Eastern Missouri Contractors' Association

National Labor Relations Board - Board Decisions

Dec 31, 1969

180 N.L.R.B. 509 (N.L.R.B. 1969)

EASTERN MISSOURI CONTRACTORS' ASSN. 509
Eastern Missouri Contractors' Association and
Carpenters District Council of St. Louis and
Vicinity, AFL-CIO and Congress of Independent
Unions, Local 77, Party to the Contract
E. Smith Plumbing Co. and Midwest Contractors'
Association and International Brotherhood of
Electrical Workers, Local 1, AFL-CIO and Local
36, Sheet Metal Workers International
Association , AFL-CIO
Congress of Independent Unions, Local 77 and
Carpenters District Council of St. Louis and
Vicinity, AFL-CIO and Eastern Missouri
Contractors' Association, Party to the Contract
Congress of Independent Unions, Local 99 (E. Smith
Plumbing Co. and Midwest Contractors'
Association ) and International Brotherhood of
Electrical Workers, Local 1, AFL-CIO and Local
36, Sheet Metal Workers International
Association , AFL-CIO. Cases 14-CA-3853,
14-CA-3901, 14-C A-3902, 14-C B-1364,
14-C B- 1386, and 14-CB- 1 387
December 31, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
14-CB-1364, 1386, and 1387, be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The initial charges
herein involving EMCA' and Local 77 were served on
them on December 29, 1965, and those involving MCA'
and Local 99 were served on them on February 24, 1966.
A consolidated complaint, which encompassed the instant
cases, as well as others involving other respondents, issued
on April 30, 1968. On November 27, 1968, an order was
entered severing the instant cases from such other cases.
The proceeding was heard on March 10 and 12, 1969.
EMCA, MCA, and E. Smith' failed to answer the
complaint although duly served therewith, and, while
representatives of all three such respondents appeared at
the hearing, it was only for the purpose of testifying as
witnesses for the General Counsel. The issues litigated
related to alleged unlawful assistance of Locals 77 and 99
by EMCA and MCA, respectively, and of Local 99 by E.
Smith, and to alleged restraint and coercion of employees
by those locals.
After the hearing briefs were filed by the General
Counsel and the Charging Parties.'
Upon the entire record,' including observation of the
witnesses, the following findings and recommendations are
adopted:
L JURISDICTION - THE "DEFAULT" ISSUE
On July 17, 1969, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged and were not engaging in certain unfair
labor practices alleged in the consolidated complaint
and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Trial
Examiner 's Decision . Thereafter, the General
Counsel and the Charging Parties filed exceptions to
the Trial Examiner 's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner' s Decision , the exceptions, the briefs, and
the entire record in this proceeding , and hereby
adopts the findings , conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the consolidated complaint in Cases
14-CA-3853, 3901, and 3902, and Cases
The complaint alleges as follows as to EMCA:
1. That it has been at all material times an association
of employers in the construction industry, and that it
exists in part for the purpose of, and has been engaged in,
representing its members in the negotiation and execution
of collective bargaining contracts with the union
representing employees of its members (Local 77).
2. That its members have at all material times engaged
in business as building contractors in and near Union,
Missouri, and annually receive directly or indirectly from
out-of-State points goods and materials valued at more
than $50,000.
3. That EMCA is an employer engaged in commerce
under the Act.
As noted above, EMCA filed no answer to the
complaint. However, Local 77 filed an answer in which,
while admitting the allegations referred to in paragraphs 2
and 3, above, denied those in paragraph 1, above, thereby
raising an issue as to whether EMCA exists for the
purpose of, and has represented its members in,
negotiating and executing union agreements.
Section 102.20 of the Board's Rules and Regulations
provides that, where no answer to a complaint is filed, all
the allegations thereof "shall be deemed to be admitted to
be true and shall be so found by the Board, unless good
cause to the contrary is shown."
Here, the General Counsel, while moving at the close of
the hearing for "a default judgment" against both
Associations, adduced evidence on the merits and
' Eastern Missouri Contractors' Association.
'Midwest Contractors' Association.
'C. Smith Plumbing Co.
'There was also received after the hearing a motion by the General
Counsel to amend the complaint. No opposition thereto was filed. The
motion is hereby granted.
'For corrections of the transcript, see the order of June 25, 1969
180 NLRB No. 83
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested that any remedial order against the Association
be "in line with the evidence" adduced. No action was
taken on the foregoing motion at the hearing. It is now
disposed of in accordance with the ensuing comments.
While it has been stated that a Trial Examiner has
authority to grant a summary judgment against a
respondent who fails to file a timely answer,' and may do
so, even though a timely answer has been filed, as here, by
another respondent in the same case, ' the Board has
affirmed the refusal of a Trial Examiner to grant
summary judgment on the basis of an untimely answer,
and his dismissal of the case after hearing the merits.'
