions
The General Counsel has a dual argument to support his
contention that the Respondent violated the Act. The first
is that, while Huber was employed by Johnson as a superin-
tendent during September and October , Huber was outside
the unit and that, therefore , even though Huber continued
his membership in the Union , the Respondent had no right
to demand dues for those months from Huber as a condi-
tion of employment under its union shop agreement. In
support of this argument , the General Counsel cited United
Steelworkers of America and its Local 1070, AFL-CIO, 171
5 Huber volunteered that he had then gone to Johnson 's office . Counsel
did not, however, elicit any testimony as to what had happened there, and
there is no testimony as to whether or not Huber worked that week The
inference is that he did not
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB No. 126. Although that case supports the General
Counsel's argument that supervisors, who are in fact outside
the unit for a time and then return to it, cannot be required
to pay dues for the time that they, as supervisors, were
outside the unit, the General Counsel in his brief, fails to
explicate his assumption that Huber was outside the unit.
Is a carpenter who is employed as a job superintendent
or foreman automatically excluded from the unit? The title
of job superintendent is not used in the collective -bargain-
ing agreement except in reference to the service of a request
to terminate an employee for nonpayment of dues. Respon-
dent claims that Iiuber was a foreman or general foreman
regardless of the title of superintendent which he used. Un-
der the collective-bargaining agreement, a construction em-
ployer hires, through the Respondent's hiring hall, not only
carpenters to work with their tools but also carpenters to
serve as foremen or general foremen , who may or may not
work with their tools, although they are permitted to do
under the Respondent's agreement. The applicable lan-
guage of the article VI of the collective-bargaining agree-
ment reads:
(C) General Foreman and Foreman
Anyone other than the Employer or his direct repre-
sentative giving instructions to carpenters on the job
shall be termed a General Foreman or a Foreman, and
shall receive General Foreman 's or Foreman's pay.
General Foreman or Foreman may be a working fore-
man and must be a journeyman carpenter and shall be
a member in good standing.
The General Foreman or -Foreman shall be a compe-
tent journeyman carpenter and will direct the work
under the supervision of the Employer or the superviso-
ry employee in charge of the work . .
As I understand the Respondent's practice , the title of job
superintendent is not the same as a "direct representative"
of-his employer in the sense that term is used in the collec-
tive-bargaining agreement , although those quoted words
(from the first paragraph above) may or may not be intend-
ed to be the same as 'the supervisory employee in charge
of the work" (as used in the second paragraph above).
On the Methodist Church job , Huber was not working
with his tools during September and October . But there was
no foreman between him and the carpenters under his su-
pervision . He, himself , gave the men their orders . Under the
agreement , this would appear to make him the foreman.
Although Huber supervised the work and gave directions to
the subcontractors foreman , when there was one, which
would place him in the position of a general foreman, as that
term is used in the agreement, his salary of $210 a week was
not equal to the contract rate for general foremen and was,
in fact, less than the then current contract rate for foremen.
On such evidence , I conclude that Huber was either a fore-
man or general foreman on the Methodist Church job, de-
pending on whether or not, at any given time , there were
other foremen on the job to whom he gave directions. Since
foremen , under the collective -bargaining agreement, must
be journeymen enters (a classification included within
the bargaining unit and since the wage rates of carpenters
who act as foremen or general foremen are covered by the
collective-bargainingg agreement, I conclude that Huber was
at all times material hereto within the collective -bargaining
unit and was therefore , by its terms , required to be a mem-
ber of the Respondent in good standing as a condition of
employment under the Respondent 's lawful union shop
agreement.
Under Section 14 of the Act, foremen may be members
of a union . Although, under that section, an employer is not
compelled to consider supervisors as employees within the
meaning of the Act, there is nothing in the Act which specif-
ically prohibits an employer from voluntarily considering a
supervisor as an employee and including him in a collective-
bargaining unit and agreement. Furthermore, although such
inclusion was once held to result in a violation of Section
8 of the Act in Honolulu Star Bulletin, Ltd, 123 NLRB 395,
the Board subsequently dismissed that case in 126 NLRB
1012, following a reversal and remand by the Ninth Circuit
Court of Appeals in 274 F.2d 567, for a reason not entering
into the instant case .6 So far as I know, no subsequent
decision has passed on this point in connection with the
inclusion of a foreman in the appropriate unit of nonsuper-
visory employees or in connection with a termination of a
foreman for nonpayment of Union dues .7 Although. the
General Counsels argument raises a problem whic, if
posed alone, would have to be decided, I find it unnecessary
to pass on this contention of the General Counsel, because
I find merit in his alternative argument.
