Electrical Workers IUE Local 444 (Paramax Systems)

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 1031 (N.L.R.B. 1993)

1031
311 NLRB No. 105
ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
1 Pursuant to a February 23, 1993 invitation to submit briefs, the
parties were permitted to file supplemental briefs addressing the im-
pact on this case of the Board’s proposed rulemaking in Commu-
nications Workers v. Beck, 487 U.S. 735 (1988), 57 Fed.Reg. 43635
(1992). Only the General Counsel sought to file such a brief. We
grant the General Counsel’s unopposed motion to file that brief out-
of-time. We agree that the brief is acceptable under the provisions
of Sec. 102.111(c) of the Board’s Rules.
For the reasons stated in his dissent in Postal Service, 309 NLRB
305 (1992), Member Oviatt would deny the General Counsel’s re-
quest to file an out-of-time supplemental brief. Thus, Member Oviatt
narrowly construes ‘‘excusable neglect’’ under Sec. 102.111(c) to
permit late filings only where a party demonstrates that, despite its
assiduous attempts to comply with the Board’s Rules and Regula-
tions, it missed the filing date. In Member Oviatt’s view, the General
Counsel failed to establish such excusable neglect. 2 373 U.S. 734 (1963).
International Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, AFL–
CIO and Engineers Union, Local 444, Inter-
national Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, AFL–
CIO (Paramax Systems Corporation, formerly
known as Surveillance and Fire Control Sys-
tems Division and the Systems Management
Unit of Shipboard and Ground Systems Group,
Unisys Corporation) and Lawrence Ferriso.
Case 29–CB–8176
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On November 12, 1992, Administrative Law Judge
Steven Davis issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the
Charging Party filed cross-exceptions and a supporting
brief, and the Respondents filed answering briefs.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs,1 and has decided to affirm the judge’s rulings,
findings, and conclusions only to the extent consistent
with this Decision and Order.
I. BACKGROUND
A. Facts
The Employer, Paramax Systems Corporation (pre-
viously Unisys Corporation), manufactures and distrib-
utes electronic and security equipment. Since at least
1970, the Respondents, International Union of Elec-
tronic, Electrical, Salaried, Machine and Furniture
Workers, AFL–CIO, and its Engineers Local 444,
jointly have represented engineering and quality con-
trol employees at Paramax’ New York facilities.
Paramax and the Respondents have been party to suc-
cessive collective-bargaining agreements covering this
unit. These agreements contain identical union-security
clauses providing that:
All present employees of the Employer, and those
who in the future enter the bargaining unit, shall
join the Union by the thirtieth day following the
beginning of their employment, or by the thirtieth
day following the effective date of this agreement,
whichever is later, and continue to remain mem-
bers of the Union in good standing as a term and
condition of employment.
The most recent agreement, which was executed on
November 25, 1991, is effective from September 6,
1991, until February 3, 1995.
On November 6, 1991, Paramax employee Lawrence
Ferriso filed an 8(b)(1)(A) charge against the Respond-
ents alleging that the union-security clause violated
employees’ rights under Section 7 of the National
Labor Relations Act (NLRA) and Pattern Makers
League v. NLRB, 473 U.S. 95 (1985). Ferriso amended
his charge on January 6, 1992, to allege that the union-
security clause additionally violated Section 8(b)(2).
On January 15, 1992, the General Counsel issued a
complaint alleging that the Respondents violated both
sections by maintaining a union-security clause which
‘‘fails to state that the only condition of continued em-
ployment of the employees . . . is the payment of ini-
tiation fees and dues.’’
Charging Party Ferriso is not a union member. Since
1991, he has paid Respondent Local 444 reduced dues
as specified in Communications Workers v. Beck,
supra. It is not alleged, nor is there evidence, that dur-
ing relevant periods the Respondents requested that
Paramax terminate Ferriso or any other employee for
failing to comply with the union-security provision.
The record establishes that, during the two most recent
collective-bargaining agreements, Paramax has de-
ducted union dues from all employees who signed
checkoff authorizations, and has forwarded these mon-
eys to Respondent Local 444. From these dues, Local
444 has sent a per-capita tax to its District and to the
Respondent International Union.
B. Judge’s Findings
The General Counsel argued that the union-security
clause—requiring membership in good standing—was
facially invalid under NLRB v. General Motors Corp.2
because it failed to specify that the payment of dues
and initiation fees was the only required condition of
employment. The General Counsel argued that in order
for the Respondents to fulfill their statutory duty of
fair representation, they had to: (1) refrain from mis-
leading employees into believing that their union-secu-
rity obligation was broader than required by law; and
(2) eliminate confusion about employee obligations.
The judge rejected the General Counsel’s arguments.
He found the union-security clause lawful because it
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Keystone Coat, Apron & Towel Co., 121 NLRB 880 (1958). The
Keystone clause provided in relevant part, that:
It shall be a condition of employment that all employees of
the employer covered by this agreement who are members of the
Union in good standing on the effective date of this agreement
shall remain members in good standing . . . .
4 134 NLRB 662 (1961).
was fashioned after the Board’s longstanding model in
Keystone.3 The judge also rejected the General Coun-
sel’s claim that Paragon Products Corp.4 overruled
Keystone. Instead, he concluded that Paragon Products
overruled the presumption of illegality of clauses that
do not track the statutory language, but that the deci-
sion did not affect the legality of the Keystone model
clause itself.
The judge additionally rejected the General Coun-
sel’s alternative argument that even if Keystone sur-
vived Paragon Products, its model clause was defi-
cient because its words ‘‘members in good standing’’
are not those contained in Section 8(a)(3). The judge
found that this alternative argument sought precisely
what the Board condemned in Paragon Products—the
presumed illegality of a clause that was not facially
unlawful. NLRB v. News Syndicate Co., 365 U.S. 695
(1961). Finally, the judge concluded that the Respond-
ents were not obligated to conform the language of the
union-security clause to evolving case law. Rather, as
the contractual language was patterned after the Key-
stone model, which remained good law, the judge
found that the Respondents did not violate the Act.
C. Exceptions
The General Counsel excepts, again arguing that
Paragon Products overruled the Keystone model
clause, and that Keystone was incorrectly decided be-
cause its clause did not track the language of Section
8(a)(3). The General Counsel further contends that the
Paramax clause violates the rule in Paragon Products
because ‘‘membership in good standing’’ implies that
employees have obligations beyond the payment of
periodic dues and initiation fees.
Although the General Counsel concedes that requir-
ing ‘‘membership in good standing’’ does not ex-
pressly mandate unlawful action, he nonetheless argues
that the clause should be struck down rather than given
a lawful construction. Spartan Aircraft Co., 98 NLRB
73, 75 (1952); NLRB v. News Syndicate, supra at 699–
700; Paragon Products, supra at 664. Thus, he con-
tends that since ‘‘membership’’ in pre-Beck cases was
interpreted to mean ‘‘dues and fees,’’ ‘‘membership in
good standing’’ clearly implies additional obligations.
Further, argues the General Counsel, the typical em-
ployee interprets ‘‘membership in the Union in good
standing’’ as requiring maintenance of full membership
without delinquencies of any kind. At a minimum, the
employee is confused about his or her obligations.
The General Counsel concedes that the Respondents
would not have violated the Act had they further de-
fined ‘‘membership in good standing’’ to mean only
the payment of periodic dues and fees. By not offering
this explanation, however, the General Counsel argues
that the Respondents violated the Act. Zangerle Peter-
son Co., 123 NLRB 1027 (1959); Hershey Foods
Corp., 207 NLRB 897 (1973), enfd. 513 F.2d 1083,
1085–1086 (9th Cir. 1975).
The General Counsel additionally maintains that be-
cause the union-security clause is facially unlawful, it
violates Section 8(b)(2). J. W. Bateson Co., 134
NLRB 1654 (1961); Meatcutters Local 421 (Great At-
lantic & Pacific), 81 NLRB 1052 (1949). Finally, the
General Counsel argues that, assuming the Board finds
the violations, as alleged, it would not be unduly bur-
densome for the Board to retroactively apply its deci-
sion. SEC v. Chenery, 332 U.S. 194 (1947); Electrical
Workers IUE Local 900 v. NLRB, 727 F.2d 1184, 1194
(D.C. Cir. 1984).
The Charging Party similarly excepts to the judge’s
decision, arguing that the challenged union-security
clause is unlawful because it requires that employees:
(1) ‘‘join’’ the union; (2) ‘‘remain’’ union members;
(3) remain ‘‘members in good standing’’; and (4)
specifies that membership is a ‘‘term and condition of
employment.’’ Specifically, the Charging Party argues
that the union-security clause violates the principle of
‘‘voluntary unionism’’ applied in Pattern Makers, and
is unlawful under Beck. In order to ensure that em-
ployees’ Section 7 rights are protected, the Charging
Party argues that the clause must precisely apprise
them of their obligations and options. The Charging
Party further asserts that whatever defense Keystone
once afforded the Respondents, it ceased when Beck
issued. Finally, as a remedy, the Charging Party re-
quests that the Board order the Respondents to: (1) pay
Ferriso and other employees the sums exacted under
the unlawful union-security clause; (2) expunge the un-
lawful provision; (3) insert, in any replacement clause,
language apprising employees of their Pattern Makers
and Beck rights; and (4) post appropriate notices at all
locations governed by the unlawful union-security pro-
vision.
D. Answering Arguments
The Respondent International Union argues that its
union-security clause is substantially similar to the
Keystone model which the Board has approved for
over 30 years. It further contends that when the Su-
preme Court whittled down the membership obliga-
tions in General Motors and Beck, it did not find the
standard union-security clause unlawful. The Inter-
national notes that as recently as April 1991, the Gen-
eral Counsel maintained that General Motors, Beck,
and Pattern Makers rights need not be expressly set
1033ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
5 Office Employees Local 29, 18 AMR Sec. 28070 (NLRB Advice
Memorandum Reporter).
6 As discussed below, we do not agree with the General Counsel
and Charging Party that the clause is facially unlawful. Rather, we
find it ambiguous, and conclude that the Respondents’ failure to
clarify the ambiguity constituted a breach of their duty of fair rep-
resentation under Sec. 8(b)(1)(A).
We additionally do not consider the Charging Party’s argument
that the term ‘‘members’’ in the challenged union-security clause
also violates the Act. The General Counsel’s consistent theory
throughout this proceeding as alleged in the complaint was that re-
quiring employees to be ‘‘members in good standing’’ not merely
‘‘members’’ violated Sec. 8(b)(1)(A) and (2). (Emphasis added.) Be-
cause the General Counsel determines the legal theory in an unfair
labor practice case, and the legality of requiring employees to be
mere ‘‘members’’ was not litigated, the Charging Party’s additional
argument is not before us. See, e.g., Teamsters Local 203 (Union In-
teriors), 298 NLRB 315 (1990).
Finally, we note that the General Counsel alleged and litigated that
the union-security clause was unlawful because it failed to inform
employees of their General Motors rights. The General Counsel did
not allege that the clause also unlawfully failed to inform employees
of their Beck rights. Accordingly, that issue is not before us.
7 M & J Tracy, Inc., 12 NLRB 916, 931–934 (1939); J. E. Pearce
Contracting Co., 20 NLRB 1061, 1070–1073 (1940); Public Service
Co., 89 NLRB 418 (1950); Colgate-Palmolive-Peet Co. v. NLRB,
338 U.S. 355, 361 (1949). See also Dau-Schmidt, Union Security
Agreements under the National Labor Relations Act: The Statute, the
Constitution, and the Court’s Opinion in Beck, 27 Harv. J. on Legis.
50, 85–88 (1990); Wheaton, Beck and the National Labor Relations
Board: An Analysis of Agency Fee Objection Law and Suggested
Approach for the Board, 1990 Det. C.L. Rev. 633, 637.
8 S. Rep. No. 105, 80th Cong., 1st. Sess. 6 (1947).
9 Sec. 8(3) was relettered because of the addition of Sec. 8(b) pro-
hibitions against certain union unfair labor practices.
forth in a union-security clause in order for that clause
to be facially valid.5 The International submits that no
subsequent decision warrants a contrary result.
Respondent Local 444 additionally argues that the
judge properly dismissed the complaint because: (1)
the union-security clause adheres to the Keystone
model; (2) the clause does not run afoul of the Par-
agon Products prohibitions; and (3) there is no evi-
dence that unit employees were required to become
more than ‘‘financial core’’ members.
II. ANALYSIS
A. Overview
We agree with the General Counsel and the Charg-
ing Party, for the reasons stated below, that the Re-
spondents violated Section 8(b)(1)(A) by maintaining a
union-security clause requiring that employees become
and remain ‘‘members of the Union in good standing’’
as a condition of employment, without apprising them
of their General Motors rights.6 We further find, how-
ever, for the reasons set forth in section II,J, of this de-
cision, that the Respondents did not violate Section
8(b)(2) of the Act.
B. The Statutory Framework for Union-Security
Agreements
As a starting point in our analysis, we examine the
statutory framework for union-security provisions. In
1935, Congress enacted the National Labor Relations
Act (NLRA)—commonly termed the Wagner Act.
Among the Wagner Act’s provisions was Section 7
which protected employees’ rights to, among other
things, join unions and bargain through their chosen
representatives. The 1935 Act also created Section 8(3)
which prohibited employers from ‘‘encourag[ing] or
discourag[ing] membership in any labor organization
. . . by discrimination in regard to hire or tenure of
employment or any term or condition of employment.’’
Although this language, literally interpreted, proscribed
union-security agreements, Congress specifically pre-
served the ‘‘closed shop’’ agreement by appending the
following proviso to Section 8(3):
Provided, That nothing in this subchapter, or in
any other statute of the United States, shall pre-
clude an employer from making an agreement
with a labor organization . . . . to require as a
condition of employment membership therein . . .
if such labor organization is the representative of
the employees . . . (29 U.S.C. § 151 (1935))
As a result of this legislation, certified or validly rec-
ognized labor organizations were privileged to enter
into ‘‘closed shop’’ agreements with employers re-
stricting employment to individuals who were, and
would remain, union members. The Board and courts
interpreted the proviso to Section 8(3) as also pro-
tecting lesser forms of union security, in addition to
the closed shop.7
Following the Wagner Act, closed-shop agreements
flourished. Under these agreements, unit employees
could be required to ‘‘attend union meetings, support
union leaders, and otherwise adhere to union rules.’’
Pattern Makers League v. NLRB, supra, 473 U.S. at
105. Accompanying the increase of closed-shop agree-
ments, however, was growing congressional concern
that the compulsory unionism they sanctioned
‘‘creat[ed] too great a barrier to free employment.’’8
To redress this concern, while still affording unions
protection against ‘‘free riders,’’ Congress amended
Section 8(3) in the 1947 Taft-Hartley Act. Specifically,
Congress relettered Section 8(3) to Section 8(a)(3),9
and substituted the following for the original ‘‘closed
shop’’ proviso:
Provided, That nothing in this Act, or in any other
statute of the United States, shall preclude an em-
ployer from making an agreement with a labor or-
ganization . . . to require as a condition of em-
ployment membership therein on or after the thir-
tieth day following the beginning of such employ-
ment or the effective date of such agreement,
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 In 1959, this proviso was modified to permit agreements requir-
ing membership after 7 days in the construction industry.
11 Under the 1947 amendments, an employer and union could not
negotiate a union-security provision unless a majority of unit em-
ployees first authorized it. This requirement was repealed in 1951.
Dua-Schmidt, supra at 92.
12 Dau-Schmidt, supra at 93.
13 87 NLRB 779 (1949), enfd. 186 F.2d 1008 (7th Cir. 1951), cert.
denied 342 U.S. 815 (1951).
