Electric Utility Workers Union

National Labor Relations Board - Board Decisions

Jan 4, 1974

208 N.L.R.B. 124 (N.L.R.B. 1974)

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electric Utility Workers Union (Independent) (Indian-
apolis Power & Light Company ) and A. Marie
Scholtes. Case 25-CB-1675
January 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 15, 1973, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed cross-exceptions and a brief in support of
the cross-exceptions and in support of the Adminis-
trative Law Judge's Decision.
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 and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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 the complaint herein be dismissed
in its entirety.
I We find it unnecessary to adopt the Administrative Law Judge's
comments regarding the "degree of enthusiasm" which the Act places on a
union representative in handling grievances The Board has held that a
"union has a wide range of reasonableness within which to represent its
members " (See Chrysler Corporation, 193 NLRB 898) The standard of
reasonableness is breached when the union has demonstrated arbitrary,
discriminatory, or bad-faith conduct (See Vaca v Sipes, 386 U S 171, 190
(1967)) We find that the Union has not breached this standard.
DECISION
STATEMENT OF THE CASE
BERNARD NESS , Administrative Law Judge: Pursuant to
an unfair labor practice charge filed on March 5 , 1973, by
A. Marie Scholtes , an individual, complaint issued on April
27, 1973, alleging that Electric Utility Workers Union
(Independent), herein called Respondent, violated Section
8(b)(1)(A) of the National Labor Relations Act, as
amended . More specifically , the complaint alleged that
Respondent threatened employees of Indianapolis Power
i The Company entered an appearance through its counsel. His
appearance , as he stated, was to represent his client who had been served
with a subpena duces tecum prior to the hearing He did not otherwise
participate in the hearing
& Light Company, herein called the Company, that it
would withhold fair representation from employees and
that it would cause or attempt to cause the Company to
discharge employees unless said employees paid dues for a
period of time when the employees were not obligated to
pay such dues. In its answer, Respondent denied commis-
sion of the unfair labor practices alleged in the complaint.
Hearing was conducted on this matter on June 28, 1973, in
Indianapolis, Indiana.
At the hearing all parties were represented by counsel,'
and were afforded full opportunity to examine and cross-
examine witnesses, to introduce evidence pettinent to the
issues, and to engage in oral argument.
Upon the entire record in this case,2 upon my observa-
tion of the witnesses, and upon due consideration of the
beefs filed by the General Counsel and the Respondent, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
Indianapolis Power & Light Company, an Indiana
corporation, is a public utility engaged in the production,
sale, and distribution of electrical energy and steam, with
its principal office in Indianapolis, Indiana, with plants
and other facilities located in Indianapolis and other
locations in the State of Indiana. During the past year, in
the course and conduct of its business operations, it
purchased goods and materials valued in excess of $50,000
which were transported and delivered to its Indiana
facilities from points outside the State of Indiana. During
the same period, in the course and conduct of its business
operations, it received gross revenues in excess of $250,000.
The parties admit, and I find, that Indianapolis Power &
Light Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find, that Electric Utility Workers
Union (Independent) is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
At all times material to this proceeding, the Respondent
has been the bargaining representative of the Company's
office clerical employees. From December 16, 1968, to
December 16, 1971, a collective-bargaining agreement
existed between the parties. This contract contained a
union-security provision and also provided for checkoff of
union dues. On June 12, 1972, a new contract containing a
union-security clause was executed and became effective
on that date. It is undisputed that no contract was in
existence between December 16, 1971, and June 12, 1972.
During this hiatus between the two contracts, the Compa-
ny did not check off union dues. Upon execution of the
2 Subsequent to the hearing the General Counsel filed an unopposed
motion to correct the transcript of testimony To the extent noted below, the
motion is granted and the transcript is hereby corrected in the following
particulars [omitted from publication I
208 NLRB No. 14
ELECTRIC UTILITY WORKERS UNION
new contract, the Company once again started deducting
the dues.