The General Counsel's second argument is that (even if
his first argument is not sustained) the Respondent was
causinf or attempting to cause Johnson to terminate
Huber s employment because of nonpayment, not merely of
dues, but also of a special assessment . A discharge caused,
or attempted to be caused, pursuant to a union-security
clause of a collective-bargainingg agreement for nonpayment
not only of dues but also of fines or assessments is, it has
already been held by the Board, a violation of Section
8(b)(2) and (1)(A) of the Acts It would make no difference
in this case whether or not Huber had tendered his dues
without a tender also of his assessments , because the Re-
spondent , under its rules, will not accept a tender of dues
without inclusion of the assessment, and a futile act (tender
of dues alone) will not be required.9 The fact that the assess-
ment was for financial obligations of the Respondent (i.e.
payment of the mortgage loan, interest, and costs of mainte-
nance of the Respondent's building) does not alter the case,
since such funds are not essential to enable the Respondent
to carry out its functions as bargaining representative .10This
argument of the General Counsel would, therefore, be good
if the Respondent, in fact, caused or attempted to cause
Johnson to terminate Huber 's employment.
The Respondent places its defense primarily on the argu-
ment that the evidence does not establish that the Respon-
dent, in fact, caused, or attempted to cause , Huber's
termination . Since the tramp letter p ared by Sweetser
was not delivered to anyone so far as the evidence shows,
6 The illegality was found by the Board to be in the incorporation, by
reference , of the Union's bylaws and rules . The contract contained a saving
clause which the Board held to be ineffective because it did not point up the
parts of the rules which would be inapplicable . The reversal by the court was
on the latter point.
Cases are to be found in which a union violates the Act when the union
attempts to control the foreman's acts as a supervisor . San Francisco -Oakland
Mailers' Union No. 1$ ITU, 172 NLRB No. 252; and see Timber Laminators,
Inc., 130 NLRB 1301, and also Nassau and Suffolk Contractors Association,
Inc., 118 NLRB 174. But the problem of a conflict of duties is not involved
here.
6 Local 959, International Brotherhood of Teamsters etc (RCA Service Com-
pany), 167 NLRB No. 148 ; Peerless Tool & Engineering Co., I I I NLRB 853;
Millwrights ' Local2232, 122 NLRB 300; Tom's Monarch Laundry & Cleaning
Company, Inc., 161 NLRB 740, 746.
9 N. L. R. B . v. International Association of Machinists, Local No. 504 (A FL)
203 F.2d 173 (C.A. 9); International Longshoremen's and Warehousemen's
Union, 172 NLRB No. 227.
10 Local No. 959, International Brotherhood of Teamsters, etc., 167 NLRB
No 148.
CARPENTERS , LOCAL NO. 515
Respondent claims that there is no evidence of an actual
request to discharge Huber and that the preparation of the
tramp letter was mere preparation for an attempt and not
an actual attempt to cause Huber 's termination.
Sweetser testified that he had never, during his term of
office , requested anyone 's discharge for nonpayment of
dues and had never before even prepared a tramp letter.
However , according to his testimony , he was prepared to
serve a copy on Huber had the latter been on the job on
November 24. Sweetser and Langowski both testified that
Sweetser had neither shown the letter to Langowski nor
specifically requested Huber's discharge . On the basis of
this evidence , the Respondent argues that nothing more was
shown than preparation or plan to cause , rather than an
actual attempt to cause , Huber's termination.
Although Respondent cited no authority to support its
argument, cases are to be found where the anticipation by
an employee that he would be terminated and his ceasing
work because of that anticipation has been held insufficient
to prove a violation of Section 8(b)(2) of the Act." In such
a case , however, the employer is not a party to the termina-
tion at all.
But a causal relation does exist if the employer acquiesces
in the union 's assertion that an employee cannot work until
he has paid his dues , 12 and the facts of the instant case, I
find, support a conclusion that the employer sufficiently
participated in Huber's cessation of work to find a causing
of termination by the Respondent . Sweetser told Langowski
as early as November 20 that , if Huber did not pa his
obligation to the Respondent he might have to "pull' Huber
off the job . He told- pLangowski at the same time that he
would better pay what he owed too. Since Langowski did
so, he knew that Respondent required payment of assess-
ments as well as dues as a condition to being permitted to
work.