14 See, e.g., Hershey Foods Corp., supra (forcing employees to re-
main on union membership roles); Service Employees Local 680 (Le-
land Stanford Jr. University), 232 NLRB 326, 326 fn. 1 (1977),
enfd. 601 F.2d 980 (9th Cir. 1979) (requiring membership oath);
Boilermakers Local 749 (California Blowpipe), 192 NLRB 502
(1971), enfd. 466 F.2d 343, 345 (D.C. Cir. 1972), cert. denied 410
U.S. 926 (1973) (requiring employees to sign membership cards).
whichever is the later,10 . . . Provided further,
That no employer shall justify any discrimination
against an employee for nonmembership in a
labor organization (A) if he has reasonable
grounds for believing that such membership was
not available to the employee on the same terms
and conditions generally applicable to other mem-
bers, or (B) if he has reasonable grounds for be-
lieving that membership was denied or terminated
for reasons other than the failure of the employee
to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or
retaining membership.11
The effect of the 1947 provisos was to: (1) eliminate
the closed shop; (2) preserve the union shop and lesser
forms of union security; provided, however, that (3)
‘‘expulsion from a union [could not] be a ground for
compulsory discharge if the worker [was] not delin-
quent in paying his initiation fees or dues.’’ S. Rep.
No. 105, 80th Cong., 1st Sess. 7 (1947).
In the 1947 amendments, Congress also augmented
Section 7 to give employees the right to ‘‘refrain
from’’ the activities protected in that Section. Addi-
tionally, Congress enacted Section 8(b)(1)(A), which
prohibited unions from restraining or coercing employ-
ees in the exercise of their Section 7 rights. Section
8(b)(2) was also enacted, making it illegal for unions
to cause or attempt to cause employers to discriminate
against employees in violation of Section 8(a)(3), or to
‘‘discriminate against an employee with respect to
whom membership in such organization has been de-
nied or terminated on some ground other than his fail-
ure to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or re-
taining membership.’’ 29 U.S.C. § 158(b)(2).
C. Board Interpretation of Section 8(a)(3)
The legislative history of the 1947 Taft-Hartley
amendments made clear that Section 8(a)(3)’s second
proviso was intended to prohibit employers from dis-
charging employees under union-security provisions if
the union excluded these employees from membership
or denied them membership for reasons other than
their nonpayment of dues and fees. Less clear, how-
ever, was whether employees subject to a union-secu-
rity provision could be required under the second pro-
viso to apply for membership as well as pay dues and
fees.12 In Union Starch Co.,13 the Board answered this
question in the negative, holding that payment of dues
and initiation fees was the only lawful condition to
continued employment. As stated by the Board major-
ity in Union Starch:
If the union imposes any other qualifications and
conditions for membership with which [an em-
ployee] is unwilling to comply, such an employee
may not be entitled to membership, but he is enti-
tled to keep his job. Throughout the amendment
to the Act, Congress evinced a strong concern for
protecting the individual employee in a right to
refrain from union activity and to keep his job
even in a union shop. Congress carefully limited
the sphere of permissible union security, and even
in that limited sphere accorded the union no
power to effect the discharge of nonmembers ex-
cept to protect itself against ‘‘free rides.’’ [foot-
notes omitted]; [87 NLRB at 784–785].
Over their dissenting colleagues’ argument that ‘‘mem-
bership’’ under Section 8(a)(3) entailed much more
than a willingness to pay dues and fees, the majority
held that ‘‘membership’’ meant only that.
Subsequently, the Board adhered to Union Starch,
finding that attempts to discharge unit employees be-
cause of union requirements other than payment of
dues and fees violated the Act.14 Thus, under Union
Starch and its progeny, the Board construed the 1947
amendments to effectively limit enforcement of union-
security provisions to, at most, obligations arising
under an agency shop.
While the Board was interpreting the 1947 amend-
ments in Union Starch and other unfair labor practice
cases, it also considered union-security clauses in the
representation context. In Keystone, the Board consid-
ered whether collective-bargaining agreements contain-
ing union-security clauses barred election petitions. In
Keystone, the Board determined that contracts contain-
ing such provisions would bar elections except when
the clauses had been adjudged unlawful in unfair labor
practice proceedings, or where they facially did not
comply with the requirements of Section 8(a)(3). In
order to assist practitioners in drafting union-security
provisions that adhered to the statutory requirements,
the Board included a model provision in Keystone.
This provision, which the Board termed the ‘‘maxi-
1035ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
15 Keystone, supra, 121 NLRB at 885.
16 National Brassiere Products Corp., 122 NLRB 965, 966 (1959);
Zangerle Peterson Co., supra at 1028; Grand Union Co., 123 NLRB
1665, 1666 (1959), enf. denied on other grounds 284 F.2d 254 (D.C.
Cir. 1960); Charles Leonard, Inc., 131 NLRB 1104, 1105 fn. 3
(1961).
17 See also Teamsters Local 357 v. NLRB, 365 U.S. 667 (1961).
18 Id. at 699, quoting 279 F.2d at 330 (2d Cir. 1960).
19 See, e.g., Red Star Express Line v. NLRB, 196 F.2d 78 (2d Cir.
1952); Convair, 111 NLRB 1055, 1057 (1955), modified sub nom.
NLRB v. Machinists Lodge 1254, 241 F.2d 695 (9th Cir. 1957).
20 Goehring Meat Co., 183 NLRB 405, 406 fn. 2 (1970). Cf. Serv-
ice Employees Local 680 v. NLRB, 601 F.2d 980, 983 (9th Cir.
1979).
mum permissible in conformity with the requirements
of the Act,’’15 provided that:
It shall be a condition of employment that all em-
ployees of the Employer covered by this agree-
ment who are members of the Union in good
standing on the effective date of this agreement
shall remain members in good standing and those
who are not members on the effective date of this
agreement shall, on the thirtieth day [or such
longer period as the parties may specify] fol-
lowing the effective date of this agreement, be-
come and remain members in good standing in
the Union. It shall also be a condition of employ-
ment that all employees covered by this agree-
ment and hired on or after its effective date shall,
on the thirtieth day following the beginning of
such employment [or such longer period as the
parties may specify] become and remain members
in good standing in the Union.
Although the phrase ‘‘members in good standing’’ in
the Keystone clause did not mirror the language in
Section 8(a)(3), the Board made clear that lawful
union-security clauses could impose no condition on
employment except the payment of initiation fees and
dues. 122 NLRB at 884.
Following Keystone, the Board frequently cited, with
approval, its model union-security clause.16 In 1961,
however, the Board sharply limited Keystone as a re-
sult of the Supreme Court’s decision in NLRB v. News
Syndicate.17 In News Syndicate, the Court stated that
unions and employers would not be presumed to vio-
late federal law. Instead, the Court found that ‘‘[i]n the
absence of provisions calling explicitly for illegal con-
duct, [a] contract cannot be held illegal because it
failed affirmatively to disclaim all illegal objec-
tives.’’18 Adopting the News Syndicate rationale, the
Board held in Paragon Products, supra, that it would
no longer presume that union-security clauses were il-
legal for contract-bar purposes if they did not expressly
reflect the limitations of the Act. Instead, the Board
said that only those clauses which were clearly unlaw-
ful on their face,19 or which had been found unlawful
in unfair labor practice proceedings, would not bar rep-
resentation petitions.
Although Paragon Products overruled Keystone in
the manner discussed above, it neither discussed nor
repudiated the model union-security clause. After Par-
agon Products, the Keystone clause was seldom cited
or discussed.20 Indeed, until Beck, it does not appear
that the legality of the model clause, or clauses simi-
larly requiring ‘‘membership in good standing,’’ were
ever alleged to violate the Act.
D. Judicial Interpretation of Section 8(a)(3)
Following the Taft-Hartley amendments, courts simi-
larly interpreted ‘‘membership’’ under Section 8(a)(3)
and its provisos. The rationale for this interpretation
was articulated in Radio Officers v. NLRB, 347 U.S.
17, 40–41 (1954):
Thus, Sections 8(a)(3) and 8(b)(2) were designed
to allow employees to freely exercise their right
to join unions, be good, bad, or indifferent mem-
bers, or abstain from joining any union without
imperiling their livelihood. The only limitation
Congress has chosen to impose on this right is
specified in the proviso to Section 8(a)(3) which
authorizes employers to enter into certain union
security contracts . . . [however,] the legislative
history clearly indicates that Congress intended to
prevent utilization of union security agreements
for any purpose other than to compel payment of
dues and fees. (footnotes omitted)
In NLRB v. General Motors Corp., supra, the Su-
preme Court further clarified the restrictive force of the
8(a)(3) provisos by holding that ‘‘membership’’ as a
condition of employment was ‘‘whittled down to its fi-
nancial core.’’ 373 U.S. at 742.
Consistent with this interpretation of Section 8(a)(3),
the Court held in Pattern Makers that full union mem-
bership could not be a condition of employment. 473
U.S. at 106–107. Although the Court acknowledged
that unions and employers were free to enter into
union-security agreements, it held that these agree-
ments could not prevent individuals from resigning
from membership, or subject them to discharge be-
cause of their resignation. To hold otherwise, said the
Court, would undercut the Act’s policy of voluntary
unionism. Id. at 114.
Apart from the decisions in General Motors and
Pattern Makers, Board and Court interpretation of Sec-
tion 8(a)(3) and union-security agreements remained
relatively static. In 1988, however, the Court issued its
Beck decision, altering the interpretation of Section
8(a)(3), and with it, unit employees’ obligations.
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Sec. 2, Eleventh provides, in relevant part that:
[A]ny carrier . . . and a labor organization . . . duly designated
and authorized to represent employees in accordance with the re-
quirements of this chapter shall be permitted—
(a) to make agreements, requiring, as a condition of continued
employment, that within sixty days following the beginning of
such employment, or the effective date of such agreement[],
whichever is the later, all employees shall become members of
the labor organization representing their craft or class: Provided,
That no such agreement shall require such condition of employ-
ment with respect to employees to whom membership is not
available upon the same terms and conditions as are generally
applicable to any other member or with respect to employees to
whom membership was denied or terminated for any reason
other than the failure of the employee to tender the periodic
dues, initiation fees, and assessments (not including fines and
penalties) uniformly required as a condition of acquiring or re-
taining membership. (45 U.S.C. § 152, Eleventh).
22 Communications Workers v. Beck, supra, 487 U.S. at 745.
23 Machinists v. Street, 367 U.S. 740, 743 (1961); First National
Maintenance Corp. v. NLRB, 452 U.S. 667, 686 fn. 23 (1981).
24 367 U.S. 740 (1961).
25 In 1977, similar restrictions had been imposed on unions rep-
resenting public-sector employees. Abood v. Detroit Board of Edu-
cation, 431 U.S. 209 (1977).
E. Communications Workers v. Beck
During the period when the Board and courts uni-
formly interpreted union-security agreements under the
NLRA as requiring, at most, that employees pay peri-
odic dues and initiation fees as a condition of employ-
ment, a divergent body of law developed under the
Railway Labor Act (RLA). 45 U.S.C. § 152. Thus, al-
though there were similarities between the language of
Section 8(a)(3) and Section 2, Eleventh,21 its RLA
counterpart, the statutes ‘‘differ[ed] in certain crucial
respects.’’22 As a consequence, separate bodies of law
developed, and courts were reluctant to rely on one
when interpreting the other.23
In 1961, the Supreme Court construed RLA Section
2, Eleventh, as restricting the obligation that union-se-
curity clauses could impose on employees in certain
respects, and this restriction had no parallel in any of
the cases construing the NLRA. In Machinists v.
Street,24 the Court held that the Section 2, Eleventh,
prevented unions from compelling nonmembers to pay
dues for political purposes to which they objected.
More than two decades later, the Court further refined
the scope of Section 2, Eleventh, by holding that unit
employees could be compelled to pay only those dues
covering expenses ‘‘necessarily and reasonably’’ in-
curred in the unions’ performance of collective-bar-
gaining duties. Ellis v. Railway Clerks, 466 U.S. 435
(1984).25 Thus, unlike employees under the NLRA,
who could be required to tender full initiation fees and
dues, employees governed by the RLA were only obli-
gated to remit their ‘‘fair share’’ of the union’s rep-
resentative costs.
In 1988, in the Beck case, the Supreme Court ex-
tended its holdings in Street and Ellis to Section
8(a)(3). In Beck, the Court noted that Section 8(a)(3)
and Section 2, Eleventh, were, in all material respects,
identical. The Court further found that when enacting
both statutes, Congress’ purpose was to authorize com-
pulsory unionism only as needed to ensure that ‘‘those
who enjoy union-negotiated benefits contribute to their
cost.’’ 487 U.S. at 746. Because of the congruity be-
tween Section 8(a)(3) and Section 2, Eleventh, and the
similarity of legislative intent, the Court concluded that
Section 8(a)(3), like Section 2, Eleventh, does not per-
mit expenditures of dues and fees collected from ob-
jecting employees on activities outside the union’s role
as collective-bargaining representative.
The impact of Beck is significant. By limiting ob-
jecting employees’ obligations under union-security
clauses, the Supreme Court reduced the maximum fi-
nancial obligations that can be imposed on unit em-
ployees. More significantly, the Court modified the in-
terpretation of Section 8(a)(3) to which the Board and
courts had adhered since 1947. Because Beck so al-
tered the statutory construct of Section 8(a)(3), we
have reexamined this provision as well as the attendant
rights and obligations it imposes on unions and em-
ployees they represent.
F. Reexamination of the Requirements of
Section 8(a)(3)
Our reexamination of Section 8(a)(3) discloses that
although Congress’ intent in amending Section 8(a)(3)
was to outlaw the closed shop while preserving union
shops and lesser forms of union security, Congress
never specified what ‘‘union shop’’ meant. Senator
Taft, a sponsor of the 1947 amendments, conceded that
‘‘the union shop is not defined. No one knows what
it is. We did not use the term in the bill.’’ Leg. Hist.
1408 (LMRA 1947). Further, when Congress drafted
Section 8(a)(3), permitting employers and unions to
enter into union-security agreements making member-
ship a condition of employment, it failed to define
‘‘membership.’’ Only by examining this term in con-
junction with the second proviso to Section 8(a)(3) can
the extent of employees’ obligations be ascertained.
After the 1947 amendments, the Board and courts
further interpreted the ‘‘membership’’ obligation under
Section 8(a)(3). In so doing, however, the Board and
courts did little to clarify any statutory imprecision or
apprise employees of their actual obligations. On the
contrary, some decisions further obfuscated the statu-
tory requirements. For example, the Keystone model
union-security clause arguably increased confusion
about employees’ obligations under Section 8(a)(3).
Thus, although the Board stated in Keystone that con-
tracts would bar elections only if their union-security
clauses ‘‘facially complied’’ with the requirements of
Section 8(a)(3)—a principle subsequently repudiated in
Paragon Products—Keystone’s model clause did not
mirror the statutory language. Instead, the Board re-
1037ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
26 Heldman, Deregulating Labor Relations, 69–71 (1981). See gen-
erally Tacoma Boatbuilding, 277 NLRB 513 (1985).
27 Contrary to the suggestion of our dissenting colleague, we are
not using a subjective test to determine whether employees are actu-
ally confused. Rather, consistent with any other case in which it is
alleged that employees are coerced and restrained in the exercise of
Sec. 7 rights, we seek to determine, under an objective analysis, the
probable reactions of ordinary reasonable employees, and whether
the conduct involved would tend to restrain or coerce ordinary rea-
sonable employees.
28 They are permitted under Sec. 14(b) in all but ‘‘right to work’’
states.
29 Cantor, Uses and Abuses of the Agency Shop, 59 Notre Dame
L. Rev. 61 fn. 2 (1983); Heldman, Deregulating Labor Relations,
69–71 (1981); Haggard, Compulsory Unionism, the NLRB, and the
Courts, 70 (1977); Wellington, Union Fines and Workers’ Rights, 85
Yale L. Rev. 1022, 1040 (1976). See generally Morris, Developing
Labor Law, 1366 (2d ed. 1983).
30 We note that issues and obligations arising under Beck are not
before us. We cite this case for historical purposes only.
31 See also Teamsters Local 287 (Airborne Express), 307 NLRB
980 (1992).