Moreover, in both Liquid Carbonic, supra, and Verve
Records , supra , while asserting its power to enter a
summary judgment, the Board, nevertheless, considered
the evidence adduced before the Trial Examiner and
sustained the complaint , inter alia , on the basis of such
evidence.
Here, evidence was adduced by the General Counsel in
support of the jurisdictional and other allegations of the
complaint. The General Counsel's motion for a default
judgment might be deemed a request that the violations by
the employer-respondents be found without considering
the evidence, while at the same time proposing that the
remedy be fashioned in the light of such evidence.
However, as noted below, in certain respects the evidence
introduced militates against violation findings. Even if one
accepts the limited purpose for which the evidence was
offered, it would seem that the disclosure by such evidence
that there was no violation by a particular
employer-respondent would be a consideration relevant to
the appropriateness of any remedial order against that
respondent. As it is not entirely clear that the General
Counsel wished to foreclose consideration of the evidence
from that standpoint,' and as it would in any event be
unconscionable to issue a remedial order in the face of
evidence that there was no violation, I consider it proper
to consider the evidence herein insofar as it bears on the
substantive issues as well as on the matter of remedy.
Moreover, it would seem that the requirement in the
rules that all allegations of the complaint be taken to be
true in case of default by a respondent should apply, in
any event, only to allegations of fact and not to assertions
in the complaint of conclusions of law,'' and especially not
where such an assertion relates to jurisdiction," or is
controverted by another respondent whose own case
depends on the validity of that conclusion.' 2 Finally, even
as to allegations of fact, where, as here , there is a default
by one respondent but controversion thereof by another,
the general rule of law would seem to be that only the
former, but not the latter, is bound by any admission of
fact based on such default." And, there is nothing in the
Board's rule that authorizes a default by one respondent
to be treated as an admission by another respondent.
'Liquid Carbonic Corporation, 116 NLRB 795.
'See Verve Records, Inc., 127 NLRB 1045, 1049
'Star Wholesale Meats , Inc. 133 NLRB 1416. The Trial Examiner there
construed Liquid Carbonic, supra , as not requiring him to grant summary
judgment , but as merely authorizing him to do so in appropriate cases. The
Trial Examiner cited certain circumstances in extenuation of the
dilatoriness the respondent 's answer
'The General Counsel at one point expressly disclaimed any request for
relief that would not be supported by the evidence
"That is the common law rule 30A American Jurisprudence p. 298; 128
A.L R. 482 (1940); 49 CJ.S Sec 201(d).
"It is well settled that jurisdiction may not be conferred by consent This
would seem to preclude giving effect even to Local 77's express admission
that EMCA is an employer engaged in commerce under the Act
Applying the foregoing comments to the instant
jurisdictional issues, I find that the failure of EMCA to
deny that it represents its members in negotiating and
executing union contracts binds it but not the Locals, and
that as to them it was incumbent upon the General
Counsel to adduce evidence on that issue. Some evidence
to that effect was presented by the General Counsel.
While the adequacy thereof may be questioned, it will be
assumed for the purpose of this discussion that the proof
on this point was sufficient. Accordingly, it is found that
EMCA is a multiemployer association of building
contractors, and that it represents its members in
negotiating and executing collective-bargaining contracts.
Since it is not disputed that EMCA's members annually
import directly or indirectly from out-of-State points
goods valued in excess of $50,000, it is found that it will
effectuate the policies of the Act to assert jurisdiction over
EMCA.
As to MCA, the state of the pleadings and evidence
with regard to jurisdiction is essentially the same.
Accordingly, the same jurisdictional findings are made as
to it.
As to the only other employer-respondent, E. Smith,
the complaint alleges that it is a Missouri corporation,
with a principal office in St. Louis, Missouri, and has at
all times here material been operating as a plumbing
contractor in the construction industry, and, as a member
of MCA, has delegated to it authority to act as the
representative of E. Smith in collective bargaining with
Local 99. Local 99's answer admitted all the foregoing
jurisdictional allegations, except that pertaining to E.
Smith's corporate status, which was controverted. There
was no evidence on the point. However, as resolution of
this will not affect the result, it will be assumed that E.
Smith is a corporation. As it was not disputed that, at all
material times, E. Smith was a member of MCA,
delegating to it authority to bargain for E. Smith, and
since jurisdiction has been asserted over MCA, it is found
that it will effectuate the policies of the Act to assert
jurisdiction over E. Smith.
11. THE UNION - RESPONDENTS
Congress of Independent Unions, Local 77 and
Congress of Independent Unions, Local 99, herein called
Local 77 and Local 99, respectively, and sometimes
hereinafter collectively referred to as the Locals, are labor
organizations under the Act.
III. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues:
1. Whether EMCA and MCA violated Section 8(a)(2)
and (I) of the Act by reason of the fact that their
employer-members contributed financial assistance to
Local 77 and Local 99, respectively, in the form of dues
and fees paid to defray the cost of union membership of
such employers?
2. Whether Local 77 and Local 99 violated Section
8(b)(1)(A) by admitting employers to membership and
accepting their membership fees and dues?
"6 Moore's Federal Practice par 55 06 (2d ed 1966); Frow v De
LaVega , 15 Wall. 552, 554; 30A American Jurisprudence p 284.
"30A American Jurisprudence pp. 296-297, and see 4 Wigmore,
Evidence (3d ed . 1940) p . 115, where it is stated that an admission by one
defendant is not receivable as evidence against another defendant , unless
there is privity of interest
EASTERN MISSOURI CONTRACTORS' ASSN. 511
3. Whether EMCA violated Section 8(a)(2) and (1) by
entering into and enforcing a union security contract with
Local 77, which required existing employees of
employer-members of EMCA to join Local 77
immediately, and whether Local 77 violated Section
8(b)(l)(A) by maintaining and enforcing that clause?
4. Whether MCA and its employer-members, including
E. Smith, violated Section 8(a)(2) and (1) of the Act by
paying membership dues and fees to Local 99 on behalf of
their employees, and whether Local 99 violated Section
8(b)(1)(A) by accepting such payments?
A. Sequence of Events
EMCA and MCA have executed a series of contracts
with Local 77 and 99, respectively, covering employees of
the members of the two associations. The first such
contract between EMCA and Local 77, effective from
August 1, 1964, to July 31, 1966, contained the following
clause:
All employees who are now employed by any member
of the Association covered by this agreement shall
become members of the Union upon ratification of this
agreement. New employees shall be required to join the
Union after thirty (30) calendar days from the date on
which they are first employed.
The membership of EMCA ranged between 52 in 1965
and 33 in 1968, and the number of such members who
belonged to Local 77 declined from 15 in 1965 to 5 in
1968. During the same period the total membership of
Local 77 declined from 32 in 1965, to 15 in 1968. At
various times the EMCA members constituted as much as
50 percent of the total membership of Local 77, and never
less than 29 percent.
As for MCA, the record shows that it has had a roster
of about 80 members since 1965, and estimates as to the
number who belonged to Local 99 ranged from 40 to 64.
Thus, they constituted from about 15 percent to about 25
percent of Local 99's total membership of approximately
250.
In August 1965, E. Smith, a member of MCA, paid
$36 as union dues for himself and two employees.
B. Discussion
1. Employer membership in the locals
The complaint alleges that EMCA has violated Section
8(a)(2) and (1) of the Act by "contributing a substantial
amount of monthly income of Local 77 by the employer
members of [EMCA] paying fees and dues for their own
membership in Local 77." There is a like allegation as to
MCA and as to E. Smith with respect to payments by
them to Local 99, and a parallel allegation that the Locals
restrained and coerced "employees" of the Associations in
violation of Section 8(b)(1)(A) by "permitting employers
to participate in" the Locals and by receiving from them
the foregoing fees and dues.
While, as already noted, neither the Association nor E.
Smith filed an answer, the Locals did enter a denial with
respect to all the foregoing allegations as they related both
to the 8(a)(2) and the 8(b)(1)(A) violations.
a. The 8(a)(2) issue
Under the view expressed above, the factual issue as to
the employer-respondents is whether their failure to
answer may be treated as an admission of the allegation
that they have contributed substantial amounts to the
Locals in the form of payments by their members of fees
and dues in order to acquire union membership. It is clear
that such nondenial may be deemed an admission, binding
on the employer-respondents, that the Associations'
members, including E. Smith, made such payments.
Moreover, while there was no evidence that such
payments were in fact the result of any Association action
or were made by the employers for any reason other than
to obtain protection against picketing of their jobs while
working at their trade, the failure of the Associations to
deny their responsibility for such payments may be taken
to be an admission of such responsibility, binding upon
the Associations.
However, I do not deem the failure of the
employer-respondents to deny the conclusionary allegation
that their conduct violated Section 8(a)(2) and (1) of the
Act to be dispositive of that issue, particularly in view of
the denials entered by the Locals with respect to those
allegations . Where, as here, there are two classes of
respondents, each of which is charged with involvement in
the same conduct," it would be anomalous to consider as
to the one, but not as to the other, the merits of the legal
issues bearing on the propriety of such conduct. To do so
might well result in a finding that the identical conduct
was both lawful and unlawful." Accordingly, it would
seem that to preclude such an unseemly result the Board
should canvass the legal implications of the conduct here
involved in the case of the defaulting employers, as well as
in the case of the Locals, and that to put the matter in the
terms of the Board's rule , quoted above, there is "good
cause" not to take as true the instant conclusionary
allegations as to violations of 8(a)(2) and (1)."