When Sweetser came to the job on November 24 with a
prepared letter requesting Huber's discharge and told Lan-
gowski he had it and what was in the letter , Sweetser was
giving Langowski to understand that he was "pulling" Hu-
ber off the job . Technically , to be in compliance with the
collective -bargaining agreement , the Respondent was sup-
posed to serve copies of the letter on three people . But I infer
that Sweetser would have served such a copy on Langgowski
on November 24 had Huber actually been on the job that
day. He might even have done so that day if he was told that
Huber would be back the next day but for the fact that
Langowski told Sweetser to give the letter to Johnson in-
stead of to him. Because of this statement of Langowski, I
deduce that when Sweetser departed, he left Langowski with
the impression that Sweetser would deliver the letter to
Johnson and that the Respondent would not permit Huber
to work unless he first paid his "obligation" to the Respon-
dent . That this was, in fact , Langowski's impression is evi-
dent from his notifying Huber on the morning of November
25 that Sweetser was looking for him and from his sugges-
tion to Huber that he see c Johnson . This was as much
as to say that , unless Huber could get Johnson , personally,
to help him , or unless he cleared with Sweetser , Huber was
through working, and he could not work on the First Chris-
tian Church 'ob. By his conduct, I find, Langowski effec-
tively kept Huber off the job and acquiesced in Sweetser's
decision to pull Huber off the job.
Ex gr., Iron Workers Local 433 etc., 169 NLRB No. 87.
12 Teamsters, Chauffeurs, Warehousemen, etc, Local 182 (S A Scullen Co.),
164 NLRB 234; Local Union No 742, United Brotherhood of Carpenters and
Joiners of America (J.L. Simmons Company, Inc.), 157 NLRB 451, enfd. 377
F.2d 929 (C.A.D.C.).
837
Although Langowski testified that he told Sweetser that
he had not hired -Huber and so could not fire him , what he
told Sweetser and what his actual authority was are two
different things. Perhaps Langowski could not keep John-
son from using Huber on other jobs ; so, in that sense, Lan-
gowski could not fire him; but as job superintendent,
Langowski had apparent authority to keep Huber from
working on the First Christian Church job, and he effective-
ly exercised this authority by telling Huber to go see John-
son, because he knew that the Respondent would not permit
Huber to continue working there until Huber had paid his
debt to the Respondent.
Langowski also testified that he had expected Huber to
go to the Respondent's office , pay what he owed , and return
to the job the same day . Even if this were the fact, Langow-
ski knew that the Respondent would not give Huber the
requisite working card to permit him to continue working
until Huber had paid his obligation , which included assess-
ments as well as dues , to the Respondent . The result was the
same whether Huber lost an hour's work or several days' or
weeks ' work. By Langowski's acquiescence in the
Respondent's enforcement of the union shop agreement,
Huber was effectively removed from the job until he had
paid what the Respondent required before it would permit
him to return to work . That this was the Respondent s ur-
pose and that it had its effect is even more apparent from
the fact that, even after Huber paid the Respondent's Sep-
tember charges , the Respondent required him to register on
the out-of-work list and get a written request from Johnson
for his services before it would permit him to return to work.
Now, if the Respondent had required payment only, of
Huber's dues and nothing more , it would have kept within
the limits authorized for union -security provisions of a col-
lective-bargaining agreement under the Act. However, since
it demanded additional sums which are not within the
meaning of the phrase "periodic dues and initiation fees
uniformly required" as worded in the Act, the Respondent
cannot justify its act of causing Huber to be removed from
his employment at the First Christian Church job . Accord-
ingly , f conclude and find that the Respondent has engaged
in unfair labor practices within the meaning of Section
8(b)(2) and ( 1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's oper-
ations described in section I, above , have a close , intimate,
and substantial relation to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Since it has been found that the Respondent has violated
Section 8(b)(1)(A) and (2) of the Act, I shall recommend
that the Respondent cease and desist from engaging in the
same or any like or related conduct and post a notice which
I find will dissipate the effects of its unfair labor practices.
I shall further recommend that the Respondent make John
W. Huber whole for any loss of pay he may have suffered
by reason of the discrimination caused against him by pay-
ment to him of a sum of money equal to the amount he
would normally have earned as wages from November 25,
1969, the date of the discrimination against him, until his
reinstatement by Johnson, less his net earnings elsewhere
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during said period. The said sum shall be computed in the
manner described in F. W. Woolworth Co., 90-NLRB 289,
together with interest on said sum at the rate of 6 percent
per annum in accordance with the Board's policy as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. G. E. Johnson Construction Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By causing Johnson to discriminate against John W.
Huber in violation of Section 8(a)(3) of the Act, the Respon-
dent Union has engaged in, and is engaging unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A)
of the Act.
4. The unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommended Order omitted from publication.]