32 Because the Paramax union-security clause is ambiguous, rather
than facially unlawful, it would constitute a contract bar under Par-
agon Products.
33 See generally Our Way, Inc., 268 NLRB 394, 395 fn. 6 (1983).
placed the statutory term ‘‘membership’’ with the am-
biguous, and equally undefined phrase, ‘‘members in
good standing.’’
Compounding the statutory and interpretive prob-
lems is the fact that unions and employers frequently
do not inform employees of their actual union-security
obligations. See, e.g., Service Employees Local 680 v.
NLRB, 601 F.2d 980 (9th Cir. 1979).26 Whether this
omission results from misunderstanding by the con-
tracting parties, inattention, or conscious attempts to
mislead employees, the effect is that the average rep-
resented employee may well not understand the obliga-
tions incurred under a union-security agreement. Can-
tor, Uses and Abuses of the Agency Shop, 59 Notre
Dame L. Rev. 61 fn. 2 (1983).27
It is estimated that more than 90 percent of the rep-
resented employees in approximately two-thirds of the
states where union-security agreements are permitted
are bound to some form of union-security agreement.28
Mills, Labor-Management Relations, 116 (1982). De-
spite the prevalence of union-security agreements,
there is widespread sentiment that unit employees do
not understand their obligations under those agree-
ments.29 As stated by Thomas Haggard in Compulsory
Unionism, the NLRB, and the Courts, ‘‘The average
worker, unversed in the tortuous complexities of statu-
tory interpretation, would normally construe [‘‘mem-
bership’’ or ‘‘membership in good standing’’] to mean
membership in the colloquial sense—i.e., formal mem-
bership.’’ See also Heldman, Deregulating Labor Rela-
tions, 69, 70 (1981). Thus, despite the fact that em-
ployee options under union-security agreements have
actually increased since the 1947 amendments, ‘‘few
affected employees can take advantage of this wider
latitude because few are aware of the possibility.’’
Ibid. Moreover, the likelihood of employees paying
more to unions than lawfully may be required under
the NLRA has increased under Beck, which further
limits employees’ obligations without any accom-
panying change in Section 8(a)(3).30 It is because of
this confusion that we examine the instant union-secu-
rity clause to determine whether it is per se unlawful,
as alleged, or, alternatively, whether it is ambiguous.
G. ‘‘Membership in Good Standing’’ is
Ambiguous
Contrary to the General Counsel’s and Charging
Party’s arguments, we do not find the Paramax union-
security clause facially unlawful. As the Supreme
Court made clear in News Syndicate, illegal objects
will not be presumed, and contracts will not be found
unlawful merely because they fail to disclaim all ille-
gal objects. See also Teamsters Local 357 v. NLRB,
365 U.S. 667 (1961). Here, the phrase ‘‘members of
the Union in good standing’’ does not explicitly re-
quire that employees bear obligations other than those
lawfully imposed under Section 8(a)(3). Cf. Convair,
supra.31 On the contrary, ‘‘members of the Union in
good standing’’ can be interpreted as requiring that
Paramax employees merely tender initiation fees and
dues.
Although the union-security clause is not unlawful
per se, we agree with the General Counsel’s alternative
argument that the clause, with its phrase ‘‘members of
the Union in good standing,’’ is ambiguous. Thus, al-
though the clause is capable of a lawful construction,
it can also be interpreted as requiring more from
Paramax unit employees than is imposed by statute.32
Indeed, it is likely that employees unversed in the in-
tricacies of Section 8(a)(3) and interpretative decisions
will literally interpret the clause as requiring full mem-
bership and all attendant financial obligations, e.g., as-
sessments. At a minimum, they will be confused about
their obligations. Because of this ambiguity, we next
consider whether the Respondents, by virtue of their
exclusive representative status, are obligated to apprise
Paramax unit employees of their actual obligations.
See generally Electrical Workers IBEW Local 2088
(Lockheed Space), 302 NLRB 322, 329 fn. 27
(1991).33 Resolution of this question requires an exam-
ination of the Respondents’ duty to fairly represent
Paramax unit employees.
H. Duty of Fair Representation
1. Overview of the law
The duty of fair representation is a judicially created
doctrine founded on the principle of fair dealing. Be-
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 323 U.S. 192 (1944). See also Wallace Corp. v. NLRB, 323 U.S.
248 (1944).
35 140 NLRB 181 (1962), enf. denied 326 F.2d 172 (2d Cir. 1963).
36 Although the Second Circuit Court of Appeals refused to en-
force Miranda Fuel, that circuit and other courts of appeals subse-
quently held that a breach of the duty of fair representation violates
the Act. See, e.g., NLRB v. Teamsters Local 282 (Transit-Mix Con-
crete), 740 F.2d 141 (2d Cir. 1984); Rubber Workers Local 12
(Goodyear Tire) v. NLRB, 368 F.2d 12 (5th Cir. 1966), cert. denied
389 U.S. 837 (1967); Newport News Shipbuilding Co. v. NLRB, 631
F.2d 263, 269–270 (4th Cir. 1980); Teamsters Local 568 (Red Ball)
v. NLRB, 379 F.2d 137, 141–142 (D.C. Cir. 1967).
37 Electrical Workers IBEW Local 2088 (Federal Electric), 218
NLRB 396 (1975).
38 Ford Motor Co. v. Huffman, supra; Steele v. Louisville & Nash-
ville Railroad Co., supra.
39 Humphrey v. Moore, supra.
40 Teamsters Local 391 v. Terry, 494 U.S. 558 (1990); Electrical
Workers IBEW v. Foust, 442 U.S. 42, 47 (1979).
41 Breininger v. Sheet Metal Workers, 493 U.S. 67 (1989); Boiler-
makers Local 374 v. NLRB, 852 F.2d 1353 (D.C. Cir. 1988).
42 See also Electrical Workers IUE Local 801 v. NLRB, 307 F.2d
679, 683 (D.C. Cir. 1962), cert. denied 371 U.S. 936 (failure to in-
form employees about union-security clause); NLRB v. Postal Work-
ers, 618 F.2d 1249, 1255 (8th Cir. 1980) (failure to contact em-
ployee before revoking assent to shift change).
43 140 NLRB at 189, quoting Electrical Workers IUE Local 801
v. NLRB, supra, 307 F.2d at 683.
cause of the comprehensive power vested in unions as
exclusive bargaining representatives, and the corollary
dependence of individual unit employees on them, a
doctrine has developed requiring unions to deal fairly
with employees they represent. This doctrine had its
genesis in Steele v. Louisville & Nashville Railroad
Co.,34 an RLA case. In Steele, the Supreme Court held
that concomitant with a union’s status as exclusive bar-
gaining representative is its duty to ‘‘exercise fairly the
power conferred upon it in behalf of all those for
whom it acts, without hostile discrimination against
them.’’ 323 U.S. at 203. Subsequently, the Court de-
fined the elements of a union’s duty of fair representa-
tion as including: (1) serving the interests of all mem-
bers without hostility or discrimination; (2) exercising
its discretion with complete good faith and honesty;
and (3) avoiding arbitrary conduct. Vaca v. Sipes, 386
U.S. 171, 177 (1967); Humphrey v. Moore, 375 U.S.
335, 342 (1964). Where a union’s conduct toward a
unit member is ‘‘arbitrary, discriminatory, or in bad
faith,’’ the duty of fair representation is breached.
Vaca v. Sipes, supra at 190.
Although the duty of fair representation had judicial
origins, its principles were extended to the National
Labor Relations Act in Ford Motor Co. v. Huffman,
supra. Thereafter, in Miranda Fuel Co.,35 the Board
first held that a breach of the duty of fair representa-
tion also was an unfair labor practice under Section
8(b)(1)(A) and (2) of the Act. In Miranda Fuel, the
Board majority held that:
The privilege of acting as an exclusive bargaining
representative derives from Section 9 of the Act,
and a union which would occupy this statutory
status must assume ‘‘the responsibility to act as a
genuine representative of all the employees in the
bargaining unit.’’ . . . [S]ection 7 . . . gives em-
ployees the right to be free from unfair or irrele-
vant or invidious treatment by their exclusive bar-
gaining agent in matters affecting their employ-
ment. This right of employees is a statutory limi-
tation on statutory bargaining representatives,
when acting in a statutory capacity, from taking
action against any employee upon considerations
or classifications which are irrelevant, invidious,
or unfair.’’ [140 NLRB at 185].
Accordingly, as the union’s breach of its Section 9 au-
thority in Miranda Fuel negatively affected employees’
Section 7 rights, the union was found to have violated
Section 8(b)(1)(A) and (2).36
Following its inception, the duty of fair representa-
tion has been applied in an increasing number of con-
texts. The duty, which extends to all unit employees—
not merely union members37—applies to contract ne-
gotiation,38 administration,39 and enforcement.40 The
duty is also applicable to a union’s operation of its hir-
ing hall.41
Various union actions breach the duty of fair rep-
resentation. For example, an exclusive representative
breaches its duty where it affirmatively misleads unit
employees about their obligations under the contract.
Armco, Inc. v. NLRB, 832 F.2d 357, 364 (6th Cir.
1987). Similarly, a union violates the Act when it fails
to warn employees about probable job loss con-
sequences of their actions. Thus, in Teamsters Local
860 v. NLRB, 652 F.2d 1022, 1025 (D.C. Cir. 1981),
a union failed to warn employees of the employer’s
threat to close their department if they persisted in
their economic demands. The court found this omis-
sion arbitrary and in breach of the union’s duty of fair
representation.42
2. Fiduciary duty of unions
As the duty of fair representation has evolved, it has
been refined as a legal doctrine. One refinement has
been to analogize the union’s duty to that of a fidu-
ciary to its beneficiaries. As long ago as 1962, the
Board recognized this similarity in Miranda Fuel when
it stated that the ‘‘requirement of fair dealing between
a union and its members is in a sense fiduciary in na-
ture.’’43 Since Miranda Fuel, the Board consistently
has held that the union’s unique position as exclusive
bargaining representative carries with it the concomi-
tant fiduciary duty to deal fairly with unit employees
on all contract matters governing terms and conditions
of employment. Security Officers Local 40B (South
Jersey Detective Agency), 260 NLRB 419, 420
1039ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
44 See also Philadelphia Sheraton Corp., 136 NLRB 888 (1962),
enfd. sub nom. NLRB v. Hotel & Restaurant Employees Local 568,
320 F.2d 254, 258 (3d Cir. 1963); Teamsters Local 13 (Mobile Pre-
Mix), 268 NLRB 930 (1984); Electrical Workers IBEW Local 3
(General Electric), 299 NLRB 995 (1990); Operating Engineers
Local 501 (California Milk), 306 NLRB 659 (1992).
45 See, e.g., NLRB v. Teamsters Local 282, supra; NLRB v. Hotel
& Restaurant Employees Local 568, supra.
46 NLRB v. Hotel & Restaurant Employees Local 568, supra, 320
F.2d at 258.
47 Sheet Metal Workers Local 355 v. NLRB, 716 F.2d 1249, 1254–
1256 (9th Cir. 1983).
48 See also Operating Engineers Local 501 (California Milk),
supra, 306 NLRB 659, supra.
49 Security Officers Local 40B, supra.
50 See, e.g., Teamsters Local 896 (Anheuser-Busch), supra; Team-
sters Local 282 (Transit-Mix Concrete), 267 NLRB 1130, 1131 fn.
1 (1983), enfd. 740 F.2d 141 (2d Cir. 1984) (failure to inform em-
ployees of arbitrator’s decision establishing recall rights); Steel-
workers (Duval Corp.), 243 NLRB 1157, 1158 (1979) (failure to ap-
prise employees of negotiation of no-strike clause).
51 Boilermakers Local 374 v. NLRB, supra, 852 F.2d at 1358; Op-
erating Engineers Local 406 v. NLRB, 701 F.2d 504, 510 (5th Cir.
1983); Teamsters Local 860 v. NLRB, supra; Bartenders Local 165
(Nevada Resort), 261 NLRB 420 (1982); Operating Engineers Local
324 (Michigan Chapter, NECA), 226 NLRB 587 (1976).
52 270 NLRB 424, 426 (1984), enfd. 772 F.2d 571 (9th Cir. 1985).
53 See, e.g., Teamsters Local 270 (Bulk Transport), 186 NLRB
299, 301 (1970); Bridge Workers Local 378 (Judston Steel), 192
NLRB 1069, 1074 (1971), enfd. mem. 80 LRRM 2627 (9th Cir.
1972).
54 Philadelphia Sheraton, supra, 136 NLRB at 896.
(1982).44 Several circuit courts of appeals similarly
have described the duty of fair representation in fidu-
ciary terms.45 Recent Supreme Court decisions have
validated this comparison. In Air Line Pilots v.
O’Neill, 113 L.Ed.2d 51, 62–63 (1991), the Court said:
The duty of fair representation is thus akin to
the duty owed by other fiduciaries to their bene-
ficiaries. For example, some Members of the
Court have analogized the duty a union owes to
the employees it represents to the duty a trustee
owes to trust beneficiaries. See Teamsters Local
391 v. Terry, 494 U.S. 558, [133 LRRM 2793]
(1990); id., at ll (Kennedy, J., dissenting).
Others have likened the relationship between
union and employee to that between attorney and
client. See id., at ll (Stevens, J., concurring in
part and concurring in judgment). The fair rep-
resentation duty also parallels the responsibilities
of corporate officers and directors toward share-
holders. Just as these fiduciaries owe their bene-
ficiaries a duty of care as well as a duty of loy-
alty, a union owes employees a duty to represent
them adequately as well as honestly and in good
faith.
The basis for the ‘‘fiduciary’’ analogy is the union’s
comprehensive authority as exclusive bargaining rep-
resentative, the cornerstone of representation under the
Act. Because this comprehensive authority ‘‘leads in-
evitably to employee dependence on the labor organi-
zation,’’46 the Board and courts require exclusive rep-
resentatives to notify employees they represent of mat-
ters affecting their employment. See, e.g., Teamsters
Local 896 (Anheuser-Busch), 280 NLRB 565, 575
(1986).47 As stated in Electrical Workers IUE Local
801 v. NLRB, supra, 307 F.2d at 683, ‘‘[T]he union
which can require [the employee’s] membership or
command his discharge is therefore charged with an
obligation of fair dealing which includes the duty to
inform the employee of his rights and obligations so
that the employee may take all necessary steps to pro-
tect his job.’’ The rationale for requiring the union to
provide this information is that it, as the exclusive rep-
resentative, must ensure that unit employees do not fail
to meet their obligations through ‘‘ignorance or inad-
vertence,’’ but do so only as a result of conscious
choice. Conductron Corp., 183 NLRB 419, 426
(1970).48
Because of this fiduciary obligation, unions breach
their duty of fair representation by failing to provide
unit employees with requested contracts or fringe-ben-
efit plans.49 The Act similarly is violated where exclu-
sive representatives fail to inform employees of con-
tract interpretations or changes clearly affecting their
terms and conditions of employment.50 Further, unions
that operate hiring halls violate Section 8(b)(1)(A) un-
less they inform employees of the halls’ procedures
and changes to those procedures, and provide request-
ing employees with hiring hall lists.51 Moreover, in
Electrical Workers IBEW (Los Angeles NECA),52 the
Board termed the union’s breach of the duty to apprise
employees of their hiring hall obligations as a ‘‘statu-
tory’’ responsibility. Finally, and particularly relevant
to this case, the Board, with court approval, has deter-
mined that unions’ fiduciary duties extend to the en-
forcement of union-security clauses.53 Thus, when a
union requires a new employee ‘‘to perfect member-
ship under a union security agreement, it has the duty
to notify the employee . . . as to what his ‘member-
ship’ obligations are.’’54 Obviously this duty requires
that prior to seeking an employee’s discharge for non-
compliance with the union-security provision, the
union must inform the employee of the nature and ex-
tent of the membership obligations—including dues re-
quirements—and notify the employee that the union
will seek his or her discharge unless these obligations
are satisfied. NLRB v. Hotel & Restaurant Employees
Local 568 (Philadelphia Sheraton), 320 F.2d 254, 258
(3d Cir. 1963).
