Electrical Workers Local 48 (Kingston Constructors)

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1482 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1492
International Brotherhood of Electrical Workers,
Local 48, AFL–CIO (Kingston Constructors,
Inc.) and Patrick Mulcahy. Case 36–CB–2052
December 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On March 19, 1998, Administrative Law Judge Timo-
thy D. Nelson issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed a brief in support of the judge’s deci-
sion and in opposition to the General Counsel’s excep-
tions.1 Amici curiae National Electrical Contractors As-
sociation, Inc. and International Brotherhood of Electri-
cal Workers, AFL–CIO filed a brief in support of the
judge’s decision.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The complaint alleges that the Respondent Union, In-
ternational Brotherhood of Electrical Workers, Local 48,
AFL–CIO (IBEW Local 48 or Local 48) violated Section
8(b)(1)(A) of the Act by threatening employees with dis-
charge, and violated Section 8(b)(2) by causing and at-
tempting to cause Charging Party Patrick Mulcahy to be
discharged, for failing to pay dues under the Union’s
“market recovery program” (MRP), under which the Un-
ion subsidizes the wage rates paid by union contractors
on selected projects. For the reasons discussed below,
we agree with the judge that Local 48 did not violate the
Act by attempting to collect MRP dues that were based
on earnings derived from employment on projects that
were not covered by the Davis-Bacon Act.2 We find,
however, that the Union violated Section 8(b)(1)(A) by
threatening employees with discharge for failing to pay
MRP dues owing from their employment on Davis-
Bacon projects.

1 The General Counsel also filed a motion to take administrative no-
tice of certain documents of the U.S. Department of Labor and General
Accounting Office. The Respondent filed an opposition. The General
Counsel’s motion is in reality a motion to reopen the record. Sec.
102.48(d)(1) of the Board’s Rules and Regulations requires a party
moving to reopen the record to explain why the proffered evidence was
not presented previously and that, if adduced and credited, it would
require a different result. The proffered documents antedate the hear-
ing in this case, and the General Counsel has neither explained why
they were not introduced at the hearing nor shown that they would
require a different result. We therefore deny the motion. See, e.g.,
Foster Electric, 308 NLRB 1253 fn.1 (1992).
2 40 U.S.C. Sec. 276a et seq. The Davis-Bacon Act requires contrac-
tors on federally funded construction projects to pay prevailing area
wage rates without deductions or rebates. We discuss the Davis-Bacon
Act and its significance for this case below.
Factual Background
The relevant facts are not in dispute, and are set forth
in detail in the judge’s decision. Local 48 has a bargain-
ing relationship with the Oregon-Columbia chapter of the
National Electrical Contractors Association (ONECA).
Numerous members of ONECA and other contractors
have assigned their bargaining rights to ONECA. During
1995,3 the then-current collective-bargaining agreement
between Local 48 and ONECA contained a facially valid
union-security provision requiring covered employees to
become and remain members of Local 48 as a condition
of employment.
The Market Recovery Program was inaugurated in
1986 in an attempt to recover for unionized electrical
contractors in the Portland area, and for the union mem-
bers who worked for them, some or all of the market
share they had lost to lower wage nonunion firms during
the previous decade. Local 48’s aim in creating the MRP
was to establish a fund, consisting entirely of the Union’s
money, to promote union electrical construction. The
fund would do this principally by paying wage supple-
ments to union contractors on certain projects so that
they would be able to bid those jobs on the basis of wage
rates lower than the union scale but still be able to pay
employees the union rate.4 Thus, for example, suppose
that the contractually established hourly wage rate for
union journeymen was $25, but a union contractor was
competing for a project with a nonunion firm paying
only $20. Rather than submit a noncompetitive bid, the
union contractor (after receiving the approval of Local
48) could bid the job on the basis of projected wage costs
of $20 an hour but pay his employees $25; the Union
would make up the $5 difference out of MRP funds.
The MRP was funded entirely out of dues paid by em-
ployees working under Local 48’s contract with
ONECA. In addition to their basic dues and working
dues,5 employees paid what were styled “additional
working dues” equal to 3.5 percent of gross wages into
the MRP fund. MRP dues could be paid either through
voluntary checkoff, direct payment to the Union, or
transfers from the employee’s credit union account.6
3 All dates refer to 1995 unless otherwise noted.
4 As the judge found, MRP funds can also be used for related pur-
poses such as advertising and organizing. By far the largest portion of
the funds, however, is spent for wage subsidies.
5 Regardless of their employment status, all members were required
to pay “basic dues” of $1.70 each month, plus “working dues” based on
their hourly rate of pay during times at which they were employed.
6 The judge found that the Union had largely abandoned checkoff as
a method of collecting MRP dues by 1995. The General Counsel has
excepted to that finding. Because this issue has no bearing on our
332 NLRB No. 161
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1493
MRP funds were kept in a separate account from Local
48’s general fund. However, the payments into the MRP
fund have always been considered to be dues by the Un-
ion and have been reported as dues in its annual LM-2
reports filed with the Department of Labor pursuant to
the Labor Management Reporting and Disclosure Act.7
If an employee became delinquent in paying his dues,
including MRP dues, the Union’s consistent practice was
first to send him a letter informing him of the arrears and
advising him that if he did not respond, the Union would
ask the employer to discharge him. If the employee still
did not make the required payment, the Union would
send a “stop work” notice to his employer, with a copy to
the employee, requesting that he be discharged.8 The
record establishes that numerous letters of both kinds
were sent during the period covered by the complaint.
On June 21, 1995, Charging Party Mulcahy, a member
of Local 48, went to work for Kingston Constructors. On
June 27, Local 48 sent him a form letter advising him
that he was delinquent in his MRP dues in the amount of
$377.32. The delinquency arose from an earlier period
of employment with Excalibur Electric, which had re-
fused Mulcahy’s request to check off his MRP dues. The
letter informed Mulcahy that if he did not respond, the
Union would send a “stop work” notice to Kingston.
Mulcahy did not respond. On July 13, Local 48 sent a
“stop work” letter to Kingston, with a copy to Mulcahy,
requesting that Mulcahy be discharged for failing to
comply with the collective-bargaining agreement. On
June 18, Kingston terminated Mulcahy for failing to pay
union dues pursuant to the terms of the collective-
bargaining agreement. Mulcahy then paid the arrearage
and was reinstated at Kingston without actually losing
any earnings.
A similar episode took place in October. Mulcahy was
working for L.K. Comstock & Co. when Local 48 threat-
ened him with discharge for failing to pay MRP dues
while working briefly for Blessing Electric in June. This
time, Mulcahy paid the arrearage, and there is no allega-
tion that the Union attempted to have him discharged.
Issues Presented
The General Counsel alleges that the Union violated
Section 8(b)(1)(A) by threatening Mulcahy and other

(1969).

decision, we find it unnecessary to pass on the General Counsel’s ex-
ception.
7 By contrast, the Union considers other payments, such as jury duty
assessments and death benefit assessments, to be assessments rather
than dues.
8 According to the testimony of Local 48’s business manager, Gerald
Bruce, the Union abandoned this policy in February 1997, and since
then has attempted to enforce its dues requirements through civil
collection procedures. There is no contention that the Union’s actions
in this regard were unlawful. Cf. Scofield v. NLRB, 394 U.S. 423
employees with discharge, and violated both Section
8(b)(1)(A) and (2) by causing Kingston to discharge
Mulcahy, for failing to pay MRP dues. The General
Counsel contends that MRP dues are not “periodic dues”
within the meaning of Section 8(a)(3) and 8(b)(2) and
therefore that the Union and employers cannot lawfully
make payment of those dues a condition of employment.
In support of his contention, the General Counsel takes
two alternative positions, each of which is based on one
of two mutually inconsistent Board decisions on the sub-
ject of what kinds of payments can be considered to be
“periodic dues.” The first of those decisions is Team-
sters Local 959 (RCA Service Co.), 9 in which the Board
held that the term refers only to payments that are for the
purpose of supporting the union in its role as collective-
bargaining agent. The General Counsel argues that, if
that is the test, MRP dues are not “periodic dues” be-
cause they have a narrow, specialized purpose and be-
cause they do not support Local 48 in its capacity as col-
lective-bargaining agent.
The other decision is Detroit Mailers Local 40,10 in
which the Board rejected any attempt to distinguish be-
tween dues allocated for collective-bargaining purposes
and those earmarked for the union’s institutional ex-
penses. The Board held that dues may be required under
a union-security clause “so long as they are periodic and
uniformly required and are not devoted to a purpose
which would make their mandatory extraction otherwise
inimical to public policy.”11 The General Counsel urges
the Board to follow Detroit Mailers and abandon Team-
sters Local 959. He contends that, under the Detroit
Mailers test, MRP dues are not “periodic dues” that can
be lawfully required under a union-security agreement on
Davis-Bacon projects. The General Counsel further con-
tends, however, that requiring the payment of MRP dues
under a union-security agreement on non-Davis-Bacon
projects is not “inimical to public policy,” and therefore
would be lawful under Detroit Mailers.
The judge found that the Board in Detroit Mailers im-
plicitly overruled Teamsters Local 959 and therefore that
the Detroit Mailers analysis was the appropriate one for
assaying the lawfulness of MRP dues. He also found
that requiring the payment of MRP dues on non-Davis-
Bacon projects was not unlawful. For the reasons dis-
cussed below, we agree with those findings.
The judge further found that the issue of the lawfulness
of requiring the payment of MRP dues on Davis-Bacon
projects was not presented in this case. He reached that
conclusion because he found that the General Counsel
9 167 NLRB 1042, 1045 (1967).
10 192 NLRB 951 (1971).
11 Id. at 952.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1494
had failed to establish a basis for asserting jurisdiction
over any contractor identified in the record whose opera-
tions may have been affected by the Union’s attempts to
collect MRP dues on Davis-Bacon projects. As we ex-
plain below, we disagree with the judge on the jurisdic-
tional question, and we therefore find that the Davis-
Bacon issue is properly before us. On the merits, we find
that the Union’s attempts to require the payment of MRP
dues on Davis-Bacon projects was unlawful.
Analysis
1. Section 8(a)(3) provides that it is unlawful for an
employer “by discrimination in regard to hire or tenure
of employment or any term or condition of employment
to encourage or discourage membership in any labor or-
ganization[.]” The first proviso to Section 8(a)(3) allows
an employer and a union that represents a majority of the
employer’s employees under Section 9(a) to agree to
make union membership a condition of employment after
an employee has been employed for 30 days. The sec-
ond proviso to Section 8(a)(3) states that

[N]o employer shall justify any discrimination against
an employee for nonmembership in a labor organiza-
tion . . . (B) if he has reasonable grounds for believing
that membership was denied or terminated for reasons
other than the failure of the employee to tender the pe-
riodic dues and the initiation fees uniformly required as
a condition of acquiring or retaining membership.

Section 8(b)(2) states that it is an unfair labor practice for a
labor organization

to cause or attempt to cause an employer . . . to dis-
criminate against an employee with respect to whom
membership in such organization has been denied or
terminated on some ground other than his failure to
tender the periodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining
membership.

Section 8(f) allows unions and employers in the construc-
tion industry to enter into agreements requiring employees,
as a condition of employment, to become union members
after 7 days on the job, even if the union is not recognized as
the majority representative. The first proviso to Section 8(f)
states that the second proviso to Section 8(a)(3) shall apply
in the case of such agreements. Thus, a union may lawfully
cause or attempt to cause an employer to fire an employee
who is covered by an 8(a)(3) or 8(f) union-security agree-
ment and who refuses to pay the “periodic dues and the
initiation fees uniformly required as a condition of acquiring
or retaining [union] membership,” and the employer may
lawfully comply with such a request.
A question that often arises in cases like this, when a
union has sought to compel an employee to make pay-
ments to the union on pain of discharge, is whether the
payments in question constitute “periodic dues . . . uni-
formly required.” Even when payments are periodic
(i.e., ongoing and regularly recurring) and uniform, it is
not always clear whether they are “dues,” especially if
they are earmarked for special purposes. The question
has often been couched in terms of whether the payments
at issue are “dues” or “assessments”—the latter term
seemingly having been used (not entirely helpfully) to
mean any payments that are not “dues.”12 The regular
and recurring nature of such payments is typical of dues,
but their dedication to specific purposes, rather than to
the general support of the union, is more suggestive of
assessments. In addressing this issue, the Board at times
has considered, among other things, whether the union
itself deemed the payments “dues” or “assessments” and
whether the payments were kept in separate accounts or
commingled with revenues from regular dues.13
In Teamsters Local 959, the Board defined “dues” as
funds collected for the maintenance of a union in its role
as the employees’ collective-bargaining representative.
The Board quoted from the Supreme Court’s decision in
Radio Officers:14

The legislative history clearly indicates that Congress
intended to prevent utilization of union security agree-
ments for any purpose other than to compel payment of
union dues and fees. Thus Congress recognized the va-
lidity of unions’ concern about “free riders,” i.e., em-
ployees who receive the benefits of union representa-
tion but are unwilling to contribute their share of finan-
cial support to such union, and gave unions the power
to contract to meet that problem while withholding
from unions the power to cause the discharge of em-
ployees for any other reason.