Turning to a consideration of the merits of those
allegations insofar as they relate to the
employer-respondents , one is confronted with a problem
of statutory construction. Section 8(a)(2) of the Act
forbids employers to contribute "financial or other
support" to a union. The General Counsel contends that
"As noted above , the complaint alleges that the Locals violated Section
8(b)(iXA) by receiving the same employer payments on which the 8(a)(2)
allegation is based.
('This is not a case like that in Verve Records. supra, where there would
have been no necessary inconsistency between a finding that the defaulting
employer had discriminated against an employee and that the union had
not caused such discrimination Here , the theory of the General Counsel is
that, by the foregoing payments , the ability of the Locals to serve their
members effectively was compromised . One could hardly find that this was
true as to the making of the payments but not as to their receipt.
"In Frow v DeLaVega. 15 Wall. 552, which has been cited as the
leading case on this point, the Supreme Court stated.
If the court in such a case as this can lawfully make a final decree
against one defendant separately, on the merits, while the cause was
proceeding undetermined against the others, then this absurdity might
follow : there might be one decree of the court sustaining the charge of
joint fraud committed by the defendants, and another decree
disaffirming the said charge , and declaring it to be entirely unfounded,
and dismissing the complainant 's bill. And such an incongruity , it seems,
did actually occur in this case. Such a state of things is unseemly and
absurd, as well as unauthorized by law.
The true mode of proceeding where a bill makes a ,joint charge against
several defendants , and one of them makes default , is simply to enter a
default and a formal decree pro confesso against him , and proceed with
the cause upon the answers of the other defendants The defaulting
defendant has merely lost his standing in court. . But if the suit
should be decided against the complainant on the merits, the bill will be
dismissed as to all the defendants alike - the defaulter as well as the
others. If it be decided in the complainant 's favor, he will then be
entitled to a final decree against all.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the membership fees and dues here involved constitute
such proscribed financial support, and he cites Post
Publishing Company, 136 NLRB 273, where the employer
donated to a union the profits of a plant cafeteria and of
plant vending machines," and Jamestown Machine and
Manufacturing Company," where the employer paid his
employees for time spent in attending union meetings.
However, in both those cases the foregoing contributions
were only part of a pattern of conduct designed to foist a
particular union upon the employees or to prevent
defections to other unions. Here, however, there was no
allegation in the complaint nor any contention by the
General Counsel that the employer contributions were
part of such a pattern of assistance." On the contrary, the
General Counsel expressly disclaimed any contention that
the foregoing employer payments fomented the substantive
evils to which Section 8(a)(2) was addressed - namely,
the subversion of a union's independence in dealing with
an employer or the foisting upon employees of a minority
union. Thus, for aught that appears in the pleadings or the
record, we are dealing here with unions duly designated by
an uncoerced majority of their employee-members, which
are militantly and effectively serving such members vis a
vis their employers.20 Moreover, any inference that the
tendency or purpose of the employer payments was to
undermine the Locals' independence is negated by the
circumstances under which the payments were made as
disclosed by the evidence presented at the hearing. It is
clear from such evidence that this was not a case where
employers join a union in order to capture control thereof
or influence its policies." It is the employers, rather, who
are the captives of the Locals and it is they who need the
Locals, rather than the contrary. While there was evidence
that the Locals could survive without their
employe r-members, 22 the record indicates that the latter
joined the Locals in the belief that they could not survive
without them. For, it is clear from the evidence that we
are dealing here with small contractors, 13 who, in order to
remain competitive, need to work with their tools, and
that they are convinced from past experience that it is
impractical for them to do so without the protection
which membership in one of the Locals will afford them
against picketing by other unions in the area.24 They are
thus in no position to withdraw, or effectively to threaten
to withdraw, from such membership unless the Union, be
it Local 77 or 99, tempers its bargaining demands or
otherwise bows to their wishes.
"Cf. Koehier's Wholesale Restaurant Supply, 139 NLRB 945, 950, 953,
where the employer contributed out of its own funds 90 percent of the
union 's income.
"127 NLRB 172
"As to EMCA, the only other evidence of assistance appearing in the
record was the union security clause in EMCA's 1964-66 contract,
discussed below , and, as to MCA, the only such evidence in the record was
the fact that E. Smith , one of its members, paid dues of $24 to Local 99,
on behalf of two of his employees
"The record shows, in fact, that Local 99 has recently filed an unfair
labor practice charge against MCA for refusing to meet to negotiate a new
contract.