We recognize that Philadelphia Sheraton deals with
a situation where the union is actually seeking the dis-
charge of an employee for failure to comply with the
union-security clause. Clearly, in that situation, the
union must inform the employee as to the precise ex-
tent of the obligation. In our view, the union’s obliga-
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
55 Cf. Communications Workers v. Beck, supra, 487 U.S. at 743
(1988) (reliance on union’s ‘‘failure to represent . . . interests fairly
and without hostility’’).
56 As previously indicated, this case does not present the issue
whether the Respondents additionally were required to notify unit
employees of their options under Beck.
57 As set forth above, the General Counsel’s primary argument was
that the union-security clause was unlawful on its face. Alternatively,
the General Counsel argued that the clause was ambiguous and that
the Respondent was therefore obligated to provide information to
employees as to the true meaning of the clause. As discussed above,
we agree with the latter argument. As to that argument, our dis-
senting colleague contends that the General Counsel did not establish
the fact that Respondent failed to inform the employees. However,
the Respondent itself never made that argument. Instead, Respondent
chose to make only the legal argument that it had no obligation to
inform the employees. Accordingly, we need not reach the issue of
whether the General Counsel has the burden of proving an absence
of information, or, conversely, the Respondent has the burden of
proving that it gave the information. However, we suggest, without
deciding, that it may not be unreasonable to place on Respondent
the burden of proving that it gave the information since it is the
party most likely to have the evidence on this point.
With respect to our dissenting colleague’s inference that the Re-
spondent had sufficiently informed the unit employees, we note the
following. He infers from testimony in another case now pending,
Paramax Systems Corp., 29–CB–8055, that the Respondents pro-
vided unit employees information regarding the meaning of obliga-
tions under the union-security clause. We find this inference unsup-
ported. First, the testimony on which our colleague relies concerns
a newspaper from the Respondent International Union informing em-
ployees of the procedures for seeking a dues reduction under Com-
munications Workers v. Beck. This newspaper is directed to all em-
ployees represented by the International, covered under a myriad of
collective-bargaining agreements, not just Paramax unit employees.
Additionally, the newspaper merely informs ‘‘agency shop fee pay-
ers and certain nonmember payers’’ of their Beck rights. It is not
addressed to employees who are ‘‘members’’ of the Union in good
standing pursuant to the contract’s union-security clause and are not
aware of their rights under law. Also there is no evidence alluded
to by our colleague in this case or in Case 29–CB–8055 that either
of the Respondents ever apprised unit employees that, under General
Motors, the only lawful condition to their continued employment
was the payment of initiation fees and dues.
tion is not limited to that situation. Under a union-se-
curity clause like that involved herein, employees
would reasonably believe that full membership in good
standing is required. If the employee, acting pursuant
to that belief, retains such membership, the union
would have no occasion to seek discharge, and thus a
Philadelphia Sheraton case would not arise. However,
there would nonetheless be a statutory evil, viz., the
employee is kept under the erroneous impression that
he/she does not have a Section 7 right to resign from
the union. Accordingly, we believe that the union must
apprise all unit employees, not just those who are
faced with imminent discharge, as to the precise extent
of their obligations and rights.
I. The Respondents Breached Their Duty of
Fair Representation
As we have seen, the duty of fair representation has
three aspects: (1) to serve all unit employees without
hostility or discrimination; (2) to act in good faith and
honesty; (3) to avoid arbitrary conduct. If a union fails
in one or more of these three respects, it breaches the
duty of fair representation. In our view, the Respond-
ents have failed in the second respect.55 The union-se-
curity clause is phrased in a way that would lead a rea-
sonable employee to believe that full membership in
good standing is required. Respondents failed to take
any steps that would disabuse the employees of that
belief. At stake were such vital matters as retention of
employment and the Section 7 right to refrain from full
membership. In these circumstances, the Respondents’
conduct was inconsistent with elemental notions of
good faith and honesty.
Applying the foregoing legal principles to the facts
in this case, we find that that the Respondents violated
Section 8(b)(1)(A) by maintaining a union-security
clause requiring that unit employees become and re-
main ‘‘members of the Union in good standing,’’ with-
out additionally informing employees of their General
Motors rights.56 Specifically, we find that the Re-
spondents breached their fiduciary duty to Paramax
employees by failing to inform them that their sole ob-
ligation under the union-security provision was to pay
dues and fees.57
Initially, we note that the Respondents’ duty to in-
form Paramax employees of their union-security obli-
gations stems from the Respondents’ status as exclu-
sive representatives. Thus, as a consequence of the Re-
spondents’ comprehensive authority under Section 9(a)
to exclusively represent Paramax unit employees, those
employees necessarily depend on the Respondents to
notify them of matters directly affecting their employ-
ment. NLRB v. Hotel & Restaurant Employees Local
568 (Philadelphia Sheraton Corp.), supra. This need
for notice is particularly acute where, as here, it: (1)
involves conditions the represented employees must
satisfy to retain their employment; (2) these conditions
were negotiated by the Respondents; and (3) the condi-
tions imposed by the clause inure to the Respondents’
benefit. Because these exclusive representatives nego-
tiated the union-security provision on behalf of the
Paramax employees they represent, and are the direct
beneficiaries of the dues and fees exacted under this
provision, they logically and fairly bear the burden of
informing employees of their obligations. Additionally,
we find that the fiduciary duty to provide notice at-
taches because the union-security clause, by its nature,
restricts the unit employees’ exercise of fundamental
Section 7 rights.
Under Section 7, employees have the concomitant
rights to ‘‘form, join, or assist labor organizations,’’
and ‘‘to refrain from any or all such activities . . . ’’
Although a recognized limitation on employees’ statu-
tory Section 7 rights are ‘‘agreement[s] requiring
membership under Section 8(a)(3)’’, the actual scope
1041ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
58 Breininger v. Sheet Metal Workers Local 6, supra, 493 U.S. at
89.
59 Compare Typographical Union 16 (Continental Composition),
268 NLRB 347, 348–349 (1983) (Sec. 8(b)(2) violated where union
caused or attempted to cause employer to discharge employees for
failing to comply with unlawful union-security clause).
60 Member Raudabaugh does not agree with the second reason for
dismissing the 8(b)(2) allegation. If a union-security clause is unlaw-
ful on its face, the mere maintenance of it violates Sec. 8(b)(2) and
8(b)(1)(A). See J. W. Bateson, supra.
of the limitation is quite circumscribed. Thus, Con-
gress’ strong concern when enacting Section 8(a)(3)
was to safeguard employees’ Section 7 right to refrain
from union activity without jeopardizing their employ-
ment. Union Starch, supra. The Board and the courts
have interpreted Section 8(a)(3) consonant with Con-
gress’ intent. We both consistently have held that
‘‘agreement[s] requiring membership,’’ (i.e., union-se-
curity provisions), require only that unit employees, as
a condition of employment, tender uniform initiation
fees and dues. General Motors, supra.
The permissible limits of the union-security obliga-
tion under Section 8(a)(3) are not reasonably and fairly
reflected in the Paramax union-security agreement. On
the contrary, the contractual language requiring that
unit employees become and remain ‘‘members of the
Union in good standing,’’ is ambiguous and fails to
apprise employees of the lawful limits of their obliga-
tion. Indeed, a literal reading of the clause would lead
an employee unversed in labor law to believe that em-
ployees were obliged to join the Union and satisfy all
of the requirements for membership as a condition of
employment. This literal reading of the clause would
chill the exercise of employees’ Section 7 rights to re-
frain from union membership and support.
Because the clause is ambiguous, and directly impli-
cates employees’ fundamental statutory rights, the Re-
spondents are obligated to tell employees what the
clause actually requires. See, e.g., Electrical Workers
IBEW Local 2088 (Lockheed Space), supra. By failing
to inform unit employees of their obligations, the Re-
spondents breached their fiduciary duty of fair dealing
in violation of Section 8(b)(1)(A).
The Respondent International Union affirmatively
argues that the Act is not violated because, among
other things, the General Counsel maintained as re-
cently as April 1991, that General Motors, Beck, and
Pattern Makers rights need not be enumerated in a
union-security clause for that clause to be facially
valid, and no subsequent case requires a different re-
sult. We reject this argument. First, the position of the
General Counsel on which the Respondent relies is ad-
visory, and lacks the force of law. Second, we are not
finding the Paramax union-security clause facially in-
valid. Rather, because ‘‘member[ship in] the Union in
good standing’’ is ambiguous but chills employees’ ex-
ercise of Section 7 rights, we are requiring the Re-
spondents to tell employees what the clause actually
means.
Finally, although not argued by the parties, we find
nothing inconsistent with our requirement that the Re-
spondents notify unit employees of their General Mo-
tors rights, and the holding in Teamsters Local 357 v.
NLRB, supra. Thus, although the Supreme Court held
in Teamsters Local 357, a hiring hall case, that the
Board exceeds its 10(c) remedial authority by requiring
prophylactic safeguards, Teamsters Local 357 was not
a duty of fair representation case.58 Indeed, it arose
prior to the Board’s application of that doctrine. Fur-
ther, in the hiring hall context in Teamsters Local 357,
employees were not required to initiate any commu-
nication with their exclusive representative in order to
perfect their statutory rights. Here, however, before
employees can exercise their statutory rights, they must
be informed of the actual extent of their obligation
under the union-security clause. In these cir-
cumstances, the notice the Respondents are required to
provide is remedial, not prophylactic. Further, Team-
sters Local 357 does not deal with a clause which im-
pairs Section 7 rights. By contrast, a union-security
clause does impair Section 7 rights. As we have seen,
such impairment is permissible, provided that the im-
pairment is narrowly confined to the obligation to pay
dues and fees. In our view, where a union is given the
privilege of impairing Section 7 rights to a limited ex-
tent, the union has the concomitant obligation to ex-
plain the precise limits of that impairment.
J. The 8(b)(2) Allegation
The General Counsel next argues that because the
union-security clause is facially unlawful, it also vio-
lates Section 8(b)(2). We disagree. As previously dis-
cussed, we find the contested union-security clause
ambiguous rather than facially invalid. Second, even
were the clause unlawful, Section 8(b)(2) is not impli-
cated. Under settled Board law, a union violates Sec-
tion 8(b)(2) only where it takes affirmative steps to
cause, or attempt to cause, an employer to discriminate
against employees in violation of Section 8(a)(3). Elec-
trical Workers IBEW Local 2088 (Lockheed Space),
supra, 302 NLRB at 330.59 As the Respondents have
merely maintained an ambiguous union-security clause,
and have not caused, or attempted to cause, Paramax
to violate Section 8(a)(3), Section 8(b)(2) is not vio-
lated. Accordingly, we dismiss this allegation.60
III. KEYSTONE OVERRULED AS TO THE
MODEL CLAUSE
Because we have found that the phrase ‘‘member-
ship in good standing’’ is ambiguous, we specifically
reject the model clause in Keystone which contains this
provision.
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61 NLRB v. Bufco Corp., 899 F.2d 608, 609 (7th Cir. 1990); NLRB
v. Chicago Marine Containers, 745 F.2d 493, 499 (7th Cir. 1984).
62 See also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294
(1974); NLRB v. Niagara Machine, 746 F.2d 143, 151 (2d Cir.
1984); John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. 843
F.2d 770 (3d Cir. 1988).
63 Because we have determined that the union-security clause is
not facially unlawful, we deny the Charging Party’s request that the
clause be rescinded.
IV. RETROACTIVITY
The final issue we confront is whether, as the Gen-
eral Counsel argues, the foregoing principles should be
retroactively applied. The Board’s customary practice
is to apply new policies and standards to ‘‘all pending
cases at whatever stage.’’ Deluxe Metal Furniture Co.,
121 NLRB 995, 1006–1007 (1958). An exception to
this practice occurs where retroactive application
would work a ‘‘manifest injustice.’’ Pattern Makers
(Rite Industrial Model), 310 NLRB 929 (1993).61 As
stated in SEC v. Chenery, supra, 332 U.S. at 203, the
propriety of retroactive application is determined by
balancing the ill effects it might produce with the
‘‘mischief of producing a result which is contrary to
a statutory design of the legal and equitable prin-
ciples.’’62 Applying this balancing process, we agree
with the General Counsel that retroactive application is
appropriate.
Although the principles enunciated in today’s deci-
sion depart from precedent, they are necessary to rec-
oncile apparent inconsistencies in the previous law,
and to eliminate widespread confusion among employ-
ees, employers, and unions about rights and obligations
accruing under union-security provisions. Second, al-
though these new principles place new obligations on
unions, we do not view these obligations as onerous or
as working an injustice. The additional obligations on
unions to cure ambiguities in union-security clauses by
accurately apprising unit employees of their rights and
obligations under NLRB v. General Motors, easily can
be satisfied by adequate notice or by revising union se-
curity agreements. Moreover, as envisioned by
Chenery, counterbalancing interests clearly establish
the propriety of retroactive application. Thus, ‘‘the
purpose of Section 8(b)(1)(A) . . . is to protect em-
ployees from union coercion directed at their exercise
of Section 7 rights; and . . . an important policy of the
Act is the principle of voluntary unionism.’’ Pattern
Makers (Rite Industrial Model), supra. Retroactive ap-
plication furthers this policy of voluntary unionism by
ensuring that employees are apprised of, and free to
exercise, their statutory rights and options under con-
tractual union-security provisions. And, indeed, there is
little in the way of ‘‘ill effects’’ that we perceive to
justify a failure to make our decision retroactive, for
the membership requirement could not in any event be
enforced beyond its lawful limit.
In sum, we conclude that the statutory benefits to
employees outweigh the hardships resulting from im-
mediate imposition of today’s principles. Accordingly,
we will apply these principles to this case and to all
pending cases at whatever stage.
CONCLUSIONS OF LAW
1. Paramax Systems Corporation is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, AFL–CIO, and
its Engineers Union, Local 444 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By maintaining and giving effect to a union-secu-
rity clause requiring that employees, as a condition of
employment, become and remain ‘‘members of the
Union in good standing,’’ without apprising unit em-
ployees that under NLRB v. General Motors they need
only tender to the Respondents uniform initiation fees
(if applicable) and dues, the Respondents have engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(b)(1)(A) of the Act.
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondents violated Section
8(b)(1)(A), we shall order that they cease and desist
and take certain affirmative action designed to effec-
tuate the policies of the Act. Specifically, the Respond-
ents are required to notify each unit employee, in writ-
ing, of the employee’s General Motors rights. Nothing
here shall preclude the Respondents from negotiating a
modification to the union-security provision with
Paramax Systems Corporation which unambiguously
apprises unit employees of their lawful union-security
obligations.63
ORDER
The National Labor Relations Board orders that the
Respondents, International Union of Electronic, Elec-
trical, Salaried, Machine and Furniture Workers, AFL–
CIO, and its Engineers Union, Local 444, their offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining a union-security clause requiring
that, as a condition of employment, Paramax unit em-
ployees become and remain ‘‘members of the Union in
good standing’’ without informing those employees
that they are only obligated to tender uniform initiation
fees (if any) and dues.
(b) In any like or related manner restraining or co-
ercing Paramax employees in the exercise of their
rights protected by Section 7 of the Act.
1043ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
64 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 The unit employees are represented by the International Union of
Electronic, Electrical, Salaried, Machine and Furniture Workers,
AFL–CIO, and its Engineers Local 444. The judge found that both
entities were served as Respondents here. For simplicity’s sake, I
shall refer to these entities as ‘‘the Union.’’
2 373 U.S. 734 (1963).
I agree with my colleagues that the Union’s conduct did not vio-
late Sec. 8(b)(2) and I further agree that the General Counsel’s sup-
plemental brief is acceptable.