The Board thus reasoned that

the right to charge “periodic dues” granted unions by
the proviso to Section 8(a)(3) is concerned exclusively
with the concept that those enjoying the benefits of col-
lective bargaining should bear their fair share of the
cost incurred by the collective-bargaining agent in rep-
resenting them. But it is manifest that dues that do not
contribute, and that are not intended to contribute, to

12 See, e.g., Food & Commercial Workers Local 1 (Big V Supermar-
kets), 304 NLRB 952 (1991), enfd. 975 F.2d 40 (2d Cir. 1992).
13 See, e.g., Anaconda Copper Mining Co., 110 NLRB 1925, 1926–
1927 (1954); Carpenters Local 455 (Building Contractors), 271 NLRB
1099, 1100 (1984).
14 Radio Officers Union (A.H. Bull Steamship Co.) v. NLRB, 347
U.S. 17, 41 (1954), quoted at 167 NLRB at 1044–1045.
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1495
the cost of operation of a union in its capacity as a col-
lective-bargaining agent cannot be justified as neces-
sary for the elimination of “free riders.”15

The Board adopted the following distinction between dues
and assessments that the Third Circuit drew in Food Fair
Stores:16

It is clear that the term “periodic dues” in the
usual and ordinary sense means the regular pay-
ments imposed for the benefits to be derived from
membership to be made at fixed intervals for the
maintenance of the organization. An assessment, on
the other hand, is a charge levied on each member in
the nature of a tax or some other burden for a special
purpose, not having the character of being suscepti-
ble of anticipation as a regularly recurring obligation
as in the case of “periodic dues.”

Applying that test, the Board held that the payments then in
question, which were collected for a credit union and a
building fund, were “assessments” and not “periodic dues.”
Although the payments were regularly recurring, the Board
found that they were for a special purpose; they were not for
the maintenance of the union as an organization and could
be terminated without affecting the union’s continued exis-
tence as the employees’ bargaining agent. The Board there-
fore found that the union violated Section 8(b)(1)(A) by
threatening to enforce those provisions by requesting the
employer to discharge employees who did not pay them.17
In Detroit Mailers, however, the Board expressly dis-
approved the reasoning in Teamsters Local 959. There,
the trial examiner had found that the union’s pension and
mortuary funds and its printers home fund were special
purpose funds that were not related to the cost of collec-
tive bargaining. He therefore found that payments into
those funds were not “periodic dues” that could be re-
quired under the union-security agreement. The Board
disagreed. Noting that Section 8(a)(3) allows unions to
require all employees covered by valid union-security
agreements to pay “periodic dues” as a condition of em-
ployment, the Board held that

Neither on its face nor in the congressional purpose be-
hind this provision can any warrant be found for mak-
ing any distinction here between dues which may be al-
located for collective-bargaining purposes and those
earmarked for institutional expenses of the union. As
recognized by the Supreme Court in the Schermerhorn
case, “dues collected from members may be used for a

15 167 NLRB at 1045.
16 Food Fair Stores v. NLRB, 307 F.2d 3, 11 (1962), quoted at 167
NLRB at 1045 (emphasis added by the Board).
17 167 NLRB at 1045.
‘variety of purposes, in addition to meeting the union’s
costs of collective bargaining.’ Unions ‘rather typi-
cally’ use their membership dues ‘to do those things
which the members authorized the union to do in their
interest and on their behalf.’” By virtue of Section
8(a)(3), such dues may be required from an employee
under a union-security contract so long as they are pe-
riodic and uniformly required and are not devoted to a
purpose which would make their mandatory extraction
otherwise inimical to public policy.18

Finding that the payments in question were periodic, uni-
formly required, and not “inimical to public policy,” the
Board held that the union could lawfully enforce their pay-
ment under the union-security clause.
In reaching that conclusion, the Board distinguished
Teamsters Local 959 on its facts but did not explicitly
overrule it. Nevertheless, we agree with the judge in this
case that Detroit Mailers implicitly overruled Teamsters
Local 959. The rationale of Detroit Mailers is obviously
incompatible with that of Teamsters Local 959 and, as
we have noted, the Board in Detroit Mailers expressly
disapproved of the reasoning in the earlier case. We
therefore find that Teamsters Local 959 did not survive
Detroit Mailers and that the latter decision sets forth the
Board’s framework for determining whether particular
employee payments to unions constitute “periodic dues”
within the meaning of Section 8(a)(3) and 8(b)(2).19
In any event, we think that the Detroit Mailers test is
more consistent with the policies underlying Section
8(a)(3) and 8(b)(2) than Teamsters Local 959. It is true,
as the Board observed in Teamsters Local 959, that in
enacting the Taft-Hartley amendments in 1947, Congress
recognized the potential “free rider” problem that might
arise from outlawing the closed shop, and wanted to em-
power unions to require all employees whom they repre-
sented to support the unions financially. Contrary to
what the Board said in Teamsters Local 959, however,
that does not mean that “dues” for purposes of Section
8(a)(3) and 8(b)(2) include only payments that support
the union in its capacity as the bargaining agent.
As the Supreme Court held in NLRB v. General Mo-
tors Corp.,20 an employee who is represented by a union
under a union-security clause does not have to join the
union; he need only pay the union’s dues and fees. And
18 192 NLRB at 951–952, quoting Retail Clerks v. Schermerhorn,
373 U.S. 746, 753–754 (1963).
19 We also think that Detroit Mailers implicitly overruled earlier de-
cisions to the extent that they relied on such factors as whether the
union regarded payments as dues or assessments and whether the pay-
ments in question were placed in separate accounts.
20 373 U.S. 734, 742 (1963).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1496
in Communications Workers v. Beck,21 the Court held
that a union cannot require a nonmember, over his objec-
tion, to pay dues and fees that are not used for collective
bargaining, contract administration, and grievance ad-
justment activities.
Thus, no employee working under a union-security
agreement can be compelled to pay the union for any-
thing other than its services as his bargaining representa-
tive. To take advantage of that right, however, the em-
ployee must either resign from the union or refuse to
become a member, and file a Beck objection. If he does
not choose to be a nonmember and object, the union can
lawfully charge him full dues and fees.22 If a nonobjec-
tor refuses to pay a portion of those dues or fees, the un-
ion may threaten to have him discharged, and may seek
and obtain his discharge, without violating Section
8(b)(1)(A) or (2).
Teamsters Local 959 is inconsistent with these princi-
ples. Under that decision, a union could not lawfully
require even its members to pay dues that did not support
the union in its capacity as collective-bargaining agent.
As the Union points out, such a rule would obliterate the
distinction between members and Beck objectors. It
would, in substance, allow employees to dictate the terms
on which they would be union members. We find noth-
ing in Beck to suggest that the Supreme Court had any
such result in mind.23
In sum, we agree with the Board in Detroit Mailers
that a union may lawfully require union members, and
nonmembers who have not filed Beck objections, to pay,
as a condition of employment, all dues that are periodic,
uniformly imposed, and not devoted to a purpose that is
inimical to public policy.24 Beck objectors can be re-

21 487 U.S. 735 (1988).
22 The Board has held that “Beck rights [including the right to pay
only the portion of dues that are spent on representational activities]
accrue only to nonmembers.” California Saw & Knife Works, 320
NLRB 224, 235 fn. 57 (1995), enfd. sub nom. Machinists v. NLRB, 133
F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525
U.S. 813 (1998). See also Kidwell v. Transportation Communications
International Union, 946 F.2d 283, 292–297 (4th Cir. 1991), cert. de-
nied 503 U.S. 1005 (1992) (holding that an employee under the Rail-
way Labor Act may either belong to the union and pay full dues or elect
nonmembership and pay only the portion of dues related to collective-
bargaining activities).
23 The Board decided Teamsters Local 959 more than 20 years be-
fore the Supreme Court rendered its decision in Beck. The Board thus
was writing at a time when the Court had not yet ruled that nonmem-
bers may object to paying dues for nonrepresentational purposes. Had
the Board been informed by Beck, it might have reached a different
result, or at least adopted a different test, in Teamsters Local 959.
24 We disavow the Board’s sweeping suggestion in Big V Supermar-
kets that the Supreme Court in Beck implicitly disapproved Detroit
Mailers. 304 NLRB at 952 fn. 2. In our view, the Court in Beck disap-
proved Detroit Mailers only to the extent that, under Detroit Mailers,
unions could have exacted full dues even over the objections of non-
quired to pay only the dues that support the union in its
capacity as bargaining representative. In a proper case,
we may be called on to decide whether payments that
support job targeting programs, such as the MRP, can be
required of Beck objectors. In this case, however, there is
no evidence that any employee whom the Union sought
to obligate to pay MRP dues under the union-security
clause was a Beck objector. Mulcahy was a longtime
member of Local 48. Union Business Manager Gerald
Bruce testified that Local 48 did not represent any Beck
objectors. The General Counsel has not alleged that
Beck issues are involved in this case in any way. Thus,
we need not and do not decide whether Beck objectors
can be required to pay MRP dues.
2. We now turn to the question of whether Local 48’s
MRP dues qualify as “periodic dues” under Detroit
Mailers. We note initially that there is no contention that
MRP dues are not periodic or uniformly imposed.25 The
only question, then, is whether MRP dues are “devoted
to a purpose which would make their mandatory extrac-
tion otherwise inimical to public policy.”
The General Counsel contends that it is not against
public policy for a union to collect MRP dues pursuant to
a union-security agreement on non-Davis-Bacon pro-
jects. He therefore concedes that, under Detroit Mailers,
the Union did not act unlawfully by enforcing its MRP
dues requirement on such jobs. We agree.
The Board has held that “job targeting” programs, such
as the Union’s MRP program, are not inconsistent with
public policy and are affirmatively protected by Section
7.26 As the administrative law judge in Manno Electric
stated, “The objectives of the ‘job targeting program’ are
to protect employees’ jobs and wage scales. These ob-

members. As the Board noted in Big V Supermarkets, Beck concerned
only nonmember objectors, not union members or nonmembers who
have not objected. Beck does not, in our opinion, cast doubt on Detroit
Mailers’ holding that unions may lawfully require the latter groups to
pay full dues and fees as a condition of employment.
25 The General Counsel argued to the judge that MRP dues were not
uniformly imposed because they are not charged to members who are
not working under Local 48’s “inside agreement.” The judge rejected
that argument, and the General Counsel has not repeated it in his excep-
tions. Indeed, the General Counsel’s brief in support of exceptions
affirmatively states that “There is no question raised in this case that
[MRP dues] are not periodic and not uniform,” and that “In applying
the Detroit Mailers test it is undisputed that the [MRP dues] are peri-
odic and uniformly required of all members.” In any event, the Board
has held that uniformity exists when, as in this case, payments are
required of all similarly situated employees. Stage Employees Local
409 IATSE (RCA Service Co.), 140 NLRB 759, 764 fn. 8 (1963). But
see Electrical Workers Local 357 v. Brock, 68 F.3d 1194, 1203 (9th
Cir. 1995).
26 Manno Electric, 321 NLRB 278, 298 (1996); Associated Builders
& Contractors, 331 NLRB No. 5, slip op. at 1 fn. 1, J.D. slip op. at 7–8
(2000).
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1497
jectives are protected by Section 7.”27 And as the judge
in this case noted, Local 48’s MRP itself has withstood
scrutiny under the antitrust laws.28 There is no conten-
tion here that, on non-Davis-Bacon projects, job target-
ing programs such as the MRP offend public policy in
any respect. We therefore find that collecting MRP dues
under a union-security agreement on non-Davis-Bacon
jobs is not inimical to public policy, and that the Union
did not act unlawfully by attempting to enforce the pay-
ment of MRP dues as a condition of employment on such
jobs.
3. The General Counsel does contend that the Union
violated public policy by requiring the payment of MRP
dues as a condition of employment on Davis-Bacon jobs.
He cites a decision of the Department of Labor’s Wage
Appeals Board and two circuit court decisions, all of
which held that the collection of dues for such purposes
violates the Davis-Bacon Act.29 The General Counsel
reasons that, in light of those decisions, the Union cannot
lawfully collect MRP dues on Davis-Bacon projects, and
therefore that the Union violated Section 8(b)(1)(A) and
(2) by attempting to collect them on such projects under
the union-security clause.
As noted above, the judge did not reach the Davis-
Bacon issue, because he found that the General Counsel
had failed to establish a basis for the Board to assert ju-
risdiction over any contractor that was involved in a
Davis-Bacon project on which the Union had attempted
to collect MRP dues. The judge found that the General
Counsel had established jurisdiction over Kingston Con-
structors, which was Mulcahy’s employer when Local 48
first threatened him with discharge for failing to pay
MRP dues.30 But although the Kingston project was a
Davis-Bacon job, the Union was not attempting to collect
MRP dues from Mulcahy arising from his employment
with Kingston; instead, the MRP dues were owed for a
previous term of employment with Excalibur, on a non-
Davis-Bacon job. The judge therefore found, and we
agree, that Davis-Bacon was not implicated in those cir-
cumstances.