During this hiatus period, a number of the employees in
the bargaining unit did not pay union dues. In June 1972
the Respondent undertook to collect the dues not paid by
employees during the hiatus period. At its general
membership meeting of June 5, 1972, a resolution was
passed to assess the delinquent members the amount they
owed for the period when no contract was in existence. As
the Respondent's counsel states in his brief, as he did
during the hearing, it is a matter of semantics whether the
action taken on June 5 is termed an assessment or "back
dues." The resolution clearly indicated that the Respon-
dent intended that the delinquent members pay the back
dues for the penod. The minutes of this meeting were
received in evidence (G.C. Exh. 10). Subsequent to this
meeting, the Respondent, through personal letters to the
delinquent members and through its newsletters to its
members, appealed to the delinquent members to pay their
back dues so they could again become members in good
standing.
None of these communications referred to the contract
or the union-security provision. Among the group of
delinquent members were Charging Party A. Marie
Scholtes, Terry Ambler, Judith Blomberg, and Larry
Miller. They were all employees in the bargaining unit and
members of the Union. Their union dues had been checked
off up until the earlier contract expired in December 1971.
In July 1972, once again the Company began checking off
their dues. During the 6-month hiatus when no contract
was in existence, their dues were not checked off nor did
they pay their dues personally.3
The General Counsel contends that a meeting in January
1973 with the four delinquent members named above the
Respondent's president, Sherman Gatchell, threatened
them with discharge and with less than fair representation
unless they paid their delinquent dues. The General
Counsel further contends that the delinquent employees
were under no obligation to pay such dues and the
Respondent, by its threats, restrained and coerced the
employees in violation of Section 8(b)(1)(A) of the Act.
At the request of employees Ambler, Blomberg, and
Scholtes, the Company's personnel director, Beplay,
arranged a meeting in late January 1973 with Gatchell.4
Present at the meeting were Gatchell, Beplay, Ambler,
Blomberg, Miller, and Scholtes. The employees asked
Gatchell why they had to pay the back dues for the period
when no contract was in existence. Gatchell informed them
he was not familiar with all the considerations and said he
would report back to them. A day or two later, the same
group met again. The testimony of the witnesses who
testified at the heanng5 concerning this second meeting is
not at variance in any substantial degree. The findings as
3 Some members had made only a partial payment In any event, they
were also considered delinquent and not in good standing
4 Gatchell was elected president of the Union at the June 5 meeting. He
is also employed by the Company
s Gatchell , Beplay, Ambler, Blomberg, and Scholtes.
6 From G.C. Exh. 3
Section 2.01 Membership. Each employee covered by this agreement
who on January 27, 1972, was a member of the Union, and each
employee who thereafter becomes a member of the Union, shall as a
125
to what was said at this meeting are based upon a
composite of the credited aspects of the testimony of the
witnesses. Gatchell read to them the resolution passed at
the June 5, 1972, meeting. He also read that part of the
current contract pertaining to union security .6 He likewise
read that part of the Union's constitution and bylaws
pertaining to the definition of membership in good
standing. He told them they were no longer members in
good standing by their failure to pay the back dues, that
under the contract they could be discharged for failing to
pay the dues but that neither the Company nor the Union
had any interest in enforcing these provisions. He stated
the Union would not seek to get them discharged. He was
asked by Scholtes if they would be represented by the
Union if they filed grievances. Gatchell assured them he
would process their grievances to the best of his ability in
the same manner as for any other employee; that he would
represent them, not because he wanted to, but because he
was obligated to. He also said he could not speak for any
other counselor (steward) or fellow employees. He was
asked if that meant they would get only token representa-
tion. His response was in the form of a question, asking
what they would do if someone owed them money.
The record discloses that no action has been taken by the
Union to attempt to cause the Company to discharge or
otherwise discipline the employees. Nor have any of the
delinquent members who testified filed any grievances
since their loss of membership in good standing. The
record fails to disclose any instance where any official of
the Union sought out any of the individual delinquent
members to pay their back dues.