3 Vaca v. Sipes, 386 U.S. 171 (1967); Ford Motor Co. v. Huffman,
345 U.S. 330 (1953).
4 In this I echo Member Murdock’s forceful, well-reasoned, and ul-
timately persuasive dissent in Mountain Pacific Chapter, AGC, 119
NLRB 888, 890 (1957), overruled in relevant part Teamsters Local
357 v. NLRB, 365 U. S. 667 (1961) (Murdock, dissenting in relevant
part: ‘‘To my knowledge this is the first time that the Board or any
court has found an unfair labor practice solely on the ground that
the respondent failed to express a lawful motivation at the time the
alleged unfair labor practice occurred.’’)
5 The majority reads the complaint allegations and the General
Counsel’s exceptions and brief in support of them as arguing in the
alternative that the union-security provision was ambiguous and that
the Respondents were therefore obligated to provide notice of its
true meaning to employees. I see no evidence in either the complaint
or the brief in support of exceptions to indicate that the General
Counsel was arguing that the Respondent could satisfy that obliga-
tion in any manner other than revising the union-security provision.
I read the complaint and brief as alleging only that the union-secu-
rity agreement violated the Act because it did not state that employ-
ees are obligated to pay only initiation fees and dues.
The majority’s broad reading of the complaint and pleadings does
not alter the reality that it does not have an evidentiary showing to
support a key fact vital to its finding of the violation. If the General
Continued
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify each Paramax unit employee in writing
that the only required condition of employment under
the union-security clause is the tendering of uniform
initiation fees (if any) and dues.
(b) Post at their business offices and all meeting
halls copies of the attached notice marked ‘‘Appen-
dix.’’64 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by
the Respondents’ authorized representatives, shall be
posted by the Respondents immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members
are customarily posted. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by Paramax Sys-
tems Corporation, if willing, at all places where notices
to employees are customarily posted.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondents have taken to comply.
MEMBER DEVANEY, dissenting in part.
1. Introduction
I dissent from the majority’s finding that the Union1
violated Section 8(b)(1)(A) and the duty of fair rep-
resentation by maintaining an ‘‘ambiguous’’ union-se-
curity clause requiring that unit employees remain
members of the Union ‘‘in good standing’’ without
clarifying the clause’s meaning under NLRB v. General
Motors,2 and I dissent from the order that the Union
notify each employee in writing that ‘‘the only re-
quired condition of employment under the union-secu-
rity clause is the tendering of uniform initiation fees (if
any) and dues.’’
I would adopt the judge’s dismissal of the com-
plaint. I find that the Union’s maintenance of a union-
security clause in conformity with Board law, found
facially lawful by the majority itself, does not breach
the duty to represent employees in good faith. The
record discloses that the Union has represented the
Charging Party fairly at all relevant times, and the
maintenance of the very provision alleged as unlawful
demonstrates beyond doubt that the Union has adhered
to the law respecting the limits on union-security
clauses at all times.
I view the majority’s conclusion as a heavy-handed
effort to impose a partisan notion of what labor laws
ought to require from unions rather than a careful ap-
plication of what the law does require. The majority
misapplies Supreme Court precedent defining the
standard for breaches of the duty of fair representation
in violation of Section 8(b)(1)(A). Under that standard,
only arbitrary, discriminatory, or bad-faith conduct
breaches the duty.3 Further, precedent emphasizes the
limits on judicial and administrative review of a
union’s choices as to how it carries out its duties and
exercises its rights under law as a bargaining represent-
ative, and it mandates a standard of broad reasonable-
ness and consideration of the factual and legal climate
in which the union acted. My colleagues pay lip-serv-
ice to this standard, which is clear, definite, and lim-
ited to situations of real dereliction, but they do not
apply it to this case. Instead, emphasizing analogies
between the duty of fair representation and the law of
fiduciaries, they treat the duty as a conveniently hazy
‘‘fiduciary’’ responsibility to please everyone all the
time and to anticipate any and all changes in the law.
I have found no other case not later reversed in which
a union’s strict adherence to Board law forms the basis
for a violation of Section 8(b)(1)(A).4
As to the violation’s factual basis, I disagree with
my colleagues’ failure to require the General Counsel
to provide a factual underpinning for the majority’s
theory of the violation.5 The General Counsel failed to
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Counsel were to argue that the Respondents were obligated to notify
unit employees of the meaning of ‘‘in good standing,’’ the General
Counsel would still have to show as part of the prima facie case that
the Respondents failed to do so. This is equally true in, e.g., an
8(a)(5) case where the complaint alleges that the respondent failed
to execute an agreement. Before the respondent can be required to
demonstrate that it did execute the agreement, the General Counsel
must come forward with evidence that the respondent did not do so.
If the General Counsel fails to adduce evidence of such operative
facts, the complaint will be dismissed before the respondent is re-
quired to demonstrate that it did execute the agreement. The same
allocation of the burden of proof should apply here.
Thus, my colleagues’ emphasis on the Respondent’s failure to
demonstrate that they gave notice to employees of the meaning of
the union-security provision is misplaced. Requiring a union to come
forward with evidence that it had in fact separately notified employ-
ees of their rights under a union-security clause would indeed be ap-
propriate—as part of a respondent’s rebuttal of the General Coun-
sel’s prima facie case. But contrary to the majority, the General
Counsel did not allege that the Union violated the Act by maintain-
ing an ambiguous clause and failing to give employees notice of
their rights—and even if he did, he introduced no evidence that the
Union had failed to give such notice. The Respondents, then, can
hardly be faulted for failing to plead an affirmative defense to a vio-
lation the operative facts of which were not even alleged and in sup-
port of which no evidence was adduced. In addition, the Union’s
knowledge with respect to notification is not exclusively in its pos-
session; the General Counsel could quickly ascertain through inves-
tigation of the charge whether he could establish a prima facie case
for maintenance of an ambiguous union-security clause without clari-
fication by asking the charging party and other employees if they
had ever received such a notice.
6 See Mountain Pacific, supra, fn. 4, 119 NLRB 883, 888–889
(Murdock, dissenting in part).
7 Universal Camera Corp. v. NLRB, 334 U.S. 474, 488 (1950).
8 As discussed in sec. 5, infra, the standard for determining the
lawfulness of the language at issue is not whether it confuses or en-
lightens employees, or even, as my colleagues appear to hold else-
where, whether a reasonable employee would find the language am-
biguous, but is set out by the Supreme Court in NLRB v. News Syn-
dicate Co., 365 U.S. 694 (1961): does the provision, on its face, call
for illegal conduct by one or both of the parties? For ‘‘[i]n the ab-
sence of provisions calling explicitly for illegal conduct, the contract
cannot be held illegal because it failed affirmatively to disclaim all
illegal objectives.’’ Id. at 699–700 (citation omitted).
9 Sec. 10(c) provides, in relevant part:
If upon the preponderance of the testimony taken the Board
shall be of the opinion that any person named in the complaint
has engaged in or is engaging in any such unfair labor practice,
then the Board shall state its findings of fact and shall issue and
cause to be served on such person an order requiring such per-
son to cease and desist from such unfair labor practice, and to
take such affirmative action . . . as will effectuate the policies
of this Act . . . . [Emphasis added.]
10 NLRB v. News Syndicate Co., supra, fn. 8, 365 U.S. 694.
adduce any evidence of the two key facts on which the
majority’s conclusions depend: that confusion about
the nature of the union-security obligation exists and
that the Union failed to apprise employees of the max-
imum that such a provision can require. The majority
has in effect relieved the General Counsel of his statu-
tory responsibility to demonstrate that a respondent has
violated the Act: by presuming, on the basis of a law-
ful provision, that the Union will mislead employees,
the majority shifts the burden of proof to the Union;
and by finding the presumption conclusive of unlawful
conduct even without proof that the Union failed to
notify employees of their minimum obligations, the
majority has reduced the General Counsel’s burden to
alleging nothing more than that a union-security clause
contains the phrase ‘‘in good standing.’’ As the major-
ity holds today that this phrase does not render a
union-security agreement unlawful, the General Coun-
sel has no burden to come forward with evidence of
unlawful conduct.6
To fill the vacuum of the General Counsel’s case,
the majority reaches into past decades for outdated
commentary to support findings, not about this Re-
spondent and this unit, but about ‘‘average’’ employ-
ees in ‘‘widespread’’ situations. This substitution of
generality for fact abuses the presumption that the
NLRB is ‘‘one of those agencies presumably equipped
or informed by experience to deal with a specialized
field of knowledge, whose findings . . . carry the au-
thority of [] expertness.’’7 Such findings of ‘‘fact’’
merit no deference whatever, as they openly rely on
incompetent and irrelevant sources.
I emphasize that the majority, not I, has chosen to
base its conclusion that the Union has violated the Act
on the subjective confusion of some employees: as the
majority states, ‘‘[i]t is because of this confusion that
we examine the instant union-security clause . . . .’’
I do not follow that approach; I merely observe that
if the majority relies on the premise that employees’
subjective response to contract language is confusion,
then the majority should cite relevant, competent evi-
dence that employees are responding to the language
with confusion to support (1) a finding that such con-
fusion exists and that the Union has not alleviated it,
(2) an inference that the confusion is widespread, and
(3) a conclusion that the Board should order a remedy.
The majority has failed to cite any such evidence.8
My colleagues’ zeal to fix something that is not bro-
ken is also reflected in the cavalier order that because
an employee could misunderstand the union-security
clause, the Union must undertake an extensive, expen-
sive, and thoroughly redundant notification campaign.
The order stretches the Board’s discretion in fash-
ioning appropriate remedies too far, as it ignores the
real-world consequences—the simultaneous expense
and futility—of complying with such a requirement.
Finally, Supreme Court precedent unequivocally
holds that the Board lacks the authority under Section
8(a)(3) and Section 8(b) to find a violation and under
Section 10(c)9 to order a remedy where the Board has
simply presumed wrongdoing from contract language
that admits of a lawful interpretation.10 My colleagues’
holding that while the language here is facially lawful,
it is ‘‘confusing’’ or ‘‘ambiguous’’ and thus requires
a remedy fails to put them on solid statutory ground.
The Supreme Court has not established either of those
1045ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
11 Teamsters Local 357 v. NLRB, supra, fn. 4, 365 U.S. 667.
12 This agreement is effective by its terms from September 25,
1991, to February 3, 1995. Emphasis in the quotation from the
agreement’s provision is added.
13 487 U.S. 735 (1988).
14 See Paramax Systems Corp., 29–CB–8055, involving the same
parties. Ferriso testified there that he read of the nonmember’s op-
tion to pay reduced dues in notices provided by the Local and Inter-
national. These notices were published in the Union’s periodical; it
thus appears safe to infer that members also received the periodical
and the notice.
The majority states that I inferred from Ferriso’s testimony in the
companion case that the Union had provided, through its Beck infor-
mation, some notice to employees of their rights under a union-secu-
rity clause. That testimony formed part of the basis of my inference;
I also based the inference on the General Counsel’s reference to the
notice in the brief in support of exceptions filed in the instant case.
My inference that members would receive the Beck notice, which
describes the rights of nonmembers to seek a dues reduction, because
it was published in a magazine sent to all members, has a basis in
fact. That cannot be said of the majority’s inference that the Union
permitted confusion over employee rights under the union-security
clause to persist by failing to apprise members of their rights.
15 My colleagues have correctly noted that no additional rights that
Beck may guarantee to employees are implicated here.
16 Keystone Coat, Apron, & Towel Co., 121 NLRB 880 (1958). In
Keystone, the Board held that a union-security clause not reflecting
the language of Sec. 8(a)(3) would not bar a petition, and while
commenting that ‘‘it should not be difficult for parties . . . to adhere
to the statutory requirements set out by Congress eleven years ago,’’
it set out a provision ‘‘offered as a guide’’ and deemed to be the
‘‘maximum permissible in conformity with the requirements of the
Act.’’ Id. at 885 (emphasis added). As noted above, the model clause
permits unions to require the maintenance of ‘‘membership in the
Union in good standing.’’
17 134 NLRB 662 (1961).
18 The judge’s interpretation of Paragon and Keystone is unques-
tionably correct. In Paragon, the Board found that sound administra-
tive practice foreclosed continuing to find union-security clauses not
conforming to Sec. 8(a)(3)’s language unlawful, because: (1) the Su-
preme Court had sharply criticized such presumptions of unlawful-
ness (see discussion of NLRB v. News Syndicate Co., supra, fn. 8,
Continued
characteristics as the threshold for an order that a
union remedy problematic contract language; thus, my
colleagues exceed their authority by ordering a remedy
when no unlawful conduct has occurred and by hold-
ing the Union to a standard rejected definitively by the
Supreme Court. As discussed in section 4, infra, there
is no better demonstration of the Court’s wisdom in
prohibiting the Board from ‘‘legislating’’ where Con-
gress is silent than my colleagues’ basing a violation
and remedy on scrupulous adherence to Board law.11
2. The case below
Charging Party Ferriso is a nonmember Beck objec-
tor. The General Counsel has offered no evidence that
the Union has threatened or retaliated against him or
any other nonmember or that any employee was con-
fused or misled by the parties’ union-security provi-
sion, or that the Union has responded to any inquiries
about employees’ obligations in a confusing manner.
The facts are not disputed. For about 25 years the
Union has represented a unit of engineering and qual-
ity control employees and has negotiated contracts,
each of which, including the most recent,12 has pro-
vided that all unit employees ‘‘shall join the Union by
the thirtieth day and continue to remain members of
the Union in good standing . . . as a term and condi-
tion of employment.’’ During the two most recent con-
tracts, Paramax has deducted dues from all employees
who have authorized checkoff and has remitted the
dues to Local 444, which in turn has remitted a portion
to district and international organizations. The record
shows that the Union has not attempted to enforce the
clause within memory, and at the very least not during
the past two contract terms.
That ends the recitation of facts. The phrase ‘‘in
good standing’’ is the only conduct alleged as unlaw-
ful. The General Counsel alleges that the Union vio-
lated Section 8(b)(1)(A) and (2) by maintaining a
union-security clause that fails to state that the only
condition of continued employment of the employees
is the payment of initiation fees and dues. I would add
a further fact, noted in the General Counsel’s brief in
support of exceptions at page 6, about the Union’s
handling of notice to employees of their union-security
obligations: the International Union provides informa-
tion to employees regarding their rights under Commu-
nications Workers v. Beck,13 viz, that nonmembers
have the right to pay reduced dues and fees if they ob-
ject to the Union’s nonrepresentational expenditures.14
The Union, then, has provided information regarding
the meaning of obligations under the union-security
clause to the unit employees during the relevant period
and before it.
On these facts, the General Counsel argues that the
union-security clause’s phrasing—that employees are
required to maintain membership ‘‘in good stand-
ing’’—is facially invalid under General Motors and
Beck,15 because it does not state explicitly that em-
ployees need pay only dues and initiation fees as a
condition of employment. The General Counsel argues
that the Union has violated its duty of fair representa-
tion to unit employees, and that to remedy the breach,
the Union must (1) refrain from misleading or con-
fusing employees into believing that their union-secu-
rity obligations are broader than the law allows; and
(2) to eliminate any confusion employees have about
their obligation.
The judge dismissed the complaint, finding that the
provision is lawful because it tracks the Board’s union-
security clause language in Keystone.16 In response to
the General Counsel’s argument that Paragon Products
Corp.17 overruled Keystone, the judge correctly noted
that Paragon overruled, not the clause’s language, but
Keystone’s presumption that union-security clauses that
do not track Section 8(a)(3)’s language are unlawful,
and that the Keystone language is still viable.18 In re-
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
365 U.S. 695, sec. 4, infra); (2) Keystone’s rigidity had an ‘‘ex-
tremely unsettling impact’’ on lawful union-security clauses, dis-
rupting an inordinate number of contracts; and (3) many contracts
illegal under Keystone did not, without extraneous evidence of intent
and practice, provide a basis for finding an unfair labor practice. 134
NLRB 662, 664–665. Accordingly, the Board reversed only Key-
stone’s presumption that clauses with language differing from the
statute or the model clause were unlawful and held that only clauses
that facially require unlawful acts will bar elections.