27 321 NLRB at 298.
28 Phoenix Electric Co. v. National Electrical Contractors Assn,. 81
F.3d 858 (9th Cir. 1996).
29 U. S. Department of Labor, Wage Appeals Board, In the Matter of
Building and Construction Trades Unions Job Targeting Programs,
WAB Case No. 90–02 (June 13, 1991), 1991 WL 494718 (WAB);
Building & Construction Trades Department v. Reich, 40 F.3d 1275
(D.C. Cir. 1994); Electrical Workers Local 357 v. Brock, 68 F.3d 1194
(9th Cir. 1995).
30 The judge stated that “The General Counsel sustained [the burden
of establishing jurisdiction] as to acts against Mulcahy when he was
employed by [L.K.] Comstock [& Co.].” It is clear from the context of
his discussion that the judge was referring to Kingston Constructors,
not L.K. Comstock. We correct the inadvertent error.
The judge also found that Local 48 had attempted to
collect from employees, including Mulcahy, MRP dues
that were owing from their employment on Davis-Bacon
jobs. However, he further found that the General Coun-
sel had failed (indeed, had not attempted) to show that
the contractors for whom those employees had worked
on Davis-Bacon projects or for whom they were working
when the Union attempted to collect MRP dues from
them met the Board’s standards for asserting jurisdiction.
The General Counsel has excepted to the latter finding
and to the judge’s consequent failure to find the collec-
tion of MRP dues on Davis-Bacon projects unlawful un-
der Detroit Mailers. We find merit in both exceptions.
As the judge observed, the only contractor named in
the complaint is Kingston Constructors. Although the
complaint alleges that the Union engaged in unlawful
conduct with regard to employees of other contractors, it
does not identify any of those firms or allege that any of
them met the Board’s jurisdictional standards.31 Nor did
the General Counsel introduce any evidence with regard
to purchases and/or sales of goods and services in inter-
state commerce by any employer other than Kingston.
Thus, although some contractors identified in the record
employed individuals on Davis-Bacon jobs, the judge
found no basis for asserting the Board’s jurisdiction over
any of them.
In his exceptions, the General Counsel points out that
the issue of jurisdiction was not raised at the hearing or
by the Union in its brief to the judge. The General
Counsel also argues that, although the issue of statutory
jurisdiction may be raised at any time in the proceedings,
the issue of discretionary jurisdiction must be raised in a
timely fashion,32 and was not timely raised here.
The General Counsel further contends that, in any
event, at least one of the “other” contractors, Tice Elec-
tric, met the Board’s discretionary jurisdictional stan-
dards. Because Tice was one of the contractors that had
assigned its bargaining rights to ONECA, the General
Counsel argues that it is proper for the Board to assert
jurisdiction over all employers that assigned their bar-
gaining rights to ONECA.33 Certain of those employers
31 The Board has jurisdiction whenever an alleged unfair labor prac-
tice is found to impose a more than de minimis effect on interstate
commerce. NLRB v. Fainblatt, 306 U.S. 601 (1939). The Board’s
standard for asserting jurisdiction over employers in the construction
industry is a minimum of $50,000 annual “inflow” or “outflow” of
goods and services across state lines. Siemons Mailing Service, 122
NLRB 81 (1959).
32 See, e.g., Anchortank, Inc., 233 NLRB 295 fn. 1 (1977).
33 See, e.g., Carpenters Local 102 (Millwright Employers Assn.), 317
NLRB 1099, 1101 (1995) (when the collective “inflows” or “outflows”
of the employers that have assigned their bargaining rights to a mul-
tiemployer association exceed $50,000, it is proper for the Board to
assert jurisdiction over any one of them, even without a showing that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1498
employed, on Davis-Bacon jobs, individuals whom Local
48 attempted to require to pay MRP dues as a condition
of employment. Therefore, the General Counsel con-
tends, the Davis-Bacon issue is properly before the
Board.34
We agree with the General Counsel. As the judge
noted, for the Board to assert jurisdiction, there must be a
showing that the subject matter of the case has more than
a de minimis effect on interstate commerce. Normally,
that showing is made by proving that the affected em-
ployer’s operations involve the interstate purchase and
sale of goods and services of at least a certain minimum
value.
But the Board has also asserted jurisdiction on the ba-
sis of other kinds of evidence. In particular, when em-
ployers’ operations were of sufficiently large size and
were supported by substantial amounts of Federal funds,
the Board has asserted jurisdiction even in the absence of
evidence concerning the interstate inflow and outflow of
goods and services. Thus, in Mon Valley United Health
Services,35 the employer had gross revenues of more than
$1.5 million, of which 45 percent, or some $700,000,
came from Federal funds. The Board found that, in view
of the combination of gross revenues and the significant
amounts that were derived from Federal funds, “the
transfer of such funds across state lines constitutes com-
merce more than sufficient to establish our legal jurisdic-
tion.”36 Similarly, in Community Services Planning
Council,37 the Board asserted jurisdiction on a showing
that the employer had gross income in excess of $1 mil-
lion, of which nearly 75 percent was contributed by the
Federal Government. In Bricklayers & Allied Craftsmen,
Local 2 (E. J. Harris Construction),38 which involved a
construction industry employer, the Board asserted juris-
diction on the basis of the employer’s contract for more
than $1 million, funded by the Federal Government.
An equivalent showing has been made here with re-
gard to Tice Electric. The record establishes that Tice

that specific employer satisfied the jurisdictional standard). As the
judge found, Kingston was not shown to have assigned its bargaining
rights to ONECA, and therefore jurisdiction cannot be asserted over the
other ONECA contractors by virtue of Kingston’s having satisfied the
jurisdictional tests.
34 The Union does not contest these arguments. It contends that
there is no showing that its conduct affected any Davis-Bacon job on
which Tice Electric worked. The General Counsel’s argument, how-
ever, is that Tice met the Board’s jurisdictional standards and that,
because Tice had assigned its bargaining rights to ONECA, the Board
should assert jurisdiction over all contractors who had assigned their
bargaining rights to ONECA.
35 227 NLRB 728 (1977).
36 Id.
37 243 NLRB 798, 799 (1979).
38 254 NLRB 1003 (1981).
had a contract for work on the Vista Ridge project that
was valued at nearly $1.5 million, of which some $1.3
million, or almost 90 percent, came from Federal high-
way funds. We find that evidence sufficient to assert
jurisdiction over Tice. And because Tice had assigned
its bargaining rights to ONECA, we find it appropriate to
assert jurisdiction over all employers who had assigned
their bargaining rights to ONECA.39
Among those employers were L. K. Comstock and
Blessing Electric. As we have stated, Mulcahy worked
for Blessing for a short time in June. The job on which
he was employed was a Davis-Bacon project. In Octo-
ber, while Mulcahy was working for Comstock on an-
other Davis-Bacon project, Local 48 warned him that it
would seek his discharge if he did not pay the MRP dues
owing from his employment with Blessing. This time,
Mulcahy promptly paid the dues. However, because
Mulcahy was working for Comstock, as to which we find
it appropriate to assert jurisdiction, the Union’s threat
had more than a de mimimis effect on commerce. And
because the MRP dues which the Union sought to collect
were owed for Mulcahy’s employment on a Davis-Bacon
project, we find that the issue of whether Local 48 could
lawfully require an employee to pay MRP dues on a
Davis-Bacon project, as a condition of employment, is
properly before us.
The General Counsel argues that, under the Detroit
Mailers test, MRP dues based on employment on a
Davis-Bacon project cannot be “periodic dues” because
their forced exaction on such projects is inimical to pub-
lic policy. The General Counsel relies on the decision of
the Labor Department’s Wage Appeals Board in In the
Matter of Building and Construction Trades Unions Job
Targeting Programs and on the courts of appeals’ deci-
sions in Building & Construction Trades Department v.
Reich and Electrical Worker Local 537 v. Brock,40 all of
which held that the collection of dues for job targeting
programs like Local 48’s MRP violates the Davis-Bacon
Act. The General Counsel therefore urges us to find that
Local 48 violated Section 8(b)(1)(A) and (2) by requiring
the payment of MRP dues as a condition of employment
on Davis-Bacon projects.
The Davis-Bacon Act provides, in pertinent part, that

The advertised specifications for every contract
in excess of $2,000 to which the United States or the
District of Columbia is a party, for construction, al-
teration, and/or repair, including painting and deco-
rating, of public buildings or public works of the
39 Carpenters Local 102 (Millwright Employers Assn.), 317 NLRB at
1101.
40 See fn. 29, above.
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1499
United States or the District of Columbia within the
geographical limits of the States of the Union or the
District of Columbia, and which requires or involves
the employment of mechanics and/or laborers shall
contain a provision stating the minimum wages to be
paid various classes of laborers and mechanics
which shall be based upon the wages that will be de-
termined by the Secretary of Labor to be prevailing
for the corresponding classes of laborers and me-
chanics employed on projects of a character similar
to the contract work in the city, town, village, or
other civil subdivision of the State in which the work
is to be performed, or in the District of Columbia if
the work is to be performed there; and every contract
based upon these specifications shall contain a stipu-
lation that the contractor or his subcontractor shall
pay all mechanics and laborers employed directly
upon the site of the work, unconditionally and not
less often than once a week, and without subsequent
deduction or rebate on any account, the full amounts
accrued at time of payment, computed at wage rates
not less than those stated in the advertised specifica-
tions, regardless of any contractual relationship
which may be alleged to exist between the contractor
or subcontractor and such laborers and mechan-
ics[.]41 [Emphasis added.]

The implementing regulations, 29 C.F.R. § 3.1 et seq., allow
for certain kinds of deductions, including

[a]ny deductions to pay regular union initiation fees
and membership dues, not including fines or special
assessments: Provided, however, that a collective bar-
gaining agreement between the contractor or subcon-
tractor and representatives of its employees provides
for such deductions and the deductions are not other-
wise prohibited by law.42 [Emphasis added.]

Two questions arise concerning the legality of MRP
dues under Davis-Bacon. The first is whether dues de-
ducted for job targeting programs, which ultimately are
paid to contractors (although not necessarily the contrac-
tor employing the employee from whom those dues are
collected) are prohibited deductions or whether they fall
within the exception for “membership dues, not includ-
ing . . . special assessments.” The second is whether
MRP dues, which in this case were not deducted pursu-
ant to contractual checkoff provisions but instead were to
be paid directly to the Union, should be considered “de-
duction[s] or rebate[s]” within the meaning of Davis-
Bacon.

41 40 U.S.C. § 276a(a).
42 29 C.F.R. § 3.5(i).
In Building and Construction Trades Unions Job Tar-
geting Programs, the Wage Appeals Board (WAB) con-
sidered a job targeting program under which dues were
deducted from employees’ pay and remitted to the un-
ions. Thus, the WAB and the D.C. Circuit in Reich,
which approved the WAB’s decision, were faced with
only the first of the two questions stated above.
The WAB plurality upheld the determination of the
Administrator of the Labor Department’s Wage and
Hour Division that job targeting programs violate the
Davis-Bacon Act. The WAB, like the Administrator,
rejected the unions’ contention that job targeting dues
were “periodic dues” under Detroit Mailers and thus
constituted “membership dues” that could lawfully be
deducted under 29 C.F.R. § 3.5(i). The WAB stated that
it could not

conclude . . . that funds used for the purpose of work
acquisition pursuant to a program that would be elimi-
nated if ultimately successful, are “union dues” as that
term is ordinarily understood. Like the Administrator,
the [WAB] determines that Section 8(a)(3) [of the Act]
and relevant case law do not suggest or compel a con-
trary result.43

The WAB also based its decision on the substantive
policies of the Davis-Bacon Act and its attendant regula-
tions, which it characterized as “designed to protect the
employees’ right to prevailing wages, as well as to limit
project costs paid by the public.” The WAB found that
job targeting programs violated both of those princi-
ples.44 It noted that Davis-Bacon requires the payment of
prevailing wages “without subsequent deduction or re-
bate on any account.”45 It further reasoned that

If funds were deducted for Davis-Bacon projects for
use as subsidies on private sector projects, the prevail-
ing wage surveys would be distorted to the extent the
subsidy was distributed to any contractor on a private
sector project. . . . Over time, the government would
pay more on Davis-Bacon and Related Act projects
than the actual area wage rate, a result clearly outside
43 1991 WL 494718 at *6.
44 Id. at *5.
45 The WAB also relied on the policies of the Copeland Act, 18
U.S.C. § 874, a criminal statute that prohibits the forced return of
wages to employers on Federally funded projects, and on which the
Labor Department’s regulations are based in part. Although the Ad-
ministrator held that the job targeting program in question did not vio-
late the Copeland Act, 1991 WL 494718 at *3, the WAB cited the
provisions of the Copeland Act as complementary to the Davis-Bacon
Act. Id. at *6.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1500
the public interest and definitely not contemplated by
the Congress which enacted Davis-Bacon.46

The WAB’s decision was upheld by the Federal dis-
trict court,47 and the court’s decision was affirmed by the
D.C. Circuit in Reich. The court of appeals found rea-
sonable both the WAB’s determination that the deduc-
tion of job targeting payments was inconsistent with the
literal language of Davis-Bacon and its finding that job
targeting programs have the effect of artificially increas-
ing the local prevailing wage rate.48 The court also found
that the WAB’s interpretation of its regulations, as ex-
cluding job targeting payments from the category of de-
ductible “membership dues,” was consistent with the
Davis-Bacon principle that wages should not revert to
contractors.49
Like the WAB, the D.C. Circuit held that Detroit
Mailers did not compel a conclusion that job targeting
payments should be considered “membership dues.” The
court noted that the Supreme Court in Beck held that em-
ployees who are not union members may be compelled
to pay only the portions of dues that are spent for collec-
tive bargaining, grievance adjustment, and contract ad-
ministration50 The court thus found that, “even if the
NLRA were relevant to the meaning of membership dues
in Labor’s regulations, recent NLRA case law does not
support the unions’ argument because JTP deductions
would not qualify as periodic dues under that Act.”51
In 1995, the Labor Department addressed the second
question posed above—whether job targeting payments
made directly to the union, instead of being deducted
from employees’ pay and remitted to the union by the
employer, would violate Davis-Bacon. The Administra-
tor of the Wage and Hour Division, Maria Echaveste,
advised the Building and Construction Trades Depart-
ment of the AFL–CIO that the Labor Department ad-
hered to the view “that job targeting payments violate the
Davis-Bacon Act prohibition against subsequent deduc-
tion or rebate . . . as well as the Department’s regula-
tions[.]” She went on to say, however, that

we are also of the view that the Department’s scarce re-
sources to enforce the Act should not be utilized where
the relationship between the Davis-Bacon deductions
and the job targeting project is remote and investigation
would be highly resource-intensive. Therefore, the
Department will not take exception to the funding of

46 Id.
47 815 F.Supp. 484 (D.D.C. 1993).
48 40 F.3d at 1280.
49 Id. at 1281.
50 487 U.S. at 745.
51 40 F.3d at 1282.
job targeting projects by dues payments in the follow-
ing situations:
. . . .
2. Where there are no payroll deductions for dues
and employees pay their union dues directly to the
union, the union may use the dues to fund a job-
targeting program[.]