"While there was some evidence here that employers had attended
meetings of the Locals , there was none that they otherwise played any role
in the affairs of the Locals.
"As to the degree of dependence of the two Locals on employer
contributions , the only evidence was the testimony of Kroeter , president of
EMCA, and a member of Local 77, that it did not need such contributions
to defray its expenses, and the testimony of Libhart, the business manager
of Local 99, that, while it would need help from its parent , Local 99 could
meet its obligations even if it had no employer -members
"The record shows that some members of EMCA have no employees,
Accordingly, the issue in this case becomes whether to
adopt a literal interpretation of Section 8(a)(2) and hold
that any "financial or other support" of a union by an
employer is per se unlawful, or whether to construe that
provision so as to take into account the circumstances
under which such support was furnished. This per se
approach was long ago rejected by the Board in a case
involving the legality of a checkoff agreement under
Section 8(a)(2) of the Act.23 While the Board has often
recognized that a checkoff arrangement is a form of
support of a union by an employer, insofar as it relieves
the union of the expense and burden of collecting dues,
the Board found that the agreement in that case was not
unlawful. The Board there stated:
. . . There is nothing in the nature of a checkoff
agreement which is per se illegal under any of the
provisions of Section 8. Indeed we have generally held
that such an agreement constitutes a violation of the
Act only in those situations where it was made with an
organization that was company dominated or which for
some other reason did not represent an uncoerced
majority of the employees.
Here, as already stated, there was no allegation or
evidence that the Locals were dominated by the employers
or that they did not represent an uncoerced majority of
the employees in the bargaining unit.
Moreover, in the only case that has been found
involving the specific issue here presented, the Board
affirmed a Trial Examiner's finding that an employer did
not render illegal support to a union by joining it and
paying an initiation fee and dues for himself (as well as
two employees), upon the assurance that he would thereby
escape further picketing by another union.26
Finally, I deem it significant that, while the Board has
frequently had occasion to consider the implications under
Section 8(a)(2) of union membership by supervisors,
particularly in the construction industry, which is the one
here involved, and has imposed various limitations on
participation by supervisors in union affairs, it has never
questioned the right of supervisors to become union
members.i7 Indeed, as the Board has recognized, that right
is guranteed by Section 14(a) of the Act, which provides,
in part, "Nothing herein shall prohibit any individual
employed as a supervisor from becoming or remaining a
member of a labor organization." Such statutory sanction
of membership by supervisors in unions necessarily implies
that nothing in the Act may be construed to prohibit
supervisors from qualifying for union membership by
paying union initiation fees and dues.
and the rest have only from one to five employees. There was similar
evidence as to MCA.
"While Section 8(b)(4Xi)(A ) of the Act outlaws picketing to compel an
employer to join a union , resort to that provision is necessarily limited to
cases where it can be shown that that was the object of the picketing and
that the object was not merely to force the employer to lay down his tools
In any case, it is understandable that small contractors with limited
resources would prefer the instant protection of a union card to the risk
and delays of litigation
"Satant A Satant . Inc, 88 NLRB 816, 818
"Loney Davenport . 173 NLRB No. 39.
"Detroit Association of Plumbing Contractors 126 NLRB 1381, enfd. in
part, 287 F.2d 354 (C.A.D.C.), Nassau and Suffolk Contractors'
Association , Inc., 118 NLRB 174, 183 In those cases the only restriction
unposed by the Board on supervisors, who were not members of the
bargaining unit, was that they refrain from voting in union elections and
from otherwise taking an active part in union affairs There was no
evidence nor allegation here that the instant employers exceeded such
restrictions . See fn 21, supra.
EASTERN MISSOURI CONTRACTORS' ASSN.
It may be urged that the latitude thus extended to
supervisors to contribute to union treasuries should not be
extended to employers, since their right to join a union is
not specifically protected by Section 14(a). However, it is
clear from that subsection that Congress did not view the
payment of union fees and dues by representatives of
management as constituting per se a threat to a union's
independence, even where the unions, as in the cases cited
above, represented nonsupervisors, and, in holding in
those cases that supervisors might lawfully join such
unions, the Board indicated its concurrence with that view
The thrust of the General Counsel's contention appears
to be that it is the substantiality of the employer payments
here involved that is the gravamen of the offense. Thus, he
indicated at the hearing that there would be nothing
objectionable if the employers constituted only 5 percent
of the membership of the Locals, and, presumably, he
would on that ground distinguish Loney Davenport, supra,
which involved only one employer. The General Counsel is
thus, in effect, asking the Board to fix a numerical quota
for membership by employers in a particular union.
However, as noted above, the Board's approach to the
analogous problem of safeguarding unions against
domination by members who are supervisors has been
qualitative rather than quantitative, the Board having
placed a limit, not on the proportion of supervisors who
may join a union representing employees, but only on the
extent of their participation in the affairs of such a union.