19 See majority decision, fn. 26.
20 See id. at 1037.
21 See id. at 1037 and fn. 29.
22 My analysis is not intended to rule out the Board’s consideration
of, or judicial notice of, expert testimony or evidence or scholarly
articles. However, I would require that such evidence be accom-
panied by a proper foundation and be relevant and material. That is
not the case here.
sponse to the General Counsel’s argument that if Key-
stone’s clause is good law after Paragon, then Key-
stone is wrongly decided because the phrase ‘‘in good
standing’’ does not track Section 8(a)(3)’s language
precisely, the judge reasoned that the General Counsel
was seeking the very conclusion Paragon con-
demned—that a union-security clause not unlawful on
its face and not used to gain unlawful ends is illegal
nonetheless. Finally, the judge concluded that Board
law does not require parties to conform the wording of
union-security clauses to evolving case law; in this
case, as the union-security clause’s language followed
the Keystone model, maintenance of it did not violate
the law. I agree with the judge’s reasoning.
Although the General Counsel concedes in excep-
tions that the clause here does not mandate unlawful
conduct, he urges the Board to strike it rather than
construe it lawfully, as, in his view, membership ‘‘in
good standing’’ clearly requires more from an em-
ployee than just ‘‘membership.’’ The General Counsel
argues further that although ‘‘employee[s] . . . inti-
mately familiar’’ with Section 7 rights understand that
they can be dues-paying nonmembers in, as the Gen-
eral Counsel inaccurately puts it, Paramax’s ‘‘union
shop,’’ the ‘‘typical uninformed employee’’ would
‘‘readily’’ interpret ‘‘membership in good standing’’ to
require full membership, paid up in all respects.
3. The majority’s analysis
In finding that the Union violated Section
8(b)(1)(A), the majority surveys the union-security
clause from 1935 through Beck, noting that the trend
in Congress, the Supreme Court, and the Board has
been, since the closed shop was outlawed in 1947, to-
ward voluntary unionism and the principle that the
‘‘membership’’ that can be required under Section
8(a)(3) is a financial obligation, narrowed still further
in Beck to enable employees to object to and be re-
lieved of paying dues expended for nonrepresentational
purposes. I agree with these observations.
When the majority goes further, however, I part
company with it. The majority finds the union-security
area fraught with confusion. It criticizes Section
8(a)(3)’s language for failing to apprise employees of
their rights, and it finds, as a factual matter, that em-
ployees do not know these rights, and that the empir-
ical evidence of confusion moves it to examine the
clause in this case. The majority cites a 1981 article19
for its finding that unions and employers ‘‘frequently’’
fail to inform employees of their rights,20 with the ef-
fect, noted in 1983, that the ‘‘average’’ unionized em-
ployee ‘‘may well’’ not understand the obligation the
union-security clause imposes. The ‘‘average’’ employ-
ee’s lack of understanding is ‘‘widespread’’; the major-
ity quotes articles published in 1983, 1977, and 1976
as authority for this finding.21 None of these articles
provides any supporting data for these conclusions.
Thus, the ‘‘confusion’’ that prompted the majority to
create a new unfair labor practice was observed most
recently over a decade ago.
Assuming for argument’s sake that subjective em-
ployee response is an appropriate ground for deter-
mining whether the clause here is deficient enough to
require a notice remedy, which I do not concede, a
sounder procedure is to examine the General Counsel’s
factual showing to determine whether unit employees
at Paramax were confused or misled about their union-
security obligations or whether the Union had been
using the contract language to attain unlawful ends,
and whether, if such confusion existed, the Union had
acted to clarify the matter. As the General Counsel has
failed to present the testimony of even one employee
that such confusion exists or any other evidence of
confusion or misinformation, I would find that the
record is devoid of evidence to support an inference
that such confusion exists in the Paramax bargaining
unit, much less that it is widespread.22 Further, the
General Counsel has not introduced evidence that the
Union has failed to notify employees of their right to
become nonmembers, so that, even if such confusion
existed, there is no evidence to support an inference
that the Union permitted it to persist.
The entire factual basis for the majority’s holding,
then, is the opinion, 10 to 17 years old, of individuals
whose unstated credentials, points of view, research
methods, and possible biases render reliance on their
assertions, without further foundation, unacceptable
under the most minimal standards of evidence. But, as
these individuals commented on an industrial climate
and a state of law quite different from today’s, their
observations are totally irrelevant to the resolution of
the issues here: whether the Board has the authority to
find an unfair labor practice on the basis of the mainte-
nance of a facially lawful contract clause and, if so,
whether the Union acted unreasonably, arbitrarily, or
1047ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
23 To be sure, my colleagues find, in addition to the factual confu-
sion, that employees would ‘‘reasonably believe that full member-
ship in good standing is required.’’ But this observation does not re-
sult from the application of an objective standard of reasonableness,
and appears to be no more than a variation of the finding that aver-
age employees are confused and that the confusion is widespread.
Again, in any event, even if the majority were applying a ‘‘reason-
able interpretation’’ standard, that standard would still be erroneous,
as the standard for Board intervention is not reasonable clarity but
facial unlawfulness.
24 As noted above, however, no evidence has been adduced that
the Union failed to clarify the minimum union-security obligation,
and the record evidence tends to indicate that the Union had in fact
done so. Further, my colleagues reaffirm the lawfulness of the lan-
guage at issue today. Thus, no basis in either fact or law exists for
the majority’s conclusion that the Union acted in bad faith.
25 I note that in the cases cited by the majority, an employee suf-
fered some loss because of the union’s failure to provide information
in the union’s possession. Such prejudice to an employee has not
been shown here.
26 One among the many crucial distinctions between cases in
which unions seek discharge for failure to meet union-security obli-
gations and this case is that in the discharge cases the violation is
based on a showing that the union failed to inform the employee
how much is owed or how it was calculated. By contrast, there is
no showing in this case that the Union failed to inform unit employ-
ees of the right to be a nonmember fee-payer. Compare Philadelphia
Sheraton Corp., 136 NLRB 888, 896 (1962), enfd. 320 F.2d 254 (3d
Cir. 1963) (‘‘The parties herein had a [] lawful union-security agree-
ment, and pursuant thereto could lawfully require [employees] to
tender the dues . . . but for one fatal deficiency—at no time was
either man told the amount of his dues or when such payments were
to be made’’ (emphasis in original)) with the General Counsel’s
Brief in Support of Exceptions at 6 (Charging Party Ferriso received
Respondent International’s notice regarding Beck rights). Supra at
1045.
in bad faith in maintaining the lawful contract provi-
sion.23
My colleagues next reject the General Counsel’s ar-
gument that the union-security clause is per se unlaw-
ful, finding that it can be interpreted as requiring that
employees remain paid up in fees and dues. I join
them in this interpretation of the language and, in my
view, the Board’s authority to review the contract lan-
guage, absent evidence that it has been used to gain
unlawful purposes, ends here. But again my colleagues
go further, and again I cannot follow them. They find
that the phrase ‘‘in good standing’’ renders the clause
ambiguous, because it could be interpreted to require
more than remaining paid up in fees and dues; in fact,
it is ‘‘likely’’ that employees will interpret the phrase
as requiring full union membership, with all its rights
and obligations; ‘‘at a minimum, they will be con-
fused.’’ This ambiguity, the majority concludes, dem-
onstrates that the Union has acted in bad faith by
maintaining an ambiguous clause without ‘‘taking
steps’’ to clarify an employee’s right to resign from
membership.24
To find this bad faith, the majority turns to the
union’s duty of fair representation, its origins, its appli-
cation to employees represented under the NLRA, the
Board’s adoption of it, and its gradual extension, by
the courts as well as by the Board, to many areas of
representation. The majority notes that the duty has
been described as akin to a ‘‘fiduciary’’ obligation and
concludes that the Supreme Court has ‘‘validated’’ the
comparability of the duty to a fiduciary responsibility,
and cites cases holding that, where a union has special
knowledge with respect to terms and conditions of em-
ployment that is vital to employees, it has a duty to
notify employees thereof.25 Finally, the majority
moves from holdings that, e.g., a union must inform a
delinquent employee of the exact amount owed and
how it was calculated when seeking discharge or that
a union must inform employees when hiring hall pro-
cedures change, to extend the duty to inform to the cir-
cumstances here, where the General Counsel has
shown no prejudice to any employee, where the union
has no unique access to the information respecting an
aspect of the employees’ terms and conditions of em-
ployment, and where there is no showing that the
union has failed to provide the information to employ-
ees. Conceding that the rule that unions must inform
employees of the exact amount of their arrearages be-
fore seeking discharge is based on radically different
facts than those here,26 the majority nonetheless rea-
sons that maintenance of the clause here involves a
‘‘statutory evil’’: ‘‘the employee is kept under the er-
roneous notion that he/she does not have a Section 7
right to resign from the union,’’ and accordingly the
Union must apprise all employees, not just those faced
with discharge, of the ‘‘precise extent of their obliga-
tions and rights.’’ This reasoning is a flawless example
of the Board’s ‘‘legislation through wishful thinking’’
condemned by the Supreme Court, and I agree with
the judge that such a result has the precise effect con-
demned in Paragon Products: a facially lawful con-
tract provision that has not been the basis for any un-
lawful conduct is, somehow, unlawful.
4. Does the Board have the authority to order a
union to provide notice to employees of statutory
rights based on the maintenance of a facially
lawful contract provision?
Before reaching whether the majority’s holding
squares with binding precedent on the duty of fair rep-
resentation, which it does not, I find that Supreme
Court precedent has foreclosed the Board from ‘‘legis-
lating’’ where Congress has not acted by ordering rem-
edies where the General Counsel has not shown that
conduct prohibited by the statute has occurred, simply
because, in the view of of a particular Board majority,
such an order would increase employee understanding
of Section 7 rights, or, in the majority’s words, get rid
of ‘‘statutory evils.’’ In Teamsters Local 357 v.
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 365 U.S. 667, supra, fn. 4. See also fn. 11, supra, and related
text.
28 Id. at 676 (emphasis added).
29 119 NLRB 883 (1957). See discussion at fn. 4, supra.
30 Id. at 895.
31 Id. at 896.
32 My colleagues’ other efforts to distinguish this case from Team-
sters Local 357 are also without merit. First, the majority observes
that Teamsters Local 357 was not decided under the duty of fair rep-
resentation but fails to state how that fact is relevant to the relation
between the two cases. Second, the majority notes that in Teamsters
Local 357, unlike here, employees were not ‘‘required to initiate any
communication with their exclusive representative in order to perfect
their statutory rights,’’ so that the notice there was prophylactic, and
therefore proscribed, but the notice here is remedial and therefore
permitted. With all due respect, I find this distinction incomprehen-
sible.
NLRB,27 the Court overturned the Board’s requirement
that a union post a notice to employees of their statu-
tory rights as a condition of operating a hiring hall.
The Board held that agreements to hire employees
through hiring halls, by their very existence, tend to
coerce employees to become union members in viola-
tion of their right, under Section 8(a)(3), to be free of
discrimination that encourages union membership, and
that it was necessary to assure that employees know
their rights so that they could exercise them.
In reversing the Board, the Court candidly recog-
nized that hiring halls do encourage union membership
and might benefit from further regulation and that em-
ployees do not always fully understand their statutory
rights. But the Court flatly rejected the Board’s effort
to assure that employees knew those rights. The Court
reasoned that Congress, not the Board, has the author-
ity to close gaps in the Act and that ‘‘where Congress
has adopted a selective system for dealing with evils,
the Board is confined to that system. . . . [T]he Board
cannot go further than Congress and establish a broad-
er, more pervasive regulatory scheme.’’28
The Court spoke in no uncertain terms. Where Con-
gress has not regulated conduct, the Board must keep
its hands off, even if it does not like what unions are
doing. The perfect fit between Teamsters Local 357
and this case is just as plain as the Court’s language.
As in Mountain Pacific, my colleagues assume that
facially lawful contract language—here the phrase ‘‘in
good standing’’ and in Mountain Pacific the provision
that hiring would be routed through a union-run hiring
hall—carries a risk that employees will not fully un-
derstand the language and consequently may not take
advantage of their right to refrain from union activities,
here by resigning from the Union if they wish and in
Mountain Pacific by continuing to seek jobs through
the hiring hall without joining the union. In this case,
as in the reversed Mountain Pacific, the Board major-
ity conditions a union’s agreement to the provision on
notifying employees of their statutory rights and, if a
union agrees to the provision without giving the notice,
it will have violated Section 8(b)(1)(A) even though
the provision itself is not unlawful. The fit between
Teamsters Local 357 and the facts here could not be
closer and the precedent could not be clearer, yet my
colleagues in the majority have made precisely the rul-
ing the Court foreclosed in 1961.
The majority’s distinction of Teamsters Local 357
from this case on the grounds that Teamsters Local
357 ‘‘does not deal with a clause that impairs Section
7 rights,’’ whereas the union-security clause here does
deal with such rights, is specious. In the Teamsters
Local 357 case, the Board was convinced that it was
protecting the most fundamental right of all—the right
to be free of discrimination and coercion in engaging
in or refraining from union activities—and yet the Su-
preme Court reversed the holding as beyond the
Board’s authority.
My reading of Section 7, and I am sure the majority
will agree, includes a guarantee of ‘‘the right to refrain
from any or all such activities [i.e., organization for
collective-bargaining activities].’’ Section 8(a)(3) pro-
hibits discrimination against employees ‘‘to encourage
or discourage membership in any labor organization
. . . .’’ and Section 8(b)(1)(A) forbids a union to ‘‘re-
strain or coerce [] employees in the exercise of rights
guaranteed in section 7 . . . .’’ In Mountain Pacific,29
the case overruled by Teamsters Local 357, the Board
viewed the control by unions of job prospects through
hiring halls as a serious threat to employees’ statutory
rights:
From the standpoint of the working force gen-
erally, those who, for all practical purposes, can
obtain jobs only through the grace of the Union
or its officials—it is difficult to conceive of any-
thing that would encourage their subservience to
union activity, whatever its form, than this kind of
hiring hall arrangement [contained in the parties’
bargaining agreement].30
The Mountain Pacific Board intended to protect em-
ployees from the ‘‘statutory evil’’ of ‘‘the inherent and
unlawful encouragement of union membership that
stems from unfettered union control over the hiring
process.’’31 I challenge the majority to explain how the
contract provision in Mountain Pacific, which, in that
Board’s view, permitted discrimination in hiring
against employees who refrained from union activity,
does not concern a statutory right while the facially
lawful union-security clause here does concern such a
right.32
Clear as the Teamsters Local 357 limits on the
Board’s regulatory authority are, however, the Court
went even further in a companion case to demonstrate
to the Board that it had no authority to compel unions
to provide remedies based on facially lawful agree-
1049ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
33 365 U.S. 694, supra, fn. 8.
34 Id. at 699–670 (citation omitted).
35 I note that circuit courts are interpreting a union’s duty of fair
representation with respect to union-security clauses under the RLA
and the NLRA with a greater sense of the flexibility that the labor
laws allow unions to exercise than the majority has exhibited today.
Some examples: In Crawford v. Air Line Pilots Assn., No. 88–2083
(4th Cir. Apr. 28, 1993), the court applied the Supreme Court’s most
recent and, some commentators have said, most flexible interpreta-
tion of a union’s duty in the public sector, Lehnert v. Ferris Faculty
Assn., 137 LRRM 2321 (1991), to hold that the union may charge
a pro rata share of strike benefits for other units to objecting fee
payers because under the practice of bargaining in the airline indus-
try, negotiations with other airlines determine the level of wages in
the unit at issue. In Grunwald v. San Bernardino City Unified School
District, No. 88–6619 (9th Cir. May 19, 1993), the court approved
the use of interest-bearing escrow accounts and provision of refunds
as justified where the union, pointing to the fluctuations in school
employment, cited sufficient reason to permit a deviation from the
strict Constitutional requirement that objectors not be forced, even
temporarily, to subsidize nonrepresentational activities. In Abrams v.