Thus, although Echaveste stated that the Labor Department
would not take action when employees made job targeting
program payments directly to the union, she indicated that
the Department still took the position that such a program
would violate Davis-Bacon.
Later in 1995, the Ninth Circuit in Brock took that po-
sition unequivocally. In a case in which the union at-
tempted to collect unpaid job targeting dues from em-
ployees by means of fines and lawsuits, the court of ap-
peals held that even though the dues were not deducted
from the employees’ paychecks, but were paid by the
employees directly to the union, the program still vio-
lated the Davis-Bacon Act.52 Like the D.C. Circuit, the
Ninth Circuit found that the job targeting program was
antithetical to the purposes of Davis-Bacon, which were
to limit the occasions on which part of employees’ wages
could be returned to contractors and to prohibit the use of
deductions from employees’ pay to benefit employers.53
The court also found that, as with deductions, job target-
ing payments made directly to unions would tend to dis-
tort local prevailing wages.54 Finally, the Ninth Circuit
agreed with the D.C. Circuit and the Labor Department
that dues to support a job targeting program were not
“membership dues” for purposes of the Department’s
regulations, and that interpretations of “periodic dues”
under the NLRA were not relevant to that determina-
tion.55
We agree with the General Counsel that, in light of the
decisions of the Labor Department and the courts of ap-
peals, requiring the payment of MRP dues as a condition
of employment on Davis-Bacon projects is inimical to
public policy under Detroit Mailers. The Labor Depart-
ment and the courts, not the Board, have the responsibil-
ity to enforce the Davis-Bacon Act. They have con-
cluded that the collection of dues for job targeting pro-
grams on Davis-Bacon projects violates the Davis-Bacon
Act. Moreover, the Labor Department has indicated, and
the Ninth Circuit has expressly held, that even the direct
payment of dues for such programs, as opposed to deduc-
tions pursuant to checkoff, is unlawful under Davis-
52 68 F.3d at 1200.
53 Id.
54 Id. at 1201.
55 Id. at 1203.
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1501
Bacon.56 As a matter of comity we shall defer to those
rulings.57
The Union and amici contend, however, that those de-
cisions conflict with, and therefore are preempted by, the
NLRA. We find no merit in that contention. The Su-
preme Court in Southern Steamship Co.58 expressly
stated that

the Board has not been commissioned to effectuate the
policies of the Labor Relations Act so single-mindedly
that it may wholly ignore other and equally important
Congressional objectives. Frequently the entire scope
of Congressional purpose calls for careful accommoda-
tion of one statutory scheme to another, and it is not too
much to demand of an administrative body that it un-
dertake this accommodation without excessive empha-
sis upon its immediate task.

The Court reversed the Board and held that a strike on board
ship, which violated the Federal criminal statute outlawing
mutinies, therefore was unprotected even though it would
have been lawful and protected had it taken place almost
anywhere else. Clearly, then, we cannot simply hold, as the
Union and amici apparently would have us do, that because
the collection of MRP dues on Davis-Bacon jobs would
otherwise be lawful under the NLRA, any ruling by other
agencies or courts that the same conduct violates Davis-
Bacon must be preempted as inconsistent with the Act.59
Were we to do so, we would be announcing, in effect, that
the NLRA trumps all other Federal statutes. And that is just
what the Supreme Court in Southern Steamship said the
Board cannot do.

56 That the Labor Department has decided not to “take exception” to
job targeting programs in which employees make payments directly to
the unions rather than through payroll deductions does not alter our
conclusion. The Department evidently took this position because of the
administrative difficulty of policing such programs, not because it
deemed them to be lawful under Davis-Bacon.
57 The Board has deferred to other agencies’ and courts’ authoritative
construction of statutes which they have the responsibility for enforc-
ing. See, e.g., Roseburg Forest Products, 331 NLRB No. 124 (2000)
(deferring to U.S. Equal Employment Opportunity Commission’s inter-
pretation of confidentiality requirements under the Americans with
Disabilities Act); PCC Structurals, Inc., 330 NLRB No. 131 (2000)
(deferring to EEOC’s and courts’ interpretation of harassment as creat-
ing a hostile work environment under the ADA); and OXY USA, Inc.,
329 NLRB No. 26 (1999) (deferring to the Justice Department’s opin-
ion regarding the provisions of Sec. 302 of the Act).
58 Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942).
59 This argument, if accepted, would render meaningless the re-
quirement under Detroit Mailers that “periodic dues” for 8(a)(3) and
8(b)(2) purposes must not be collected for purposes that are “inimical
to public policy.” Under this view, arguably any public policy that
might be offended by the collection of dues under a union-security
agreement would be preempted.
This case differs from Southern Steamship in one re-
spect: there, the criminal statute unambiguously prohib-
ited the employees’ conduct, whereas here, the Davis-
Bacon Act and its regulations do not explicitly address
the subject of dues to support job targeting programs.
But that is a distinction without a difference, because
both the Labor Department and the courts have defini-
tively construed those provisions as prohibiting the col-
lection of such dues on Davis-Bacon projects. The
Board has no expertise and no authority on which to base
a contrary finding. We therefore are no freer to disregard
those rulings than we would be to disregard the language
of Davis-Bacon itself, had that language contained the
same express prohibition.60
As we have stated, then, we shall defer to the rulings
of the Labor Department and the courts of appeals.
However, we wish to make clear our basis for deference.
The Labor Department and the courts relied largely on
their findings that job targeting programs are incompati-
ble with the substantive purposes of the Davis-Bacon
Act. They emphasized that, in their view, such programs
offend Davis-Bacon both by returning a portion of em-
ployees’ wages to contractors and by tending to inflate
computations of prevailing wages. The Board has no
institutional expertise or authority with respect to the
interpretation of Davis-Bacon, and we therefore have no
reason to take issue with those findings or the conclu-
sions flowing from them. We emphasize, however, that
in deferring to their conclusion that deductions of the
type at issue here violate the Davis-Bacon Act, we are
not relying on any construction of “periodic dues” under
Section 8(a)(3) that is inconsistent with ours.
60 The Union and amici cite Chamber of Commerce v. Reich, 74 F.3d
1322 (D.C. Cir. 1996), in which the court of appeals held that the
President’s executive order authorizing the Secretary of Labor to dis-
qualify employers that hire permanent replacements for strikers from
Federal contracts was preempted under San Diego Building Trades
Council v. Garmon, 359 U.S. 236 (1959), and Machinists Lodge 76 v.
Wisconsin Employment Relations Commission, 427 U.S. 132 (1976).
We find Chamber of Commerce to be distinguishable from this case.
As the court there found, the executive order was inconsistent with the
established NLRA principle that an employer may lawfully hire perma-
nent replacements for economic strikers, NLRB v. Mackay Radio &
Telegraph Co., 304 U.S. 333 (1938), and was based on a statute that did
not directly address that issue (or, indeed, labor relations generally). In
the Davis-Bacon Act, by contrast, Congress has specifically legislated
on the subject of returning portions of employees’ wages to contractors.
The NLRA is silent on that subject, and until now the Board has not
addressed the issue of whether unions may require employees to pay
dues that will ultimately be returned to contractors on Davis-Bacon
projects. (As we have noted, the Board has found job targeting pro-
grams to be protected by the Act. That is not the question here, how-
ever. The issue before us is whether unions may lawfully collect dues
on Davis-Bacon jobs to support such programs.) Accordingly, the
rulings of the Labor Department and the courts are not inconsistent
with the NLRA, either as written or as construed by the Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1502
For the reasons discussed above, we hold that under
the Board’s decision in Detroit Mailers, payments to
support job targeting programs are not “periodic dues”
for purposes of Section 8(a)(3) and 8(b)(2) if those pay-
ments are based on employment on Davis-Bacon pro-
jects, because their forced exaction is “inimical to public
policy.” We therefore find that the Union violated Sec-
tion 8(b)(1)(A) by threatening to have employees dis-
charged if they did not pay MRP dues owing from their
employment on Davis-Bacon projects. The General
Counsel has established that the Union violated Section
8(b)(1)(A) with regard to Mulcahy, when it threatened
him with termination if he did not pay his MRP dues
owing from his employment on a Davis-Bacon job with
Blessing Electric. The complaint alleges that the Union
also violated Section 8(b)(1)(A) by issuing similar
threats to other, unnamed, employees. The record does
not identify any other employees who were similarly
threatened with discharge for failing to pay MRP dues
owing from Davis-Bacon employment. The record does
reflect, however, that a number of employees were
threatened during the period covered by the complaint,
and the Union stipulated that its practice (until February
1997) was to issue such threats when less confrontational
collection methods failed, regardless of whether the dues
were owed for employment on Davis-Bacon jobs. In
view of these facts, we find that the General Counsel has
alleged and proved an 8(b)(1)(A) violation with regard to
a class of employees typified by Mulcahy, and we shall
issue a class-wide remedy. The members of the class
may be identified in compliance proceedings.
On the other hand, the record does not establish that
the Union violated Section 8(b)(2) by causing or attempt-
ing to cause employers to discharge employees for fail-
ing to pay MRP dues owing from their employment on
Davis-Bacon projects. Again, the Union stipulated that
until February 1997, its practice (when all else failed)
was to attempt to have employees discharged for failing
to pay MRP dues, regardless of whether those dues were
owed for employment on Davis-Bacon projects. As we
have found, however, the only time the Union attempted
to collect MRP dues from Mulcahy arising from a Davis-
Bacon project was when it threatened him in October
1995 for failing to pay MRP dues owing from his earlier
employment with Blessing Electric. But there is no alle-
gation, and no evidence, that the Union sought his dis-
charge at that time. Thus, the Union did not violate Sec-
tion 8(b)(2) with regard to Mulcahy. The complaint does
not allege an 8(b)(2) violation with regard to any other
employee; it alleges only that the Union violated Section
8(b)(1)(A) by threatening employees with termination for
failing to pay MRP dues. And although there are several
employees whom the Union attempted to have termi-
nated for failing to pay MRP dues, there is no record
evidence that any of those employees owed MRP dues
from periods of employment on Davis-Bacon jobs.61
Because the General Counsel has failed to show that the
Union violated Section 8(b)(2) with regard to Mulcahy,
and failed either to allege or to prove an 8(b)(2) violation
with regard to any other employee, we do not find that
the Union violated Section 8(b)(2) within the period en-
compassed by the complaint.
AMENDED CONCLUSIONS OF LAW
1. Kingston Constructors, Inc., Blessing Electric, Inc.,
Tice Electric Co., and L.K. Comstock & Co. are employ-
ers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union violated Section 8(b)(1)(A) of the Act by
threatening to have Mulcahy and other employees dis-
charged pursuant to the union-security provision of the
collective-bargaining agreement if they did not pay MRP
dues owing from their employment on Davis-Bacon pro-
jects.
4. The Union did not otherwise violate the Act as al-
leged.
REMEDY
Having found that the Union has engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, we shall
order the Union to reimburse Mulcahy and any other
employees who paid MRP dues owing from their em-
ployment on Davis-Bacon jobs as a result of the Union’s
threats to have them terminated pursuant to the collec-
tive-bargaining agreement if they did not comply with its
demands. Reimbursement shall be with interest com-
puted in the manner prescribed in New Horizons for the
Retarded.62
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Electrical
Workers, Local 48, AFL–CIO, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Threatening employees with termination if they fail
to make payments to support the Market Recovery Pro-

61 Although some of the employers who were sent “stop work” let-
ters were involved in Davis-Bacon projects, the record does not show
that any of the employees whom the Union attempted to have dis-
charged, other than Mulcahy, ever worked on Davis-Bacon jobs.
62 283 NLRB 1173 (1987).
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1503
gram (MRP) arising from their employment on projects
subject to the Davis-Bacon Act, 40 U.S.C. § 276a et seq.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reimburse Patrick Mulcahy and any other employ-
ees who, during the period covered by the complaint,
paid MRP dues arising from their employment on Davis-
Bacon jobs as a result of the Respondent’s threats to have
them terminated pursuant to the collective-bargaining
agreement if they did not comply with its demands.
(b) Within 14 days after service by the Region, post at
its offices and meeting halls copies of the attached notice
marked “Appendix.”63 Copies of the notice, on forms pro-
vided by the Regional Director for Region 19, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees and members are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO 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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.

63 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

WE WILL NOT threaten employees with termination if
they fail to make payments to support the Market Recov-
ery Program (MRP) arising from their employment on
projects subject to the Davis-Bacon Act, 40 U.S.C. §
276a et seq.
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 reimburse Patrick Mulcahy and any other
employees who, during the period covered by the com-
plaint, paid MRP dues arising from their employment on
Davis-Bacon jobs as a result of our threats to have them
terminated pursuant to the collective-bargaining agree-
ment if they did not comply with our demands.