If that treatment of the problem is feasible in the case of
supervisors , it is not clear why the same would not be true
in the case of employers. In fact, in Bottfield Refractories,
Co.," the Board dealt with the problem of employer
membership in a union by applying the same safeguards
as in the case of supervisors.i9 Such an approach will
adequately protect the interests of employees in effective
union representation while permitting employers to join
unions, where, as here, they are forced to do so as a
matter of self-preservation, and because of union
pressures.
Thus, the recommendation herein that the instant
allegations be dismissed is not to be construed as a
blanket license to employers to affiliate with unions or to
unions to recruit employers, but must be read in the light
of the special facts and circumstances of this proceeding.JO
31127 NLRB 188, enfd. 292 F.2d 627 (C A 3).
"There, the Board held that it was unlawful for dues-paying
employer-members of a union to vote in a union election
"Even if a violation were found here , it is difficult to perceive what
effective remedy could be ordered as to the Associations . Obviously, an
order that they cease to make union dues payments for their members
would be futile, since it is not the Associations but their members that are
actually making the payments . (Although it has been found, on the basis of
their failure to answer , that the Associations were responsible for their
members' contribution of union dues payments , the evidence offered by the
General Counsel for the avowed purpose of helping the Board frame a
remedy fails to disclose how this was so While, as to MCA, the record
shows that its expired 1967-69 contract with Local 99, contained a
provision authorizing members of MCA to work with the tools of their
trade only if they joined Local 99, it is clear from the evidence adduced at
the hearing that the basic reason for the union affiliation of the instant
contractors was the economic one cited above . Thus, an order that MCA
cease to include in its future union contracts any provision like the one
cited above is not likely to have any practical effect on the extent of union
affiliation among its members, so long as they need the protection of a
union card in order to work on their own jobs.)
The General Counsel proposes that the Board order the Associations to
cease recognizing the Locals . However , such an order would have no effect
on the employers' motivation for joining the Locals, and would not be
appropriate , in any event , absent a showing that the Associations assisted
the Locals to achieve or retain their majority status Lykes Bros.. Inc . of
b The 8(b)(1)(A) issue
513
The complaint, as amended, alleges that since June 28,
1965, in the case of Local 77, and August 24, 1965, in the
case of Local 99, the Locals restrained and coerced
"employees" of the Associations," in violation of Section
8(b)(1)(A), by "permitting employers to participate in"
such Locals, and receiving a substantial part of their
monthly income in the form of fees and dues paid by
employers on account of their own membership in the
Locals
Since both Locals filed answers fully controverting
these allegations , it is clear that it was incumbent upon
the General Counsel to prove his case against the Locals
on the merits. The only evidence adduced in support of
such allegations was that a substantial number of
employer-members of the Associations joined the Locals
for the economic reasons explained above, paying the
necessary fees and dues, and that some of them attended
union meetings . As already stated, there was no evidence
that they voted at such meetings or played any other role
in the affairs of the Locals.
In his brief, the General Counsel urges, in effect, that,
since the payment of the employer contributions
constituted a violation of Section 8(a)(2) because of the
danger that they would undermine the Locals'
independence, their acceptance of such payments should
be held to constitute a violation of Section 8(b)(1)(A)
because of such danger, and that there is therefore no
need to prove any resulting , actual, adverse effect on the
interests or rights of the employees. Thus, the General
Counsel tacitly concedes that there is no evidence that the
employer payments have had any adverse effects on the
Locals' capacity to serve the employees, but relies, in
essence, on the syllogism that since such payments were
per se violations of Section 8(a)(2) and (1), the Locals'
acceptance thereof per se violated 8(b)(1)(A). However, it
having been found that such payments do not constitute
unlawful assistance , there is no basis, under that
syllogism, for finding that acceptance thereof is unlawful.
Moreover, even if the employer payments were deemed
unlawful, a finding that the acceptance thereof constituted
illegal restraint of employees would go beyond any
existing Board precedent. Heretofore, the Board has found
a violation of 8(b)(l)(A) by an unlawfully assisted union
only in the situation where, with the aid of such
assistance , a minority union established a contractual
relationship with the employer, thereby frustrating the
present right of the employees to be represented by a
union chosen by an uncoerced majority," or in the
situation where the assistance consisted in granting the
union an unlawful union security arrangement, which
necessarily constituted a present restriction on the right of
employees not to join that union."
Georgia, 128 NLRB 606, 609-611.
"Presumably , reference is here intended to employees of members of the
Associations
"E.g., Bernhard-Altmann Texas Corporation. 122 NLRB 1289, 1292,
enfd . 366 U.S. 731.