Analysis and Conclusion
As mentioned above, the General Counsel contends that
employees were not obligated to pay dues for the penod
during which no contract was in existence. Under those
circumstances, the General Counsel argues that Gatchell
threatened Scholtes and the three other employees who
were delinquent in their payment of back dues in a manner
which fell within the proscriptions of Section 8(b)(1)(A).
Although Respondent's counsel has referred to the
Union's action as an assessment, he acknowledged this was
an attempt to collect the dues from those members, few in
number, who had not paid the dues during the hiatus. If it
were an assessment not related to the dues, the Respondent
clearly could not threaten to affect the employment
conditions of delinquent members. If, on the other hand,
we are to consider this to be back dues, the Union likewise
would not be priviledged to threaten sanctions affecting
their conditions of employment since they, would then be
compelled to pay membership obligations which accrued
condition of employment remain a member of the Union in good
standing for the duration of this agreement and each employee covered
by this agreement who was employed after January 27, 1972 , shall as a
condition of employment become a member of the Union on or before
the thirtieth day following his date of hire or the effective date of this
agreement , whichever is later , and shall remain a member of the Union
for the duration of this agreement , provided that the Union shall not
refuse or terminate the membership of any employee to whom this
section applies, who is eligible for such membership in accordance with
the Constitution and By-Laws of said Union
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at a time when there was no valid union-security contract
in existence requiring membership in the Union.7
The issue then reduces itself to the question whether
Gatchell, at the second meeting with the employees in late
January, threatened them for failure to pay their back dues
in a manner which would fall afoul of Section 8(b)(1)(A) of
the Act.
With respect to any alleged threat to attempt to cause
their discharge, the evidence shows that Gatchell told the
employees that under the union-security clause of the
contract the Union could seek their discharge but had no
intention of doing so. Under the circumstances here
present, I do not consider this to be an unlawful threat,
express or implied. In reaching this conclusion, I have
taken into consideration that this meeting in January was
more than 7 months after the Union's resolution to seek
the back dues from those who had failed to pay. During
this interim period there were no personal approaches to
the individual delinquent members nor were they threat-
ened in any manner. The delinquent members themselves
sought out Gatchell to determine their legal obligations
with respect to their dues. Although Gatchell cited the
union-security clause requiring membership in good
standing,8 he made it crystal clear in unambiguous
language that the Union had no intention of enforcing the
provision or seeking their discharge. The record reveals
that the Respondent has not at anytime sought the
discharge or discipline of any employee who failed to pay
the back dues. The General Counsel argues that Gatchell's
assurance to the employees that the Union would not seek
enforcement of the union-secunty provision in the contract
or seek their termination did not make the threat less real.
The reasoning behind this contention is that there was no
assurance the Union would not change its intentions. I do
7 The Eclipse Lumber Co, 95 NLRB 464, enfd 199 F 2d 684 (C A. 9),
New York Shipbuilding Corp., 89 NLRB 1446; Moinsanto Chemical Company,
97 NLRB 519.
9 The legality of the union secunty clause has not been attacked
9 In the event no exceptions are filed as provided by Section 102.46 of
not agree with this contention. I do not believe it was
incumbent upon Gatchell to embellish his statement with a
further assurance that his assurance was, in effect,
guaranteed.
We now turn to the second allegation that Gatchell
threatened to deprive the delinquent members of fair
representation in the processing of grievances. I find this
allegation to be without merit. Although Gatchell told the
employees he would not be happy to process their
grievances (none had been filed) the Act does not place a
standard as to the degree of enthusiasm to be engendered
by a bargaining representative in the processing of a
grievance. In this case, Gatchell clearly told the employees
that irrespective of their dues delinquencies, their griev-
ances would be processed in the same manner as
grievances filed by all the other employees in the
bargaining unit. The Act requires no more.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon all the foregoing, and pursuant to Section I0(c) of
the Act, I hereby issue the following recommended:9
ORDER
It is hereby ordered that the complaint herein be
dismissed in its entirety.
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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