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 48, AFL–CIO

Linda J. Scheldrup, Esq., for the General Counsel.
James W. Kasameyer, Esq. (Carner, Buckley, Kasameyer &
Hays), of Portland, Oregon, for the Respondent.
Patrick Mulcahy, pro se, of Gresham, Oregon, for the Charging
Party.
DECISION
Introduction to the Case and the Issues It Raises
TIMOTHY D. NELSON, Administrative Law Judge. This is
a prosecution brought in the name of the General Counsel of
the National Labor Relations Board against International
Brotherhood of Electrical Workers, Local 48, AFL–CIO (the
Respondent) alleging that the Respondent violated Section
8(b)(1)(A) and (2) of the National Labor Relations Act. I heard
the case in trial in Portland, Oregon, on October 21 and 22,
1997, following which counsel for the General Counsel and
counsel for the Respondent submitted timely briefs, which I
have studied.
The relevant facts are essentially undisputed. The General
Counsel attacks the Respondent’s admitted practice in the pe-
riod beginning in “June 1995” (when the first violation under
the practice within the 10(b) limitations period is alleged to
have occurred) to February 12, 1997 (when the Respondent
asserts that it abandoned the practice), of invoking or threaten-
ing to invoke discharge rights under a union-security agreement
to extract “dues” amounts from member-employees covered by
that agreement that were earmarked for a fund administered by
the Respondent under its “Electrical Industry Assistance (or
Recovery) Program,” now usually called the “Market Recovery
Program,” or the “MRP.”
At all times since the uncertain point in 1986 when the Re-
spondent inaugurated the MRP, one of the program’s principal
aims and functions has been to dispense “wage-supplements”
(or “subsidies”) on “targeted” jobs to electrical contractors who
are signatories to a certain construction labor agreement with
the Respondent known commonly as the “Inside Agreement.”
The Respondent’s MRP is not significantly different in purpose
or function from other job-targeting programs that are by now
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1504
so familiar in the building and construction trades that they are
usually called, simply, “JTPs.” Like the MRP, JTPs in general
use such subsidies to enable unionized contractor-beneficiaries
to confer on their employees the hourly wages and benefits
called for in their labor agreements and at the same time be able
to submit bids for a given project that will be competitive with
bids submitted by nonunion contractors paying lower rates.
The Board has recently adopted the view that the “objec-
tives” of such JTPs “are to protect employees’ jobs and wage
scales,” and that “these objectives are protected by Section 7”
of the NLRA, as are the activities of employees who seek to
promote JTPs. Manno Electric, 321 NLRB 278, 298 (1996).
The Respondent’s particular JTP—the MRP—has withstood
recent attack as a violation of Federal antitrust laws under the
Sherman and Clayton Acts. Phoenix Electric Co. (National
Electrical Contractors Assn., et al.), 81 F.3d 858 (9th Cir.
1995). In that case, the Ninth Circuit held pertinently (id. at
863):

Here . . . the parties to this agreement [i.e., the Inside
Agreement and the associated MRP that emerged from
collective-bargaining between ONECA (infra) and IBEW
Local 48] undoubtedly wanted the union subcontractors to
increase their work at the expense of nonunion subcontrac-
tors. That of course is a legitimate goal of the union and its
workers. Connell [Construction Co., Inc. v. Plumbers &
Steamfitters Local 100,] 421 U.S. [616] at 625 [(1975)].
There is no indication, however, that this agreement is, or
ever was intended to be, a bar to competition by nonunion
subcontractors, as was the situation in Connell. A subsidy
program that targets some jobs for more competitive wage
components of signatory union subcontractor bids, and
does not bar nonunion bidders from bidding on the same
jobs, is in harmony with the policies of both the labor and
antitrust laws.[1]
. . . .

Although the facts are essentially undisputed, this case raises
especially difficult legal questions on at least two levels—at the
threshold, as to the Board’s jurisdiction to hear and decide
some of the counts in the complaint; next, as to the legal merits
of the counts over which the Board clearly does have jurisdic-
tion. For reasons elaborated in due course, I will judge that the
only alleged unfair labor practices over which the Board has
been shown to have both “statutory” and “discretionary” juris-
diction are those associated with Charging Party Mulcahy’s
treatment at the Respondent’s hands while employed by King-
ston Constructors, Inc. (Kingston) in June-July 1995. This
judgment will not significantly foreshorten my legal analysis,
however, for Mulcahy’s treatment in that period squarely pre-
sents what I regard as the pivotal question in the case—Are

1 But see Electrical Workers Local 357 v. Brock, 68 F.3d 1194 (9th
Cir. 1995), further discussed, infra. (JTP “dues” accrued when “trav-
eler”-members of sister local worked on Davis-Bacon projects within
Local 357’s territorial jurisdiction were prohibited “deduction or re-
bate”—not “membership dues”—within the meaning of Davis-Bacon
Act and certain implementing regulations of Department of Labor
described, below.) The Ninth Circuit in Phoenix Electric distinguished
Brock on its facts. 831 F.3d at 859 fn. 1.
MRP dues “periodic dues . . . uniformly required” within the
meaning of the NLRA?
The difficulties in deciding the legal merits of this question
are manifold: They are traceable in large part to a notorious
conflict between the Board’s holdings in Teamsters Local 9592
and Detroit Mailers3 on a basic question of interpretation under
the NLRA: If a union requires its members to make payments
on a “periodic” basis (whether the payments are labeled “dues,”
“assessments,” or something else) that are levied for a “special
purpose”—specifically, for a purpose other than maintaining
the union “in its capacity as a collective-bargaining agent”—is
it lawful for the union to seek to collect the special-purpose
payments from delinquent members by causing or threatening
to cause their employer to fire them pursuant to the terms of a
union-security clause in their labor agreement? (In Teamsters
Local 959, the Board said that the answer to this question is,
simply, “No.” However, in its later Detroit Mailers decision,
the Board, without explicitly reversing Teamsters Local 959,
clearly held that the answer to the same question is “Yes,” pro-
vided that the purpose for the periodic and uniformly-required
payments is not “otherwise inimical to public policy.”)
Adding to the difficulty is that the Board has never addressed
this question in a case where, as here, the special-purpose
“dues” at issue are collected for the particular purpose of fund-
ing a union’s job-targeting program. And further confounding
analysis are a series of yet-unresolved issues relating to how, if
at all, the Supreme Court’s decision in Beck4 might bear on this
question, including, not least, the issue of the ongoing vitality
of the Detroit Mailers holding. (In Big V Supermarkets,5 the
Board recognized, but declined to decide, the “difficult ques-
tion,” in the aftermath of Beck, whether union-required “pay-
ments” for a union’s “Organizing Defen[s]e Fund” “constituted
periodic dues or an assessment.” The Board noted somewhat
enigmatically in this regard, however, that, “[o]n the one hand,”
the Beck decision “implicitly disapproved Detroit Mailers,” but
“[o]n the other hand, Beck concerned employees who were not
union members, while here the employees are members.”)6
Considering the array of unresolved legal issues that are only
hinted at in this introduction (all of which, moreover, implicate
questions of fundamental policy under the NLRA), it doubtless
would have been better for this case to have been addressed in
the first instance by the Board itself. However, the parties de-
clined my suggestions that they waive decision by the adminis-
trative law judge and stipulate to transfer the undisputed factual
record directly to the Board for a clearly more authoritative—
and ultimately more expeditious—determination of the legal
and policy merits.
The peculiar nature and range of these issues is further sug-
gested in the following summaries of the procedural history of
2 Teamsters Local 959 (RCA Service Co.), 167 NLRB 1042 (1960).
3 Detroit Mailers Union No. 40 (Detroit Publishers Assn.), 192
NLRB 951 (1971).
4 Communications Workers v. Beck, 487 U.S. 735 (1988).
5 Food & Commercial Workers Local One (Big V Supermarkets),
304 NLRB 952 (1991).
6 Id. at fn. 2. In noting that the Beck decision “implicitly disapproved
Detroit Mailers,” the Board referred specifically to the Supreme
Court’s discussion appearing in 487 U.S. at 752–753, and fn. 7.
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1505
the case, the nature of the complaint’s central counts, and the
main theories of prosecution that inspired those counts:
On January 12, 1996, Patrick Mulcahy, a journeyman elec-
trician and a member of the Respondent, filed a charge with the
Portland subregional office of Region 19 of the Board. The
charge averred that “on or about July 19, 1995,” the Respon-
dent violated Section 8(b)(1)(A) and (2) by “threaten[ing] to
cause and caus[ing] Kingston Electric to discharge . . . Mulcahy
. . . for reasons other than [his] failure to pay periodic dues and
initiation fees as allowed under the National Labor Relations
Act.” (Mulcahy’s charge was based on the never-disputed fact
that the Respondent had caused Kingston to fire him briefly,
and had done so because he had not paid arrearages in dues
amounts earmarked for the Respondent’s MRP fund.) Thirteen
months then passed before a formal complaint issued. In the
meantime, the charge was reviewed by the General Counsel’s
Division of Advice in Washington, D.C., and then referred back
to the Acting Regional Director for Region 19 (the Acting Re-
gional Director) with instructions to issue a complaint.7 The
Acting Regional Director did this on February 13, 1997, 3 days
after receiving an amended charge from Mulcahy which trans-
formed the original charge concerning a single transaction in
July 1995 affecting only Mulcahy into something resembling a
“class” action, i.e, a claim that the Respondent had done the
same things it did to Mulcahy in June-July 1995 to an indefinite
class of employees working for an indefinite class of employers
during an indefinite period of time.8
The complaint effectively embraces the amended charge. In
its central counts, set forth in paragraphs 5(a) through (f), it
makes what amount to four distinct sets of claims:

(1) The Respondent violated Section 8(b)(1)(A), when,
“during June 1995,” it “threatened” Mulcahy that it would
cause “the Employer” (separately identified in the com-
plaint as “Kingston Constructors, Inc.”) to discharge him
“for reasons other than [his] failure to tender uniformly re-
quired initiation fees and periodic dues” (i.e., for his fail-
ure to pay MRP dues-arrearages demanded by the Re-
spondent).
(2) The Respondent violated Section 8(b)(2), and de-
rivatively, Section 8(b)(1)(A), when, between July 17 and
July 19, 1995, it made good on this threat by “attempting
to cause and caus[ing]” Kingston to discharge Mulcahy,
for the same reason.
(3) The Respondent separately violated Section
8(b)(1)(A) when, on October 30, 1995, it again “threat-
ened” Mulcahy with discharge from his then-current job
with another (unnamed) “employer[,]” for the same rea-
son.

7 I was administratively so advised in off-record colloquy with coun-
sel for the General Counsel and counsel for the Respondent.
8 Mulcahy’s amended charge, filed February 10, 1997, reiterated the
narrow claim in his original charge concerning the Kingston incident on
July 19, 1995, but further averred that, “thereafter,” the Respondent
“threatened to cause the termination of Mulcahy and others similarly
situated . . . for reasons other than [their] failure to pay periodic dues
and initiation fees[.]”
(4) The Respondent again repeatedly violated Section
8(b)(1)(A) when, “[a]t various times since July 12, 1995
which are currently unknown to the General Counsel,” the
Respondent also “threatened to cause the termination of
other employees from their employment, whose names are
currently unknown to the General Counsel[,]” again for
the same reason—their failure to pay MRP dues-
arrearages—which the complaint characterizes as a “rea-
son other than their failure to tender uniformly required
initiation fees and periodic dues.”

The language of the complaint clearly expresses a theory of
prosecution which supposes at bottom that MRP dues do not
qualify as “periodic dues . . . uniformly required” as those
terms are used in certain interrelated provisions within Sections
8(a)(3) and 8(b)(2) of the Act.9 However, the General Coun-
sel’s litigation position is unusually delicate and subtle—and in
some respects quite shifting and equivocal—as to exactly why
MRP dues should be found not to qualify as “periodic dues . . .
uniformly required.” Any discussion of the nuances of the Gen-
eral Counsel’s position must await a more detailed narration of
the pertinent facts; however, two main features deserve mention
at the outset:
First, noting (accurately) that “Board law” is “muddled”
when it comes to determining whether special-purpose pay-
ments collected from union members on a periodic basis can
qualify under the NLRA as “periodic dues,” the General Coun-
sel takes the “position” that the Board “should abandon” the
Teamsters Local 959 tests and “should adopt” instead the
analysis applied in Detroit Mailers “as the sole test for deter-
mining whether a payment is dues or an assessment.”10 (Ex-
actly why the Board “should” prefer Detroit Mailers to Team-
sters Local 959 is a question left unanswered in the prosecution
brief. Likewise conspicuously absent is any discussion by the
General Counsel of the possible impact of Beck on the question
of what the Board “should” do, even though, as previously
noted, Beck “implicitly disapproved” the Detroit Mailers hold-
ing.)
9 In pertinent part, Sec. 8(a)(3) makes it unlawful for an employer to
“discriminat[e] in regard to hire or tenure of employment or any term or
condition of employment to encourage . . . membership in any labor
organization: Provided, That . . . nothing in this Act shall preclude an
employer from making an agreement with a labor organization . . . to
require as a condition of employment membership therein on or after
the 30th day following the beginning of such employment or the effec-
tive date of such agreement, whichever is later . . . . Provided further,
that no employer shall justify any discrimination against an employee
for nonmembership . . . if . . . (B) . . . he has reasonable grounds for
believing that membership was denied or terminated for reasons other
than the failure of the employee to tender the periodic dues and initia-
tion fees uniformly required as a condition of acquiring or retaining
membership.”
Sec. 8(b)(2) makes it unlawful for a labor organization to “cause or
attempt to cause an employer to discriminate against an employee in
violation of subsection [8](a)(3) or to discriminate against an employee
with respect to whom membership in such organization has been denied
or terminated on some ground other than his failure to tender the peri-
odic dues and initiation fees uniformly required as a condition of ac-
quiring or retaining membership.”
10 G.C. Br., pp. 18, 22, 23 (emphasis added).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1506
Second, in contending that MRP dues do not satisfy even the
more liberal tests declared in Detroit Mailers, counsel for the
General Counsel devotes the largest part of her brief to what
she calls the General Counsel’s “primary” theory—that the
purpose of MRP dues is “inimical to public policy.” The Gen-
eral Counsel is here referring to that “policy” which may be
teased from a plurality decision under the Davis-Bacon Act11
rendered in 1991 by the Wage Appeals Board (WAB) of the
United States Department of Labor,12 a decision which passed
review in a United States District Court,13 and which was ulti-
mately affirmed by the United States Court of Appeals for the
District of Columbia Circuit in the Reich case,14 where the D.C.
Circuit applied a standard of deference accorded to an agency’s
interpretation of its own administrative regulations when that
interpretation cannot be said to be “plainly erroneous.” 15
The 1991 decision of the WAB—its precise holding and lim-
its, the extent to which it may have been itself influenced by
decisions arising under the NLRA, its bearing on questions of
interpretation under the NLRA, and especially, its potential for
balkanizing the application of the NLRA— might deserve ex-
tended discussion in a different case than the one presented
here. For present purposes, however, I simply note as follows:
The statements variously made by each of the three WAB
members whose opinions comprise the plurality decision af-
firmed in Reich invite a variety of interpretations, including
even the interpretation that job-targeting “programs” are them-
selves unlawful under the Davis-Bacon Act. However, I sug-
gest that the strict holding of the decision, as understood and
affirmed in Reich, was that employers on jobs covered by the
Davis-Bacon Act, while generally permitted under DOL’s ad-
ministrative regulations to deduct “regular union . . . member-
ship dues, not including fines or special assessments” from
employees’ paychecks will nevertheless violate Davis-Bacon
proscriptions by deducting any such purported “membership
dues” amounts that are used by the union to fund subsidies to