The General Counsel cites A Casten, Inc, 122 NLRB 1242, for the
proposition that a union violates Section 8(b)(1)(A) by accepting employer
payments on account of employee dues. However, I construe that case as
holding only that the unions involved violated Section 8(bX2) and (1)(A) by
reason of their role in the execution and enforcement of various unlawful
union security agreements , as an incident of which the employer paid part
of the employees' dues.
"E g , Campbell Soup Company, 152 NLRB 1645.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Here, the General Counsel would have the Board go a
step further and find unlawful restraint of employees in
the exercise of their right to proper representation in
collective bargaining because of the danger that
acceptance of employer payments will disable the Locals
from affording proper representation in the future.
Logically, it seems difficult to justify basing a finding of
present union coercion of employees on some possible
future misconduct of the union in its dealings with
employers.
The General Counsel contends further, in his brief, that
the restraint and coercion inherent in the Locals'
acceptance of employer payments were enhanced, inter
a/ia, "by the fact that Employers have the right to and do
attend union meetings" and by Local 77's maintenance of
the union security clause, discussed below, which failed to
provide the statutory grace period for certain categories of
employees.
However, the Board has at least tacitly recognized the
right of dues-paying supervisors, including those of high
rank, to attend meetings of unions to which they belong,
even though they are excluded from the bargaining unit."
It is not clear why such attendance by employers,
themselves, should be deemed significantly more coercive,
either when considered by itself, or in conjunction with the
fact that the Locals were receiving dues and fees from the
employers."
As for Local 77's union security clause, that would, of
course, have no bearing on the case of Local 99.
Moreover, as found below, it was not shown that such
clause had any coercive impact during the period here
relevant, and, even if it were true that certain employees
were prematurely required to join Local 77, it is not clear
how that could have aggravated any coercive effect on
such employees of the Local's acceptance of payments
from employers. In the one case, there was involved an
abridgment of the employees' right to refrain from joining
the Local. In the other, there was arguably involved only
the employees' right to effective representation by that
union. The fact that an employee had been forced to join
the Local untimely could hardly have rendered it more
likely that the Local would be derelict in the discharge of
its responsibilities as his representative.
It will accordingly be recommended that the instant
allegations be dismissed.
2. The payment of membership dues on behalf of
employees
The complaint alleges that since on or about August 24,
1965, MCA and its members, including E. Smith, violated
Section 8(a)(2) and (1) by paying to Local 99 on behalf of
their employees membership fees and dues, and that Local
99 violated Section 8(b)(1)(A) by accepting such
payments. All these allegations were controverted by
Local 99, alone.
The only evidence in this regard was that on or about
August 24, 1965, E. Smith, a member of MCA, paid to
Local 99 $24 to cover 3 months' dues for two employees,
and made no other such payments; and, in his brief the
General Counsel relies solely on such evidence, thereby at
'See Detroit Association of Plumbing Contractors, supra; Nassau and
Suffolk Contractors ' Association . Inc., supra.
"Cf. Botffl id Refractories Co., supra. where dues-paying
employer-members of a union voted in a union election. While finding such
voting unlawful , the Board indicated no objection to such employers
attending union meetings.
least impliedly disclaiming any contention that there were
any such payments by MCA or other members of MCA
or that the Board should find such other payments by
reason of the failure of MCA to answer.
The Board has frequently held that the payment by an
employer of union fees and dues on behalf of his
employees violates Section 8(a)(2) and (1).16 Unlike the
situation in the case of payments by an employer on his
own behalf, the vice of such payments on behalf of his
employees is that it induces and encourages their joining
of the union, thereby impairing freedom of choice.
However, the payments involved in the cases last cited
were far more substantial than the $24 paid by E. Smith,
and in the Loney Davenport case , supra, the Board found
no violation where, as here, there was no other evidence of
union assistance and the amount involved was
insubstantial.
As for Local 99, while it was sufficiently shown that it
received the foregoing payments from E. Smith," no case
has been found holding that a union violated Section
8(b)(l)(A) merely by accepting such payments."
Accordingly, no violation is found here either by E.
Smith or Local 99. No such finding may be made with
respect to any other member of MCA, if for no other
reason , because no such member was named as a
respondent. And, in view of the General Counsel's
apparent disclaimer of any reliance on a "constructive"
admission by the defaulting MCA that it made such
payments," no violation by it is found.