CWA, No. 87–2816 (D.D.C. Apr. 16, 1993), the U.S. District Court
for the District of Columbia has held that all aspects of the Commu-
nications Workers of America’s fee objector procedures, save the re-
quirement of mandatory arbitration, satisfy the union’s duty of fair
representation, including the publication of fee-objector information
in the CWA News.
36 111 S.Ct. 1127, 1134–1135 (1991). See also cases cited in fn.
3, supra.
37 Id. 1135.
38 Id. at 1136.
ments. In NLRB v. News Syndicate Co.33 the Court
flatly rejected Board arguments that contractual lan-
guage that could be interpreted as requiring discrimina-
tion could support a finding of a violation:
We will not assume that unions and employers
will violate federal law, favoring discrimination in
favor of union members against the clear com-
mands . . . of Congress. . . . ‘‘In the absence of
provisions calling explicitly for illegal conduct,
the contract cannot be held illegal because it
failed affirmatively to disclaim all illegal objec-
tives.’’34
My colleagues correctly reject the argument that the
provision at issue here calls ‘‘explicitly for illegal con-
duct.’’ Yet, ignoring the Court’s prohibitions, they
hold here that where a union is privileged to infringe
on a Section 7 right, it has a concomitant duty to ex-
plain that right and violates the Act if it fails to do so.
Such a view would be indubitably correct and might
even result in the avoidance of some ‘‘statutory
evils’’—if Congress had chosen to enact such a provi-
sion. In the absence of Congressional action, the ma-
jority’s holding exceeds the Board’s statutory powers.
5. The duty of fair representation and union-
security provisions
Even if my colleagues possessed the authority to
find the violation and order the remedy here, they have
failed to apply binding Supreme Court precedent with
respect to the duty of fair representation to the facts
at hand.35 The majority has allowed the analogy be-
tween a union’s duty to unit employees and the fidu-
ciary duty of, e.g., a trustee to a beneficiary, to swal-
low the actual legal standard governing the duty of fair
representation. The Supreme Court most recently re-
stated and reaffirmed the standard for a breach of the
duty in Air Line Pilots v. O’Neill:
a union breaches its duty of fair representation if
its actions are either ‘‘arbitrary, discriminatory, or
in bad faith’’. . . a union’s actions are arbitrary
only if, in light of the factual and legal landscape
at the time of the union’s actions, the union’s be-
havior is so far outside a ‘‘wide range of reason-
ableness’’. . . that it is wholly ‘‘irrational’’ or
‘‘arbitrary.’’36
I see no evidence that my colleagues have applied
this precedent to the facts here. Instead, they have al-
lowed the descriptive term ‘‘fiduciary’’ to suggest a
duty so lofty that its invocation alone justifies penal-
izing a union for virtually any action that displeases
any person with the standing to file a charge. O’Neill
itself demonstrates that the law does not hold a union
to such a high standard: in O’Neill, the Court dis-
missed allegations that a union had violated the duty
of fair representation by settling a strike so unfavor-
ably that many striking employees were worse off than
if the union had simply ended the strike. While the
Court rejected the union’s argument that its agreement
could not be scrutinized for rationality, it held that
‘‘any substantive examination of a union’s perform-
ance [in bargaining] must be highly deferential.’’37
The Court criticized the appeals court’s finding a vio-
lation for failing to recognize ‘‘the importance of eval-
uating the rationality of a union’s decision in the light
of both the facts and the legal climate . . . at the time
the decision was made.’’38 Finally, the Court noted
that one standard, and one standard alone, was to be
applied to all allegations of violations of the duty of
fair representation: whether the union’s conduct was
arbitrary, discriminatory, or in bad faith, in the context
of the factual and legal situation at the time of the
union’s decision.
In this case, it is undisputed that the union-security
clause the Union negotiated tracks the Keystone provi-
sion, language that was good law when the Union ne-
gotiated the provision and is still good law today. In
fact, the Union’s care to perform its duty conscien-
tiously has become its own downfall, as that care has,
under the majority’s twisted logic, become the basis
for a finding of bad faith. I cannot see how this
Union’s adherence to Board law ‘‘in light of the fac-
tual and legal landscape at the time of the union’s ac-
tions’’ equals conduct wholly irrational, arbitrary, or in
bad faith.
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 See fn. 18, supra.
40 As I would dismiss the complaint, I need not express a personal
position on the Keystone language and I do not do so here.
41 Thus, I do not suggest that other language would be rendered
unlawful by the propounding of this language. I would, however,
find that inclusion of the above language or a similarly inclusive
clause is evidence of a union’s conscientious attention to its duty of
fair representation with respect to union-security provisions.
42 Pattern Makers League v. NLRB, 473 U.S. 95 (1985).
Further, no factual predicate has been established for
the finding that employees are ‘‘confused’’ because the
Union has agreed to the ‘‘in good standing’’ language.
Moreover, even if some employees are ‘‘confused’’ or
the phrase is ambiguous, a union’s negotiation of a
contract provision with language in it that may confuse
some employee can hardly be considered bad faith. If
the duty of fair representation were applied as my col-
leagues have outlined here, then no notice, no contract
provision, no correspondence describing Beck rights,
no communication from a union to unit employees in-
volving statutory or contractual rights would be safe
from the allegation that the union violated its duty of
fair representation because someone was ‘‘confused’’
by the language chosen—even if the union directly
quoted Board law. The majority ought to revisit the
Board’s observations in Paragon that Keystone’s rigid
standards called too many lawfully administered con-
tracts into question and thus presented a danger to the
stability of agreements and to labor peace.39
6. Model union-security language
Today the majority reaffirms the Paragon Products
rule and, although it finds the language of the Key-
stone clause ambiguous, it does not explicitly overrule
that language. While I strongly agree that Paragon is
still good law, I find that the signals the majority sends
to practitioners and unions are muddled: Keystone is
ambiguous, but it is still good law; even though it is
still good law a union cannot agree to it without giving
notice to employees of how the courts have interpreted
their statutory rights under a union-security clause; the
notice must differ from the Keystone language, but the
majority provides no ‘‘safe harbor’’ language for such
a notice; finally, the majority orders the Union here to
provide such a notice where there has been no showing
that the Union has failed to notify employees of their
rights under the statute and binding Supreme Court
and Board case law.
In my view, consistency requires that if the majority
believes, as it appears to suggest, that Keystone is not
good law, then it should explicitly overrule Keystone’s
model clause and provide new ‘‘safe harbor’’ language
that conforms to the statute and binding precedent.40
One way of handling the Keystone model clause would
be to overrule it as a ‘‘safe harbor’’ insofar as it uses
the ‘‘in good standing’’ language; another way would
be to start from the statute and work out new language
that informs employees of their rights under the law in
neutral terms. As the majority is silent on these mat-
ters, choosing instead to shuffle the problems of draft-
ing such language off onto unions by creating another
unfair labor practice and ordering the fashioning of re-
medial language without troubling itself to devise such
a notice, I offer the language below as a guide and
‘‘safe harbor,’’ within the limits of Paragon Prod-
ucts,41 for unions in non-right-to-work States. In my
view, it reflects the law with respect to voluntary un-
ionism and union security established by Section
8(a)(3), Section 8(b)(1)(A), Pattern Makers,42 General
Motors, and Beck; in 8(f) situations only the dates of
the grace period would need to be changed.
If my colleagues find my suggestions inadequate, I
suggest that they wrestle with the difficulties of
crafting neutral language that reflects all applicable
law and binding precedent and only applicable law and
binding precedent.
Union-security and financial obligations of employ-
ees to the bargaining representative:
[EMPLOYER] and [UNION] exercise their
right, under Section 8(a)(3) of the National Labor
Relations Act and the laws of [STATE], to agree
to the following with respect to every employee
who is covered by this Agreement:
(1) Each employee must satisfy, as a condition
of employment in the unit, a financial obligation
(the Federal law describes this financial obligation
as ‘‘membership’’) to the Union as the unit’s ex-
clusive bargaining representative. This ‘‘member-
ship’’ obligation lasts for the life of this Agree-
ment. Employees have three ways to satisfy the
‘‘membership’’ obligation, listed here as section
1(a), (b), and (c). Each employee must choose one
of these ways to satisfy his/her obligation to the
Union. If an employee fails to pay the dues and
fees as described in (a), (b), or (c), whichever
he/she has chosen, then the Union, upon notice to
the employee of the exact amount owed and the
manner in which it was calculated, has the right
to seek the employee’s discharge from his/her unit
job. Each employee has the right to choose the
‘‘membership’’ status he/she wants without inter-
ference, restraint, or coercion:
(a) Full union member: The employee chooses
to join the Union as a full member, has all the
rights and duties accorded members, and must pay
the initiation fee (if applicable) and uniform peri-
odic dues charged by the Union;
(b) Financial core employee: The employee
does not become a member of the Union; thus,
he/she is not entitled to the full range of rights
and duties of membership. If the Union spends
1051ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
part of the dues and fees collected under this
Agreement on activities that are not necessary to
performing its duties as the exclusive bargaining
representative, this employee does not object to
having part of his/her dues and fees spend on
such activities. This employee must pay the initi-
ation fee (if applicable) and the uniform periodic
dues charged by the Union.
(c) Proportionate share employee: The em-
ployee does not become a full member of the
Union; thus, he/she is not entitled to the full range
of rights and duties of membership. Further, if the
Union spends part of the dues and fees collected
under this Agreement on activities that are not
necessary to performing its duties as an exclusive
bargaining representative, this employee gives the
Union proper notice that he/she objects to the
Union’s spending part of his/her dues and fees for
such activities. This employee must pay the per-
centage of the initiation fee (if applicable) and the
uniform, periodic dues charged by the Union that
is used for activities necessary to performing the
Union’s duties as exclusive bargaining representa-
tive.
(2) Each employee who is not a full member of
the Union on the effective date of this Agreement
(or hire date, whichever is later), has the right to
a ‘‘grace period’’ of 29 days in which to choose
his/her status. Thus,
(a) For all employees who are in the unit and
are not full Union members on the effective date
of this Agreement [or the Agreement’s date of
execution, whichever is later], their chosen status
and their obligation to pay dues and fees shall
begin on the 30th day after the effective date of
this Agreement [or the date the Agreement was
executed, whichever is later].
(b) For all new employees who are hired into
the unit during this Agreement’s life and are not
full Union members on the date of hire, their cho-
sen status and their obligation to pay dues and
fees shall begin on the 30th day after their date
of hire [or the date the Agreement was executed,
whichever is later].
(3) Employees may change their chosen status.
If an employee wishes to change his/her status,
he/she may do so upon appropriate and timely no-
tice to the Union. Federal law gives the Union the
right ‘‘to prescribe its own rules with respect to
the acquisition or retention of membership.’’
Unions are not permitted to prohibit employees
from resigning their full membership.
I respectfully dissent from the majority’s finding
that the Union violated Section 8(b)(1)(A) and from
the order requiring the Union to affirmatively notify
employees of the current state of the law respecting
union security.
APPENDIX
NOTICE TO MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT restrain and coerce you in the exer-
cise of rights guaranteed in Section 7 of the National
Labor Relations Act by maintaining a union-security
clause in our collective-bargaining agreement with
Paramax Systems Corporation requiring you, as a con-
dition of employment, to be ‘‘members of the Union
in good standing,’’ without informing you that the ex-
tent of your obligation under this clause is the ten-
dering of uniform initiation fees (if any) and dues.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL notify each Paramax unit employee in
writing that the only required condition of employment
under the union-security clause is the tendering of uni-
form initiation fees (if any) and dues.
INTERNATIONAL UNION OF ELECTRONIC,
ELECTRICAL, SALARIED, MACHINE AND
FURNITURE WORKERS, AFL–CIO
ENGINEERS UNION, LOCAL 444, INTER-
NATIONAL UNION OF ELECTRONIC,
ELECTRICAL, SALARIED, MACHINE AND
FURNITURE WORKERS, AFL–CIO
Jacquelyn Knight and Saundra Rattner, Esqs., for the Gen-
eral Counsel.
Sheldon Engelhard, Esq. (Vladeck, Waldman, Elias &
Engelhard, P.C.), of New York, New York, for Respond-
ent Local 444.
Robert Friedman, Esq., of Washington, D.C., for Respondent
International Union.
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 After briefs had been received, counsel for the Charging Party
sent me a letter, citing an additional case, and arguing its applica-
bility herein. Respondents sent letters opposing consideration of the
letter. Inasmuch as the time for briefs had expired, and no permis-
sion had been granted for supplemental citations of authority, I have
not considered Charging Party’s letter or the responses.
2 The name of the Employer was amended, as set forth, at the
hearing.
Hugh L. Reilly, Esq. (National Right to Work Legal Defense
Foundation), of Springfield, Virginia, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge and an amended charge filed by Lawrence Ferriso on
November 12, 1991, and January 6, 1992, respectively, a
complaint was issued on January 15, 1992, against Inter-
national Union of Electronic, Electrical, Salaried, Machine
and Furniture Workers, AFL–CIO (International), and Engi-
neers Union, Local 444, International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers Union,
AFL–CIO (Local).
The complaint alleges essentially that Respondents Inter-
national and Local have maintained in effect and enforced a
collective-bargaining agreement with the Employer which
contains an unlawful union-security clause in violation of
Section 8(b)(l)(A) and (2) of the Act. Respondents’ answers
deny the material allegations of the complaint, and set forth
certain affirmative defenses, which will be discussed, infra.
On June 11, 1992, a hearing was held before me in Brook-
lyn, New York.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses and after consid-
eration of the briefs filed by all parties, I make the fol-
lowing1
FINDINGS OF FACT
I. JURISDICTION
The Employer, Paraax Systems Corporation, former]y
known as Surveillance and Fire Control Systems Division
and the Systems Management Unit of Shipboard and Ground
Systems Group, Unisys Corporation,2 a Pennsylvania cor-
poration, having its principal office and place of business in
Great Neck, New York, is engaged in the manufacture, sale,
and distribution of computer and electronic equipment to the
United States Department of Defense, and to commercial
customers. During the past year, the Employer manufactured,
sold, and shipped computer and electronic equipment valued
in excess of $50,000 to the United States Department of De-
fense, and purchased and received at its Great Neck facility,
electronic components and other products valued in excess of
$50,000, directly from points outside New York State. Re-
spondents admit, and I find, that the Employer is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondents admit, and I find, that they are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE FACTS
Respondents and the Employer have been parties to collec-
tive-bargaining agreements since at least 1970. Respondents
have jointly been recognized as the exclusive collective-bar-
gaining representative of the employees in the following col-
lective-bargaining unit:
Al] employees employed by the Employer at its
plants located in Nassau, Suffolk, Kings, Queens, New
York, Bronx and Richmond Counties, State of New
York, in the following occupations and job classifica-
tions:
Senior Engineer, Engineer, Associate Engineer, As-
sistant Engineer, Senior Engineer-Materials, Senior En-
gineer-Components, Engineer-Materials or Components,
Associate Engineer-Materials or Components, Assistant
Engineer-Materials or Components, Senior Publications
Engineer, Publications Engineer, Associate Publications
Engineer, Assistant Publications Engineer, Senior De-
sign Engineer, Senior Logistics Specialist, Logistics
Specialist, Senior Engineer-Planning, Engineer Plan-
ning, Associate Engineer-Planning, Assistant Engineer
Planning, Senior Manufacturing Engineer, Manufac-
turing Engineer, Assistant Manufacturing Engineer,
Senior Quality Control Analyst, Quality Control Ana-
lyst, Assistant Quality Control Analyst, Plant Engineer,
Senior Estimator, but excluding all other employees, of-
fice clerical employees, guards and supervisors as de-
fined in the Act.