11 40 U.S.C. A. § 276a, et seq., Sec. 276a provides in pertinent part
as follows (my emphasis):
The advertised specifications for every contract . . . to which the
United States . . . is a party, for the construction, alteration and/or re-
pair . . . of . . . public works . . . shall contain a provision stating the
minimum wage to be paid various classes of laborers and mechanics,
which shall be based upon the wages that will be determined by the
Secretary of Labor to be prevailing . . . in the city . . . or other civil
subdivision of the State in which the work is to be performed . . . and
every contract based upon these specifications shall contain a stipula-
tion that the contractor . . . shall pay all mechanics and laborers . . . un-
conditionally. . . and without subsequent deduction or rebate on any
account, the full amounts accrued at time of payment, computed at
wages rates not less than those stated in the advertised specifications[.]
12 In the Matter of Building and Construction Trades Unions Job
Targeting Programs, WAB Case No. 90-02 (June 13, 1991), 1991 WL
494718 (WAB).
13 815 F.Supp. 484 (D.D.C. 1993).
14 Building & Construction Trades Department v. Reich, 40 F.3d
1275 (D.C. Cir. 1994) (Chief Judge Edwards dissenting).
15 In affirming the WAB in Reich, supra, the D.C. Circuit held ulti-
mately that WAB’s “decision that deductions that benefit employers are
not permissible under Section 3.5(1) [of DOL’s administrative regula-
tions] as membership dues is not a plainly erroneous interpretation of
its own regulations.” 40 F.3d at 1281; emphasis added.
Davis-Bacon employers made pursuant to the union’s job-
targeting program.16 Moreover, the degree to which the De-
partment of Labor currently hews even to that understanding of
the WAB’s holding is cast into doubt by an opinion letter is-
sued on June 20, 1995 by Maria Echaveste, the administrator of
the Employment Standards Administration of the Wage and
Hour Division of the DOL, to Robert Georgine, the president of
the Building and Construction Trades Department of the AFL–
CIO—a letter in which Administrator Echaveste identifies two,
distinct safe harbors from investigation and prosecution under
the Davis-Bacon Act for unions seeking to maintain job-
targeting programs funded by the dues of employees working
on Davis-Bacon jobs.17
16 See text quoted in last footnote. Moreover, my characterization of
the WAB’s strict holding is further supported by the D.C. Circuit’s
earlier discussions of the background to and the nature of the WAB
decision. Thus, as characterized by the Circuit, the issue as originally
presented to the Administrator of the Department of Labor’s Wage-
Hour Division (whose decision was reviewed in turn by the WAB) was
“the legality of deductions taken from the wages of workers to fund
JTPs.” The Circuit found that the Administrator “determined” as to this
issue that “JTP deductions violate prevailing wage rate requirements of
the Davis-Bacon Act and are not permissible under either section 3.5 or
section 3.6 [administrative regulations promulgated by DOL which
permit employer ‘deductions’ of, inter alia, ‘regular union initiation
fees and membership dues, not including fines or special assessments’]
because such deductions benefit employers.” 40 F.3d at 1277; emphasis
added. Moreover, addressing the WAB decision itself, the Circuit stated
as follows (id., emphasis added):
The [WAB] reasoned that the Davis-Bacon Act requires the
payment of prevailing area wages and that Labor's regulations,
which generally prohibit payroll deductions unless specifically
enumerated or approved by Labor, are intended to effectuate that
end. While the unions claimed that the JTP deductions are author-
ized under section 3.5(i) as membership dues, the [Wage Appeals]
Board concluded that JTP deductions are not union membership
dues as that term is ordinarily understood.
And see the emphasis on “deductions” (and the distinctions between
“deductions” and “direct payments” of dues by employees for purposes
of Davis-Bacon enforcement) set forth in Administrator Echaveste’s
June 20, 1995 opinion letter to the AFL–CIO, quoted in next footnote.
17 In this letter (GC Exh. 7(b)), Administrator Echaveste told Presi-
dent Georgine, inter alia, that, although “we continue to be of the view
that job-targeting payments violate the Davis-Bacon Act prohibition
against subsequent deduction or rebate[,] . . . [o]n the other hand
we are also of the view that the Department’s scarce resources to en-
force the [Davis-Bacon] Act should not be utilized where the relation-
ship between the Davis-Bacon deductions and the job targeting project
is remote and investigation would be highly resource-intensive. There-
fore, the Department will not take exception to the funding of job tar-
geting projects by dues payments in the following two situations:
1. Where dues are deducted from employees’ wages and de-
posited in a general fund which may be utilized for a variety of
purposes, union officers may exercise their discretion, from time
to time, to utilize the dues for a job-targeting program. Such an
exercise of discretion should be authorized pursuant to bylaws or
membership resolution. There can be no formal or informal man-
date that funds be spent on job-targeting or earmarking of funds
for the job-targeting program, nor any formula or mandate requir-
ing that any specific project, class of projects, or number of pro-
jects be targeted.
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1507
In any case, as I discuss further in my concluding analyses,
the General Counsel acknowledges that this “primary” theory
applies only to situations where the Respondent may have used
job-threats under the union-security clause to collect MRP dues
accrued by members when working on jobs covered by the
Davis-Bacon Act. As we shall see, however, the General Coun-
sel’s primary theory is of dubious application herein. For one
thing, the only counts in the complaint that I will find the Board
has jurisdiction to adjudicate do not involve the Respondent’s
use of job-threats to collect MRP dues accrued by a member on
a job covered by the Davis-Bacon Act, much less do they in-
volve any attempt by the Respondent to collect such dues
through the device of a forced dues-checkoff “deduction” from
employees’ wages. More fundamentally, the complaint does not
charge the Respondent with having unlawfully coerced em-
ployees on Davis-Bacon jobs into authorizing their employers
to deduct MRP dues from their paychecks, nor does the proof
indicate that this was the case. Rather this prosecution attacks
the Respondent’s invocation of the union-security clause as a
device to compel delinquent members to pay MRP dues—
period. (Without regard to whether or not the members’ delin-
quencies accrued while working on Davis-Bacon jobs; without
regard to whether or not their delinquencies accrued due to
their failure to authorize their employers to “deduct” such dues;
and without regard to whether or not the members’ delinquen-
cies arose due to their employers’ refusal to honor dues-
checkoff authorizations insofar as the authorizations contem-
plated the deduction of MRP dues.)
Accordingly, the question raised for adjudication in this
prosecution does not ultimately turn on the vagaries of why any
given member of the Respondent may have become delinquent
in the payment of MRP dues, nor even on the fortuities of
whether the delinquency did or did not arise on a Davis-Bacon
job. Rather, the pivotal question remains, as stated earlier,
whether MRP dues are, indeed, “periodic dues . . . uniformly
required” within the meaning of the NLRA? For reasons dis-
cussed in due course, I will judge that the answer to this ques-
tion is “Yes”; therefore I will dismiss those counts in the com-
plaint that have survived my jurisdictional dismissals.
Supplemental Findings and Conclusions
I. THRESHOLD JURISDICTIONAL QUESTIONS
A. Governing Principles
It is firmly established as a matter of Constitutional and
statutory interpretation that the Board's jurisdiction to hear and
decide cases under the NLRA is triggered only when the under-
lying labor dispute (whether involving a representation issue
under Sec. 9, or an alleged unfair labor practice under Sec. 8)
may be found to “burden or obstruct” interstate commerce.18

2. Where there are no payroll deductions for dues and em-
ployees pay their union dues directly to the unions, the union may
use the dues to fund a job-targeting program—without regard to
whether a portion of the dues is earmarked for job targeting.
18 Sec. 1 of the Act, stating its “Purposes and Policies,” reveals that
Congress, pursuant to its powers under the Commerce Clause, intended
to prevent certain employer and union practices that “have the intent or
the necessary effect of burdening or obstructing commerce.” See also,
The Board's statutory jurisdiction under this standard is never-
theless quite broad, indeed it is effectively conterminous with
the power of Congress under the Commerce Clause to regulate
any activity of an employer or a labor organization which has a
greater-than-de minimis impact on commerce between and
among the States.19 But even though “the standard which the
Board must meet to establish jurisdiction is extremely liberal,
and the Board's jurisdiction extremely broad, ‘it is not indeter-
minate, and must appear from the record; it cannot be pre-
sumed.’”20
Beyond that, the Board has chosen as a discretionary matter
to limit the exercise of its statutory jurisdiction to labor disputes
that are shown to have a “substantial” impact on interstate
commerce, and has more particularly defined that notion by
establishing minimum interstate “inflow” or “outflow” vol-
umes—themselves varying according to the character of the
business done by one or more employers involved in or af-
fected by the particular matter before the Board.21 Where, as
here, a labor organization is the target of a complaint alleging
violations under Section 8(b)(1)(A) and/or (2), the jurisdic-
tional inquiry focuses on the employer or employers whose
operations are shown to have been affected by the union’s al-
legedly unlawful acts.22 And where, as here, the alleged unfair
labor practices implicate the operations of construction industry
employers engaged in “nonretail” business activities, the Board
requires proof that such affected employers participate, “di-
rectly” or “indirectly,” in a stream of commerce involving an
annual “outflow” or “inflow” across state lines of goods or
services worth more than $50,000.23
B. Application to this Case
Kingston Constructors, Inc. (Kingston) is identified in the
complaint as “the Employer.” Kingston is also the only em-
ployer specifically identified in the complaint as having been
affected by the Respondent’s alleged unfair labor practices.
(The other counts in the complaint have to do with actions of
the Respondent affecting the employees of “other,” unidentified
employers, an indefinite class which I will sometimes refer to
below as the “other employers.”) And only Kingston’s opera-

NLRB v. Fainblatt, 306 U.S. 601 (1939), and NLRB v. Reliance Fuel
Co., 371 U.S. 224 (1963).
19 Fainblatt, supra, 306 U.S. at 606–607; Reliance Fuel Co., supra,
371 U.S. at 226.
20 NLRB v. Peninsula Assn. for Retarded Children, 627 F.2d 202,
203 (9th Cir. 1980), quoting NLRB v. E.L. Clark, 468 F.2d 459, 466–
467 (5th Cir. 1972). See also Clark Concrete Construction Corp., 116
NLRB 321 fn. 3 (1956) (a finding that the Board has statutory jurisdic-
tion is necessary in all Board proceedings, even though no party con-
tests that jurisdiction), and Anchortank, Inc. 233 NLRB 295 fn. 1
(1977) (statutory jurisdiction can be challenged at any stage).
21 See generally, Siemons Mailing Service, 122 NLRB 81 (1959).
22 See, e.g., Carpenters Local 102 (Millwright Employers Assn.), 317
NLRB 1099, 1101 (1995), and authorities cited; Hotel & Restaurant
Employees Local 595 (Arne Falk), 161 NLRB 1458, 1461–1462
(1966); and IBEW Local 257 (Osage Neon Plastics), 176 NLRB 424
(1969).
23 Siemons Mailing, supra, 122 NLRB at 85. And see, e.g., Mill-
wright Employers Assn., supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1508
tions are described in the “jurisdictional” pleadings in the com-
plaint, which allege (at par. 2) as follows:

(a) Kingston . . . is a State of California corporation,
with office and place of business in Burlingame, Califor-
nia[,] where it is engaged in the business of electrical con-
struction.
(b) [Kingston], during the past 12 months, which pe-
riod is representative of all material times, in the course
and conduct of its business operations, purchased and
caused to be delivered to its facilities within the State of
California, goods and materials valued at in excess of
$50,000 directly from sources outside said state, or from
suppliers within said state which in turn obtained such
goods and materials directly from sources outside said
state.
(c) [Kingston] has been at all material times an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.