3. The union security clause
The complaint alleges (a) that since on or about June
28, 1965, EMCA violated Section 8(a)(2) and (1) by
"entering into and enforcing a collective bargaining
agreement with Local 77 which requires employees to
become members of Local 77 as a condition of
employment immediately after the company for which the
employee works becomes party to a collective-bargaining
agreement"; and (b) that since on or about June 28, 1965,
Local 77 violated Section 8(b)(1)(A) by "continuing in
effect and enforcing" that agreement Local 77
controverted all the foregoing allegations. The only
evidence offered on this issue was the 1964-66 contract
between EMCA and Local 77. As noted above, that
contract contains a union security clause, which, while
providing a 30-day grace period for new employees,
requires that "all employees who are now employed by
any member of the Association shall become members of
the union upon ratification of this agreement." Thus, for
"Aaron Contracting Co., Inc .. 127 NLRB 1250; Jack Smith Beverages,
Inc, 94 NLRB 1401, enfd. 202 F.2d 100 (C.A. 6); Marathon Electric
Mfg. Corp. 106 NLRB 1171, ABC Machine and Welding Service, 122
NLRB 944; Western Auto . 143 NLRB 703; Frisch Cheverolet , Inc, 128
NLRB 73; Dixie Bedding Manufacturing Co, 121 NLRB 189; A Custen,
Inc.. 122 NLRB 1242.
"As already noted , Local 99 controverted the instant allegations , and the
employer-respondents ' default could not, as already explained , operate here
as an admission by Local 99. Accordingly, the only employer payments of
employee dues that Local 99 may be charged with receiving were those
actually proved by the evidence - namely , the $24 paid by E Smith.
"The only case cited by the General Counsel on this specific point is A
Custen. Inc., supra , which , for reasons noted above (fn. 32), 1 deem
inapposite.
"Such disclaimer would seem to have been dictated by the realities of
the situation . Employer-associations do not normally make payments on
behalf of their members out of association funds for any purpose , let alone
union dues. The record shows nothing about the situation of MCA that
could differentiate it in this regard from other employer-associations.
EASTERN MISSOURI CONTRACTORS' ASSN.
existing employees at the time of "ratification" the
contract fails to provide the 7-day grace period prescribed
in Section 8(f) of the Act. The record does not show the
date of execution or "ratification" of this contract but
only that it was in effect from August I, 1964, to July 31,
1966. The date of June 28, 1965, cited in the complaint as
the initial date of the violation, was presumably selected
by the General Counsel because that is the cut-off date
under Section 10(b) of the Act .40
For reasons outlined above, under the circumstances of
this case, I do not regard the failure of EMCA to answer
the complaint as an admission that it violated the Act but
only as an acknowlegement, binding only upon it, that, as
alleged in the complaint, it has since June 28, 1965,
entered into and enforced the foregoing union security
clause. However, the General Counsel's own evidence -
the 1964-66 contract -- militates against that admission
with regard to the allegation of "entering into" the
contract, since it would be strange, indeed, if its contract
with Local 77, which went into effect on August I, 1964,
was not executed by EMCA until nearly a year later. In
his brief, the General Counsel appears to recognize this,
since he there contends only that EMCA and Local 77
violated the Act by "maintaining" an illegal union
security clause in their agreement . Thus, the General
Counsel's position now appears to be that the gist of the
violation was the retention of the clause in the agreement
on and after June 28, 1965, by EMCA and Local 99.
However, the mere existence of such a clause after that
date would not be unlawful, if in fact there were no
employees to whom it could possibly have applied between
that date and July 31, 1966, when the contract expired."
Thus, to establish a violation it would be necessary to find
515
that on or after June 28, 1965, a member of EMCA
became a party to the foregoing contract, and that he had
at least one person in his employ at that time. Such
findings cannot be derived from EMCA's "admission,"
which was, in effect, only that the clause in its agreement
failed to provide any grace period for any employees in
the employ of a contractor at the time he became bound
by the clause. That is merely an admission as to the terms
of the clause and not that on or after June 28, 1965, there
were any employees who were actually subject to the
application thereof. Absent such admission, it was
incumbent upon the General Counsel to adduce evidence
on that point. There was no such evidence .41
The relevant charges against EMCA and Local 77 were served on
December 29, 1965.
'See Whyte Manufacturing Co. Inc, 109 NLRB 1125, 1127
'lt was not even shown that any member of EMCA "ratified" or
otherwise became a party to the 1964 contract on or after June 28, 1965.
Moreover , according to certain exhibits in evidence , the only employer who
could have become a party to the contract between that date and the
expiration of the contract was Lawrence Rowden, who joined EMCA on
July 3, 1965 Both he and one, Delmar Rowden , joined Local 77 on
unspecified dates in the same month . Thus, even if one assumed that
Lawrence Rowden became a party to the contract after June 28, and,
although there was no evidence to that effect, that Delmar was at that time
in his employ, he would have been the only one subject to the requirement
of immediate union affiliation . (Moreover, if Delmar was a son of
Lawrence , he would not even be an "employee " under the Act.)
RECOMMENDED ORDER
It is ordered that the instant complaint be dismissed in
its entirety.