All the collective-bargaining agreements since 1970, in-
cluding the two most recent contracts, which ran from Sep-
tember 1988 to September 1991, and the latest, which was
executed on November 25, 1991, and was effective from
September 6, 1991, to February 3, 1995, contain the fol-
lowing, identical provision in article 3A-Union Membership:
All present employees of the Employer, and those who
in the future enter the bargaining unit, shall join the
Union by the thirtieth day following the beginning of
their employment, or by the thirtieth day following the
effective date of this provision, whichever is later, and
continue to remain members of the Union in good
standing as a term and condition of employment.
This clause has not been modified in any way, and re-
mains in effect.
It is this clause which forms the basis of the complaint,
which alleges that the collective-bargaining agreement re-
quires that employees become members of the Respondents
in good standing, but fails to state that the only condition of
continued employment of the employees in the unit is the
payment of initiation fees and dues. General Counsel accord-
ingly argues that the union-security clause, quoted above, is
unlawful on its face, and constitutes a per se violation of the
Act.
Charging Party Lawrence Ferriso has been employed by
the Employer for nearly 23 years. He joined the Local in
September 1974, and was a full dues-paying member until
1976, when, during a strike at the Employer, he resigned his
membership in the Local, crossed the picket line and re-
turned to work. Ferriso was fined by the Local for his activi-
1053ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
ties during the strike, and he then filed a charge against the
Local. The complaint which was issued alleged that the col-
lective-bargaining agreement required membership in good
standing in the Local as a term and condition of employ-
ment. After a hearing, a violation was found as to the
Local’s fining of Ferriso. Electronic Workers IUE Local 444
(Sperry Rand Corp.), 235 NLRB 98 (1978).
Ferriso is a dues-paying nonmember of Respondents, his
dues being deducted by checkoff.
Ferriso testified that when he was a member of the Local,
he attended union membership meetings, where he had an
opportunity to voice his opinion concerning proposals for
contract negotiations. At one time, he objected to the require-
ment in article 3 of the contract that required him to be a
member of the Local in good standing. However, nothing
further was done concerning his objection. He could not re-
call proposing to any official of Respondents, a modification
to that contractual provision.
Eugene Kelly, the senior labor relations supervisor of the
Employer, testified that the latest collective-bargaining agree-
ment, executed on November 25, 1991, is in full force and
effect.
Kelly stated that the procedure used when a new employee
begins work is that upon his reporting to his department, the
employee’s supervisor completes an introduction card which
is given to the Local’s shop steward who is employed in that
department. Within 30 days, the Local gives the employee a
membership dues-deduction card. When the card is signed, it
is returned to the Local, whose official sends the cards to the
Employer with a request that the appropriate dues and initi-
ation fees be deducted from the employee’s salary. Upon re-
ceipt of such a request, Kelly examines the forms to see if
such sums could properly be deducted at that time, and if so,
sends them to the payroll department with a request to follow
the instructions given in the Local’s letter. The payroll de-
partment then puts such information into the payroll system,
and begins deducting the appropriate sums, and sends them
to the Local.
It was stipulated that dues have been deducted from all
members of the bargaining unit represented by the Local dur-
ing the terms of the two latest collective-bargaining agree-
ments for those who have signed dues-authorization and
checkoff cards. The dues money goes to the Local, which
then sends a per capita tax to the District, and to the Inter-
national.
Kelly further stated that since at least 1985, neither Re-
spondent has requested that the Employer terminate anyone
because of their union membership or lack thereof. In this
connection, Ferriso testified that he has never been threat-
ened with discharge because he is not a member of the
Local.
Procedural Issue
The complaint alleges that the charge and the first amend-
ed charge were filed by Ferriso on November 12, 1991, and
January 6 1992, respectively, and served by certified mail
upon the Local on about November 14, 1991, and January
6, 1992, respective]y. The Local denies these allegations.
Having been informed by Sheldon Engelhard, attorney for
the Local, that he had not received copies of the charges,
Jacquelyn Knight, counsel for the General Counsel, on Janu-
ary 23, 1992, sent a letter to Engelhard, which contained
copies of the charges and complaint. She also sent such cop-
ies on that date to Francis Bianco, the secretary-treasurer of
the Local.
Bianco testified that he did not receive the original charge
or amended charge, but he did receive a copy of the January
23 letter sent by Knight to Engelhard, adding that that letter
included a copy of the complaint. A return receipt for the let-
ter to Bianco is dated January 27, 1992.
It was stipulated that Engelhard received a copy of the
charges and complaint with the January 23 letter. It was fur-
ther stipulated that prior to Engelhard’s sending a statement
of position on March 12, 1992, he conferred with the Local
concerning the allegations set forth in the charges, and the
Local’s position concerning those allegations. It was also
stipulated that the International’s statements of position dated
December 10, 1991, and January 13, 1992 concerning the
charges, was sent to the president of the Local and to
Engelhard.
Analysis and Discussion
General Counsel argues that the union-security clause is
unlawful on its face, and is per se unlawful because it fails
to state that the only condition of employment which may
properly be required is the payment of initiation fees and
dues. General Counsel arrives at the conclusion that the
clause is unlawful based upon the logical inferences to be
drawn from NLRB v. General Motors Corp., 373 U.S. 734
(1963), and Communication Workers v. Beck, 487 U.S. 735
(1988).
In General Motors, the Supreme Court held that a collec-
tive-bargaining agreement may permissibly require all em-
ployees to become union members as a condition of contin-
ued employment, but the ‘‘membership that may be so re-
quired has been whittled down to its financial core.’’ 373
U.S. at 742.’’ In other words, the membership obligation
consists only of the requirement that initiation fees and dues
be paid. In Beck, the Court held that a union violates its duty
of fair representation by using the fees and dues collected
from an objecting, dues-paying nonmember for activities un-
related to collective bargaining, contract administration, or
grievance adjustment.
General Counsel reasons from these cases that certain lim-
itations have been placed upon the union-security obligation,
and argues that the Respondents have violated the Act by not
setting forth these limitations in the union-security clause.
Specifically, the complaint alleges that Respondents violated
the Act by failing to state in the union-security clause that
the only condition of continued employment is the payment
of initiation fees and dues.
General Counsel concedes that there is no case law spe-
cifically requiring that this language be included in a union-
security clause of a collective-bargaining agreement. Rather,
General Counsel argues that the phrase ‘‘membership in
good standing’’ implies that the employee is required to sat-
isfy obligations other than the requirement to pay initiation
fees and dues. Counsel reasons further that in order to satisfy
their duty of fair representation, Respondents must (a) refrain
from leading employees to believe that their union-security
obligations are broader than they are in law and (b) must
clear up any confusion which employees may have as to
what their obligations are.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondents argue that the union-security clause here was
adopted from the model union-security clause suggested by
the Board in Keystone Coat, Apron & Towel Co., 121 NLRB
880, 885 (1958). In that case, the Board held that any con-
tract containing a union-security clause which does not ‘‘on
its face conform to the requirements of the Act’’ will not bar
an election. 121 NLRB at 883. The Board set forth a ‘‘model
union-security clause’’ as a guide, which was deemed by the
Board to be the ‘‘maximum permissible in conformity with
the requirements of the Act.’’ The clause stated:
It shall be a condition of employment that all employ-
ees of the Employer covered by this agreement who are
members of the Union in good standing on the effective
date of this agreement shall remain members in good
standing and those who are not members on the effec-
tive date of this agreement shall, on the thirtieth day [or
such longer period as the parties may specify] fol-
lowing the effective date of this agreement, become and
remain members in good standing in the Union. It shall
also be a condition of employment that all employees
covered by this agreement and hired on or after its ef-
fective date shall, on the thirtieth day following the be-
ginning of such employment [or such longer period as
the parties may specify] become and remain members
in good standing in the Union.
General Counsel argues, however, that the mode] clause in
Keystone was overruled by the Board in Paragon Products
Corp., 134 NLRB 662 (1961). I do not agree. The Keystone
clause was not overruled in Paragon. Rather, the Board in
Paragon, a representation case, found that in Keystone, a
union-security clause, although lawful on its face, was sub-
ject to a presumption of illegality if it ‘‘did not expressly re-
flect the precise language of the statute.’’ 134 NLRB at 664.
The Board reversed the requirement in Keystone that any
union-security clause, in order to bar a petition, must reflect
the language of Section 8(a)(3). The Board thus held in Par-
agon that only those contracts which contain a union-security
clause which is ‘‘clearly unlawful on its face . . . may not
bar a representation petition.’’ 134 NLRB at 666.
Accordingly, Keystone’s presumption of illegality for all
union-security clauses not tracking the language of the statute
was reversed in Paragon. Keystone’s application of the
model union-security clause to the contract bar issue was
overruled in Paragon. The model union-security clause itself
was not reversed or overruled.
Accordingly, Respondents’ reliance upon the Board ap-
proved model union-security clause in the contract involved
herein was proper. General Counsel further argues, however,
that even assuming that the model union-security clause
could be relied upon, the Board erred in Keystone in includ-
ing in the model clause the phrase ‘‘members in good stand-
ing in the Union.’’ General Counsel correctly argues that that
phrase is not included in the language of Section 8(a)(3) of
the Act which the Board stated its model clause was intended
to conform to. This is an argument that must be addressed
to the Board, and I reject it.
General Counsel’s complaint alleges precisely what was
condemned in Paragon—although not illegal on its face, a
presumption of illegality is being applied to the union-secu-
rity clause herein. The Board in Paragon, quoted the Su-
preme Court in NLRB v. News Syndicate Co., 365 U.S. 695
(1961):
We will not assume that unions and employers will
violate a federal law . . . against a clear command of
this Act of Congress. As stated by the Court of Appeals
‘‘In the absence of provisions calling explicitly for ille-
gal conduct, the contract cannot be held illegal because
it failed affirmatively to disclaim all illegal objectives.’’
I do not believe that Respondents have any obligation,
pursuant to the Act, to modify their union-security clause to
conform to case law as it has developed.
Inasmuch as the contractual language conforms to that set
forth in the model union-security clause approved by the
Board many years ago, and has not been overruled, I cannot
find that Respondents violated the Act by failing to include
additional language in such clause.
Other Defenses Raised by Respondents
Although my decision herein dismissing the complaint in
its entirety renders moot the Respondents’ other defenses, in
the event the Board overrules my decision herein, I will dis-
cuss such other defenses.
The complaint alleges that the Respondents maintained in
effect and enforced the collective-bargaining agreement
which contains the allegedly unlawful union-security clause.
The International admits the maintenance and enforcement of
that clause, but the Local denies that it has enforced it, rely-
ing upon the testimony of Ferriso that he has not been threat-
ened with discharge for failing to remain a member of Re-
spondents, and the testimony of Kelly that Respondents have
not directed that the Employer terminate anyone during the
period of the last two contracts because of their nonmember-
ship in Respondents.
The evidence establishes that the collective-bargaining
agreement and its union-security clause are in full force and
effect. Dues are being deducted by the Employer pursuant to
that clause and are remitted to Respondents. If the union-se-
curity clause is found unlawful, it would constitute a viola-
tion of the Act even if it was never enforced. American Tem-
pering, 296 NLRB 699, 707 (1989).
The Local also denies that it was properly and timely
served with copies of the charge and amended charge.
The charges were filed on November 12, 1991, and Janu-
ary 6, 1992. The Local denies that it received those charges.
However, its attorney admits receiving copies of the charges
and the complaint with General Counsel’s letter, which was
mailed on January 23, 1992. In addition, the International ad-
mits that it received the charges as alleged in the complaint.
In Buckeye Plastic Molding, 299 NLRB 1053 (1990), the
Board held that the failure to make timely service of a
charge on a respondent will be cured by timely service, with-
in the 10(b) period, of a complaint on the respondent, absent
a showing that the respondent is prejudiced thereby. The
Board also held in that case that service upon the respond-
ent’s attorney constituted proper service upon the respondent.
Here, the facts are quite similar. The Local denied service
of the charges. Its attorney, Engelhard, admitted receipt of
the charges and the complaint on about January 23, 1992,
which was the date General Counsel sent them to him.
Engelhard, as the Local’s attorney, is its agent, and his re-
1055ELECTRICAL WORKERS IUE LOCAL 444 (PARAMAX SYSTEMS)
ceipt of the charges and the complaint on about January 23,
1992, within the 10(b) period, which commenced on Novem-
ber 25, 1991, is valid service upon the Local. In addition, the
Local’s secretary-treasurer, Francis Bianco, admitted receiv-
ing the complaint on about January 27, 1992. Thus, under
Buckeye, the Local was properly served within the 10(b) pe-
riod.
In addition, the Local is an affiliate of the International.
Both organizations are described as the ‘‘Union’’ in rep-
resenting the unit employees herein. Their answers admit that
they have jointly been the exclusive collective-bargaining
representative of the unit employees and have jointly been
recognized as such by the Employer. As the joint representa-
tive of the employees, service on one constitutes service on
the other. Electrical Workers IUE (Spartus Corp.), 271
NLRB 607 (1984); Laborers (Associated General Contrac-
tors), 243 NLRB 405 fn. 1 (1979). Thus, inasmuch as the
International admits timely service of the two charges, the
Local was thereby timely served with the charges.
The Local also argues that the Board has failed to join a
necessary party herein, by failing to name the Employer as
a respondent. It contends that the Employer is a party to the
allegedly unlawful collective-bargaining agreement and there-
fore should have been included as a respondent in the com-
plaint.
I reject this argument. The Board has consistently held that
an employer is not a necessary party in cases involving vio-
lations of Section 8(b)(2) of the Act. Iron Workers Local 377
(M.S.B., Inc.), 299 NLRB 680, 684 (1990); Boilermakers
Local 37 (Delta Maintenance), 272 NLRB 326, 330 (1984).
It would therefore follow that the employer is not a nec-
essary party in a Section 8(b)(1)(A) case.
The Respondents further argue that inasmuch as General
Counsel was aware of the allegedly unlawful union-security
clause prior to the issuance of this complaint, and in fact had
set forth that clause in a prior complaint which was issued
in 1977, the General Counsel is therefore estopped from now
alleging that such provision violates the Act. In a related de-
fense, the Local argues that this complaint is time barred by
Section 10(b) of the Act.
The complaint is not time barred by Section 10(b) of the
Act. The complaint alleges a violation concerning the union-
security clause of the collective-bargaining agreement. That
agreement was executed on November 25, 1991. The charge
and first amended charge were filed on November 12, 1991,
and January 6, 1992, respectively, within the 10(b) period.
The fact that the identical clause has been in Respondents’
contracts for 22 years, but has not been the subject of a
charge, does not establish that the complaint is barred by
Section 10(b) of the Act.
Moreover, even if a charge had been filed in 1977, alleg-
ing the unlawfulness of the union-security clause, and assum-
ing that General Counsel had refused to issue a complaint,
such conduct would not preclude the General Counsel from
issuing a complaint on the identical clause now. The General
Counsel has unreviewable discretion to refuse to issue an un-
fair labor practice complaint.
[E]ven in cases involving identical conduct by the same
parties, the Board is not bound by the decision of a
General Counsel not to issue a complaint on a prior oc-
casion. [National Gypsum Co., 281 NLRB 593, 601, fn.
21 (1986).]
CONCLUSIONS OF LAW
1. Respondent International Union of Electronic, Electrical,
Salaried, Machine and Furniture Workers, AFL–CIO and Re-
spondent Engineers Union, Local 444, International Union of
Electronic, Electrical, Salaried, Machine and Furniture Work-
ers Union, AFL–CIO are labor organizations within the
meaning of Section 2(5) of the Act.
2. Paramax Systems Corporation, formerly known as Sur-
veillance and Fire Control Systems Division and the Systems
Management Unit of Shipboard and Ground Systems Group,
Unisys Corporation, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. Respondents have not violated the Act as alleged.
[Recommended Order for dismissal omitted from publica-
tion.]