At the trial, the Respondent amended its answer to admit these
allegations. Accordingly, I find that the Board’s statutory and
discretionary jurisdiction are established over the Respondent’s
alleged unfair labor practices insofar as they were shown to
have affected Kingston’s operations by virtue of its role as
Mulcahy’s employer at the time of those alleged unfair prac-
tices. However, for reasons discussed next, I am unable to con-
clude on this record that the Board has jurisdiction over any of
the other counts in the complaint, all of which involve alleged
actions affecting employees of employers other than Kingston,
i.e., the counts set forth in paragraphs 5(d) and (e) of the com-
plaint.24
The complaint does not identify those “other” employers, nor
does it allege facts about their operations which, if admitted or
otherwise proved, would permit me to find that any of those
employers have an impact on interstate commerce. Not only is
the complaint silent on the point but the General Counsel has
not in any other way addressed the question of the Board’s
jurisdiction over alleged violations affecting these “other” em-
ployers. In the circumstances, I question at the start whether it
is even appropriate for a judge to rummage through the record
to ascertain whether, despite the General Counsel’s inattention
to the issue, there might exist both facts and a theory on which
to predicate a finding that the Board has jurisdiction to adjudi-
cate the “other” alleged violations. Nevertheless, I have done
just that; and although I have traveled down several paths in
search of evidence and a theory that might yield such a finding,
I have reached nothing but dead-ends at every turn. What fol-
lows is a summary of the fruits of my explorations:

24 The counts in pars. 5(d) and (e) are the ones I enumerated as (3)
and (4) in my previous summary, to wit: (3) The Respondent violated
Sec. 8(b)(1)(A) on October 30, 1995, by “threaten[ing]” Mulcahy with
discharge from his then-current job with another (unnamed) “em-
ployer” for non-payment of MRP dues amounts; and (4) the Respon-
dent likewise violated Sec. 8(b)(1)(A) when, “[a]t various times since
July 12, 1995 which are currently unknown to the General Counsel,”
the Respondent also “threatened to cause the termination of other em-
ployees from their employment, whose names are currently unknown to
the General Counsel.”
The trial record incidentally identifies a relative handful of
employers who were specifically shown to have been impli-
cated to some debatable degree in the Respondent’s alleged
“other” violations in the period “since July 12, 1995,” the pe-
riod during which the “other” violations are alleged to have
occurred. I refer specifically to Blessing Electric, Inc., Tice
Electric Co., Team Electric Co., and L.K. Comstock & Co.
(Blessing was shown to have been Mulcahy’s employer for
about 3 days in early June 1995, for which stint Mulcahy did
not pay MRP dues, for which delinquency the Respondent is
alleged to have unlawfully threatened Mulcahy (on October 30,
1995) with discharge under the union-security clause, at a time
when he was shown to be working for L.K. Comstock. Tice and
Team were shown to have been employers of a “traveler”
named Paul Benston in the period August-December 1996,
during which employment stints Bentson had likewise accumu-
lated MRP dues-delinquencies, for which the Respondent, in
January 1997, threatened Bentson with a Stop-Work notice, at a
time when Benston was working for an unidentified employer.)
However, the identification in the record of three of these four
contractors—Blessing, Tice, and Team—would seem to be
wholly irrelevant to the jurisdictional question because these
employers were not shown to have been the employers of the
named employees at the time of these alleged “other” viola-
tions, and thus their operations were not shown to have been in
any meaningful way affected by the alleged “other” violations.
More important, even if the operations of these three contrac-
tors were somehow deemed to be relevant to the jurisdictional
issue, the record contains no evidence about their individual or
collective impact on commerce. Moreover, in the case of L.K.
Comstock, whose operations were arguably affected by the
Respondent’s Stop-Work notice against Mulcahy on October
30, 1995, the record likewise contains no evidence that Com-
stock’s operations satisfied any applicable jurisdictional test.
The record also indicates that the four contractors previously
named were, by virtue of their inclusion in a list of contractors
set forth in General Counsel’s Exhibit 2, among those who have
“assigned the[ir] bargaining rights” to the Oregon-Columbia
Chapter of the National Electrical Contractors Association
(ONECA), and who were also “signator[ies]” to the Inside
Agreement negotiated between ONECA and the Respondent.25
However, for jurisdictional purposes, this information is again
merely tantalizing, because even assuming that these few iden-
tified “other” employers have, by assigning their bargaining
rights to ONECA, composed themselves so as to permit con-
sideration of their collective impact on commerce,26 the record
25 Testimony of ONECA’s attorney, Van Cleave, associated with the
admission of G.C. Exh. 2 into evidence.
26 See, e.g., Stack Electric, 290 NLRB 575, 576–577 (1988), where
the Board held that if the collective “outflows” or “inflows” of employ-
ers who have commonly assigned their bargaining rights to a multiem-
ployer association exceed $50,000, this will justify asserting jurisdic-
tion over any one of them, without regard to whether or not the em-
ployees of the employer-members of the association comprise an ap-
propriate multiemployer bargaining unit, and even when the single
employer targeted by the complaint was not shown to satisfy the im-
pact-on-commerce test. See e.g., Millwright Employers, supra, 317
NLRB at 1101; Bufco Corp., 291 NLRB 1015, 1016 (1988).
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1509
still contains no information about their individual or collective
annual “inflows” or “outflows” across state lines.
Neither can Kingston’s proven “inflows” and “outflows” be
used as a bootstrap to establish the Board’s common statutory
and discretionary jurisdiction over alleged unfair labor practices
affecting these “other” employers, for Kingston was not shown
to have been a member of ONECA, much less to have dele-
gated its bargaining rights to ONECA.27 Indeed, if the record
implies anything meaningful in this respect, it is that King-
ston’s apparent status as an employer bound to the Inside
Agreement arose entirely outside the auspices of ONECA.28
The Board’s recognition that participants in a multiemployer
bargaining arrangement may be bound to action of the group
representative is predicated on the consent of the parties to such
a result. Marty Levitt, 171 NLRB 739 (1968); Evening News
Assn., 154 NLRB 1494 (1966), affd. sub nom. Detroit Newspa-
per Publishers Assn., 372 F.2d 569 (6th Cir. 1967). And see
James Luterbach Construction, 315 NLRB 976, 977 (1994)
(employer has statutorily-conferred “right to eschew multiem-
ployer bargaining” absent “clear and unmistakable manifesta-
tion of consent to be bound” thereby). It cannot be assumed that
Kingston’s apparent “mere adoption” of the Inside Agreement
negotiated by ONECA made Kingston part of any multiem-
ployer unit of ONECA contractors that may otherwise exist.
Gordon Electric Co., 123 NLRB 862 (1959); Greater Syracuse
Printing Employers’ Assn., 140 NLRB 217 (1963). Similarly,
even though Kingston was shown itself to satisfy statutory and
discretionary requirements for assertion of jurisdiction, King-
ston’s mere adoption of an agreement that also binds other

27 Kingston is not one of the contractors listed as an “IBEW/NECA
contractor” on G.C. Exh. 2, which, as previously noted, is an exhibit
introduced by the prosecution through witness Van Cleave to show
which ONECA members were not only “signatory contractors” to the
Inside Agreement, but also had “assigned their bargaining rights to
[ONECA].” If Kingston had been shown to have unambiguously dele-
gated its bargaining rights to ONECA, then, under the authorities cited
in the last footnote (and the further authorities cited below in main
text), the proof that Kingston individually satisfied statutory and discre-
tionary jurisdictional tests would be enough to establish jurisdiction
over alleged unfair labor practices by the Respondent affecting any of
the “other” contractors who were shown to have “assigned their bar-
gaining rights to ONECA.” But Kingston was not shown to have dele-
gated bargaining rights to ONECA; rather, as I note elsewhere below,
the record implies at most that Kingston regarded itself somehow as
bound to the Inside Agreement. But this fact is itself inconclusive:
Certainly, nothing in the terms of that agreement suggest that an em-
ployer bound to it is even a member of ONECA, much less that the
employer-signatory has delegated bargaining rights to ONECA. (The
Inside Agreement recites simply that it is “by and between [ONECA]
and [the Respondent],” and that it “shall apply to all firms who sign a
Letter of Assent to be bound by this agreement.”)
28 As already noted, Kingston is not listed on G.C. Exh. 2 as an em-
ployer-signatory to the Inside Agreement, and thus Kingston was not
shown to have delegated its bargaining rights to ONECA. Moreover,
the pleadings establish that Kingston is a California corporation with
business headquarters in Burlingame, California, and there is no evi-
dence that Kingston had a regular “presence” in the Portland area.
Rather, so far as this record shows, Kingston’s work on the “Westside
Light Rail Project” (where it employed Mulcahy in June-July 1995)
represented its only business foray into the Portland area.
employers is not sufficient to invest the Board with jurisdiction
over alleged unfair labor practices affecting those other em-
ployers.
In addition, I have considered the possibility that certain
facts in the record might enable an argument for the assertion of
statutory jurisdiction over the operations of Comstock, because
Comstock was shown to have been working on a “Federal
Davis-Bacon job” on October 30, 1995, when the Respondent,
seeking MRP dues accrued by Mulcahy during his previous
employment by Blessing on a Davis-Bacon job in early June,
effectively threatened to have Mulcahy fired by Comstock un-
der the terms of the union-security agreement. Thus, the fact
that Comstock and Blessing (most importantly, Comstock—
because its operations alone could be said to have been affected
by the Respondent’s allegedly unlawful threat against Mulcahy
on October 30, 1995) were subject to the provisions of the
Davis-Bacon Act might conceivably be invoked as a basis for
finding that the Board has at least statutory jurisdiction over the
Respondent’s alleged violations affecting them. See Catalina
Island Sightseeing, 124 NLRB 813 (1959) (Board has statutory
jurisdiction over employer because employer was shown to be
subject to regulation under the Commerce Clause by another
Federal agency). However, I judge that any such arguments
would themselves be quite problematic,29 and even if resolvable
in the prosecution’s favor, could not carry the day in the ab-
sence of evidence that Comstock (or any other employer identi-
fied in the record as having been genuinely affected by “other”
alleged unfair labor practices), satisfied discretionary tests.30
In sum, the record does not affirmatively show that the op-
erations of any of the “other” employers who may have been
affected by the Respondent’s alleged post-July 12, 1995 unfair
labor practices satisfy either the statutory or discretionary pre-
requisites to the Board’s exercise of jurisdiction to decide the
merits of those alleged unfair labor practices. Lacking such
affirmative evidence, I am not entitled to presume that any of
those other employers satisfy these jurisdictional requirements.
The General Counsel bore the burden of persuasion on the
question of the Board’s jurisdiction over allegedly unlawful
acts of the Respondent. The General Counsel sustained that
29 It is doubtful at the threshold that the Davis-Bacon Act represents
an exercise by Congress of powers under the Commerce Clause to
“regulate” interstate commercial activity, as distinguished from merely
constituting an exercise incidental to its spending powers under the
Constitution, i.e., as declaring the “prevailing-wage” conditions that
must be satisfied before Congress will permit the commitment or pay-
ment of Federal funds for any “public works” project. And in this re-
gard I note that although the NLRA clearly reveals at Sec. 1, supra, a
Congressional intent to exercise regulatory powers under the Com-
merce Clause, the Davis-Bacon Act appears to contain no counterpart
expression of such intent.
30 Even if the Davis-Bacon Act were construed to be an act of “regu-
lation” of commercial activity done under the authority of the Com-
merce Clause, the record still fails to show that the operations of any of
the identified “Davis-Bacon” employers satisfied the Board’s discre-
tionary standards for jurisdiction. Nor do I regard myself as empowered
to “waive” discretionary jurisdictional requirements established by the
Board. Rather, it would be for the Board, which has the discretionary
authority in the first instance to put limits on its exercise of statutory
jurisdiction, to waive those limits in a given case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1510
burden as to acts against Mulcahy when he was employed by
Comstock. However, as to counts in the complaint involving
alleged wrongdoing against Mulcahy or “other” employee-
members when they were employed by “other” employers, the
General Counsel developed no coherent body of evidence in
support of that burden, nor did the prosecution advance any
argument as to how or why on this record it could be found to
have carried that burden.
In all the circumstances, therefore, I judge finally that the
prosecution has not carried that burden as to those “other”
counts. Accordingly, I summarily dismiss the counts set forth in
paragraphs 5(d) and (e) for want of proof of jurisdiction, and
my findings and discussion hereafter will focus primarily on
facts relevant to the legal merits of only those counts that were
shown to satisfy impact-on-commerce tests, i.e., those counts
that relate to Charging Party Mulcahy’s experiences at the Re-
spondent’s hands while employed by Kingston in June-July
1995.
II. THE MATERIAL FACTS IN OVERVIEW
Applicable Contract Provisions and “Monthly Dues”
Requirements
On June 21, 1995,31 Mulcahy, a journeyman electrician and
member of the Respondent, began working for Kingston on
what the parties stipulated was a “Federal Davis-Bacon pro-
ject.” As elaborated in the next section, the Respondent caused
Kingston to fire Mulcahy about 3 weeks later, because he was
delinquent on the payment of “Market Recovery dues” that he
had accrued during an earlier stint of employment for Excalibur
Electric, on a job that the parties stipulated was not a “Federal
Davis-Bacon” job. As further described below, Market Recov-
ery dues, or MRP dues, had been part of the Respondent’s
“monthly dues” structure since early 1986, when, based on
circumstances and implementational details described else-
where below, the MRP was inaugurated.
In June-July 1995 Kingston regarded itself as bound to the
terms of the Inside Agreement,32 the labor agreement negoti-
ated between ONECA and the Respondent which apparently
covered the work done by the largest share of the Respondent’s
members.33 The Inside Agreement contained, at article II, sec-

31 All dates below are in 1995 unless I say otherwise.
32 There is no direct evidence that Kingston was a signatory to the
Inside Agreement or that it had signed a Letter of Assent to bind itself
to that agreement. However, Kingston’s written communications to
Mulcahy and to the Respondent, discussed infra, make reference to
“Article II, paragraph 2.03.03” of “the agreement,” and, in context, this
was clearly a reference to the union-security provisions of the Inside
Agreement.
33 The record vaguely indicates that the Respondent also maintains at
least three other labor agreements with employers other than those
electrical construction firms that are bound to the Inside Agreement:
These include a “Residential Agreement,” apparently covering an un-
certain number of employees involved in electrical installations on
residential construction projects; a “Sound and Communications (or
“Low-Voltage”) Agreement,” apparently covering a smaller group of
employees whose work is confined to the installation and maintenance
of systems for telephones, intercoms, and other electronic communica-
tion devices using “low voltage”; and a “Marine Agreement,” appar-
ently covering another small unit of workers who install and maintain
tion 2.03.02, a facially lawful union-security agreement for the
construction industry requiring covered employees, after a 7-
day grace period,34 to become and remain “members” of the
Respondent.35
In June-July 1995, the Respondent’s bylaws required (at art.
X, sec. 7(a)) that “members” pay “monthly dues” according to
a variable schedule which expressly included an amount ear-
marked for the MRP fund from members who worked under
the Inside Agreement. Thus, under the variable dues schedule,
all members, regardless of their employment status, were re-
quired to pay “basic dues” each month of $1.70. In addition,
members were required to pay “working dues” in amounts that
varied depending on their hourly pay rate (from as little as
$3.30 per month if the member earned less than $4.24 per hour,
to as high as “1% of 160-hour gross wages” if the member
earned $8.75 per hour or more). Most significantly for our pur-
poses, section 7(a) provided further that “[m]embers working
under the terms of the Inside Construction Agreement” must
pay “additional working dues of 3.5% of gross wages to fund
the Local Union 48 Electrical Advancement Program,”36 the
same program now more commonly called the MRP.
The MRP dues obligation specified in the bylaws facially
applied to all “members” who worked under the Inside Agree-
ment. (Although the record is vague on the point, it may be

electrical systems on boats and ships. The record does not indicate,
however, whether ONECA is a party to any of these other agreements.
34 Where, as here, the labor relationship arises in the building and
construction industry, the superseding provisions of Sec. 8(f) of the Act
allow union-security clauses to provide a 7-day grace period for acquir-
ing or retaining union membership, rather than the 30-day period speci-
fied in Sec. 8(a)(3). Thus, Sec. 8(f) states pertinently that “[i]t shall not
be an unfair labor practice under subsections (a) and (b) of this section
for an employer engaged primarily in the building and construction
industry to make an agreement covering employees engaged (or who,
upon their employment, will be engaged) in the building and construc-
tion industry with a labor organization of which building and construc-
tion employees are members . . . because . . . (2) such agreement re-
quires as a condition of employment, membership in such labor organi-
zation after the seventh day following the beginning of such employ-
ment[.]”
35 The complaint does not allege, and the General Counsel does not
otherwise contend, that the Respondent has failed to notify employees
of their rights under General Motors[*], as clarified in Beck, supra, to
refrain from becoming “full members” of the Respondent and to decide
instead to become obligated to the Respondent only to the extent of
paying those dues amounts necessary to support the Respondent in its
role as their collective-bargaining representative.[**] Because such
questions were not raised—much less were they litigated—I cannot
assume that the Respondent has been derelict in this regard.
[*] NLRB v. General Motors Corp., 373 U.S. 734, 742 (1963).
[**] And see California Saw & Knife Works, 320 NLRB 224, 231
(1995) (union seeking to apply union-security clause to unit employees
has general “fair-representation” duty to notify employees of General
Motors/Beck rights before they become subject to obligations under the
clause), and Paperworkers Local 1033 (Weyerhauser Paper Co.), 320
NLRB 349, 350 (1995) (union duty to notify employees of Beck rights
includes duty to so notify current members if they did not receive such
notice when they entered the bargaining unit).
36 As further noted below, the bylaw language just quoted has been
in existence since 1992, and represents a modification of similar lan-
guage that had been in the bylaws since the 1986 inception of the MRP.
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1511
that, in practice, first-year apprentices in a “probationary”
status were exempted from paying MRP dues even if they
worked under the Inside Agreement, but it likewise appears
that, in practice, the Respondent did not admit any first-year
apprentices to “membership.”)37 In addition, at least in the
June-July 1995 period that directly concerns us, the record
shows that MRP dues were also required of all “travelers”
(IBEW members who maintained “home local” membership in
a local other than the Respondent) who performed work cov-
ered by the Inside Agreement within the Respondent’s territo-
rial jurisdiction.38 Finally, contrary to some suggestions in the
General Counsel’s brief, members working under the Inside
Agreement were the only members of the Respondent who
were obligated under the bylaws to pay MRP dues. (It vaguely
appears from the record that members working under the
“Residential Agreement” also were participating in some man-
ner in the MRP—or perhaps in “an MRP program” similar to
“the” MRP.39 But if so, the Respondent’s bylaws are silent as to

37 Bruce testified generally that “apprentices in their first year. . .
don't contribute to market recovery” because they are regarded as “pro-
bationary.” This present-tense testimony does not clearly indicate,
however, that the same exemption was applied to first-year apprentices
in June-July 1995. At least as important, it is not evident on this record
that the implied “exemption” for first-year apprentices was, in reality, a
genuine exemption from the “monthly dues” provisions otherwise
binding on all “members,” for the record fails to show that the Respon-
dent admits any first-year apprentices to “membership.” And if first-
year apprentices were not “members,” it would be irrelevant for our
purposes that they may not have been required to pay the MRP dues
required of “members” who worked under the Inside Agreement. In-
deed, after studying relevant provisions in the Respondent’s bylaws and
the IBEW Constitution, I am inclined to interpret Bruce’s testimony as
implying that, in practice, apprentices were not admitted to membership
until the completion of a 1-year probationary period. Thus, art. XV, sec.
2 of the Respondent’s bylaws, dealing with the admission of “appren-
tices” to membership, provides that “[a]pprentices may be accepted into
membership at any time” (emphasis added), but further mandates that
“they shall be admitted to membership in accordance with Article XVI
of the IBEW Constitution.” And art. XVI of the IBEW Constitution
provides pertinently (at sec. 14) that “after . . . an apprentice has
worked 1 year in the jurisdiction of the L[ocal] U[nion], he shall be
admitted into the IBEW, through the L.U. without further action by the
L.U.” In any case, I emphasize that the “monthly dues” section of the
bylaws does not affirmatively acknowledge any exemption for first-
year apprentices who may be “members.”
38 The Respondent’s bylaws provide at art. X, sec. 1, that
“[m]embers of other IBEW Local Unions employed in the jurisdiction
of this Local Union shall pay applicable working dues as provided in
these bylaws.” (See also similar language at art. X, sec. 7(d), following
the identification of MRP dues as “additional working dues.”) Parsing
of the bylaws aside, the Respondent acknowledges that it treated these
provisions in June-July 1995 as requiring travelers who worked under
the Inside Agreement to pay MRP dues. Indeed, Bruce testified that it
was only in response to the Ninth Circuit’s (October 20, 1995) decision
in IBEW Local 357 v. Brock, 68 F.3d 1194, that the Respondent
stopped trying to collect MRP dues from travelers working on Davis-
Bacon jobs who “objected” to paying such dues on such jobs.
39 Van Cleave and Bruce commonly testified in summary terms that,
sometime in 1987, members working under the Residential Agreement
voted to “participate” in the MRP and began to pay MRP dues. At p. 22
of the prosecution brief, counsel for the General Counsel appears to
rely on this testimony when she states (in the nature of a concession,
their obligations to pay MRP dues, and it remains unclear in
any case whether any MRP dues being paid by members work-
ing under the Residential Agreement were being paid into the
same MRP fund as the fund that received MRP dues from
members who worked under the Inside Agreement.)
Recognizing that in cases like this the Board sometimes
seems to place partial reliance on the “fortuities” of the “termi-
nology” a union uses to describe a disputed levy,40 I further
note as follows: The bylaws clearly show that the Respondent
drew a distinction between “dues” and “assessments,” and that
it regarded MRP dues as “monthly dues,” distinct from any
“assessments” the Respondent might also impose on its mem-
bership. Thus, the requirement for MRP dues appearing in arti-
cle X, section 7(a) is preceded by an opening clause which
states, “The monthly dues shall be based on the member’s
hourly wage rate as follows:” And the distinction between
“monthly dues” and “assessments” is made even more apparent
in subsection (b), which provides that “[a]pplicable Interna-
tional per capita and all assessments [are] to be paid in addition
to the above dues.” Id. (emphasis added).41 Therefore, although
the record plainly shows that the Respondent treated MRP dues
as “special-purpose” dues, it is equally clear that the Respon-
dent still regarded MRP dues as part of its “periodic dues”
structure, and not as “assessments.”
Recognizing that the General Counsel, for reasons never
clearly articulated, somehow finds the Respondent’s dues-
checkoff practices to be relevant to this case, I further find as
follows: At all times since the MRP’s 1986 inauguration, the
“Union Dues” section of the Inside Agreement (Art. III, sec.
3.06.03) has contained the following provision:

The Employer agrees to deduct and forward to the Financial
Secretary of Local Union 48, upon receipt of a voluntary writ-
ten authorization, dues and assessments from the pay of each
IBEW member. The amount to be deducted shall be the
amount specified in the approved Local Union Bylaws. Such
amount will be certified to the Employer by the Local Union
upon request by the Employer.

ONECA’s attorney, Richard Van Cleave, and the Respon-
dent’s current business manager, Gerald Bruce, testified har-
moniously that this contractual language first appeared as part
of the “overall agreement” reached by those parties that re-
sulted in the Respondent’s inauguration of the MRP. These
witnesses agree that, until that time, ONECA had always op-

considering the context) that “members working under the Residential
Agreement” were also “required” to pay MRP dues. But at p. 4 of the
same brief, counsel for the General Counsel, apparently mindful of the
same ambiguity in this testimony that I have suggested, states (my
emphasis), “as of about a year or so after MRP started, employees
working under the Residential Agreement voted to participate in an
MPR [sic] program.”
40 See discussion in Pacific Northwest Newspaper Guild v. NLRB,
877 F.2d 998, 999, and fn. 2 (D.C. Cir. 1989). See e.g., Teamsters
Local 959, supra, 167 NLRB at 1042, 1044.
41 In addition, see art. X, sec. 1: “All assessments imposed in accor-
dance with the IBEW Constitution and these bylaws must be paid
within the time required to protect the member’s continuous good
standing and benefits.” See also, id.: “Members shall not be required to
pay assessments for welfare benefits in which they cannot participate.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1512
posed any dues-checkoff arrangement. However, it is not cer-
tain that the Respondent had ever previously sought a dues-
checkoff clause, for Bruce testified that it was historically too
complicated for employers to do the calculations required to
determine the “working dues” any given member might owe in
any given month. Consequently, says Bruce, the Respondent
had always billed its members directly for their basic dues and
working dues, and members either paid these amounts “at the
window” at the union hall, or authorized their credit union or
bank to deduct and transmit the billed dues amounts from their
private accounts. Indeed, says Bruce, even after the dues-
checkoff clause became incorporated into the Inside Agreement
in 1986, the employers who received signed authorizations
from employees to deduct union dues and assessments42 would
apply these authorizations only to their MRP dues amounts,
which, as Bruce noted, was a fixed percentage of earnings on
the particular job, and therefore simple for employers to calcu-
late. In addition, states Bruce, even after the dues-checkoff
language was included in the Inside Agreement, the Respon-
dent continued to use traditional, direct-billing procedures to
collect basic dues and other working dues amounts from its
members.
It is evident from the foregoing testimony that the parties’
main reason for including dues-checkoff language in the Inside
Agreement in and after 1986 was to facilitate collection of the
MRP portion of the dues owed. However, it further appears
that, by 1995, the Respondent had long since abandoned the
dues-checkoff authorization as a reliable vehicle for collecting
MRP dues—especially when member-employees accrued such
dues while working on Davis-Bacon jobs. Thus, 4 years before
this case arose, and in reaction to the 1991 WAB decision, su-
pra, ONECA had instructed its “members” and other “signa-
tor[ies]” to the Inside Agreement that they should “no longer
deduct the union dues for market recovery from any em-
ployee’s wages on Federal Davis-Bacon projects[,]” further
advising that employees “can go to the local union and pay
directly or have their credit union account increased to the ap-
propriate amount.” 43 As a consequence, apparently long before
Mulcahy started with Kingston in late June 1995, a substantial
number of contractors bound to the Inside Agreement (perhaps
“most” of them, as the General Counsel interprets the record44)
were no longer deducting MRP dues from employees’ wages,
especially not when they worked on Davis-Bacon jobs, not
even when presented by employees with the Respondent’s
standard dues-checkoff form. And as a further consequence of
these 1991 events, as I understand Bruce’s testimony, the Re-

42 At all material times the Respondent’s standard checkoff form,
when signed by an employee, authorized the employer to deduct and
transmit to the Respondent “all Union dues and assessments including
initiation fees and reinstatement fees in the amount certified to by the
Business Manager of Local Union 48.”
43 These instructions are set forth in a letter dated June 21, 1991,
from ONECA to its members and other contractors signatory to the
Inside Agreement. ONECA also stressed in this 1991 letter that its
instructions applied “only on Federal Davis-Bacon jobs,” and that the
State of Oregon has determined that dues deductions for market recov-
ery on State Davis-Bacon is allowable.”
44 G.C. Br. at p. 6.
spondent itself had reverted to direct-billing procedures to col-
lect all dues owed—including MRP dues— from members
working under the Inside Agreement.45
III. MULCAHY’S TREATMENT BY THE RESPONDENT IN
JUNE-JULY 1995
Mulcahy knew when he started with Kingston on June 21
that he had not paid any MRP dues accrued when he had
worked for Excalibur on a non-“Federal-Davis-Bacon” job
earlier in the spring of 1995. Upon becoming employed by
Excalibur, he had tendered the standard dues-checkoff form,
but Excalibur had refused to deduct any MRP dues amounts
from his paycheck.46 Mulcahy then had protested in some man-
ner to the Respondent, and one of the Respondent’s business
agents, Grant Zadow, had visited the Excalibur jobsite and told
Mulcahy that he owed the MRP dues without regard to Excali-
bur’s refusal to honor his checkoff authorization. Also, at some
point before June 23—probably before Mulcahy began working
for Kingston on June 21—Mulcahy had received a set of dues-
billing notices from the Respondent, indicating that he owed a
“grand total” of $317.73 linked to his prior employment by
Excalibur.47 The notices specified that $316.61 of that total
reflected “Market Recovery Dues Owing,” and that the remain-
ing balance of $1.12 was owed for “PAC.”48
45 Bruce’s testimony is ambiguous on a marginal question: In the af-
termath of the 1991 WAB decision and ONECA’s instructions to its
contractor-affiliates, did the Respondent (a) revert exclusively to direct-
billing to collect MRP dues owed by members in addition to the “basic
dues” and other “working dues” amounts that were already being col-
lected by direct-billing? or (b) simply use direct-billing to collect MRP
dues accrued on Davis-Bacon jobs, while continuing to rely on the
dues-checkoff process to collect MRP dues accrued on non-Davis-
Bacon jobs? Considering that the Respondent was already using direct-
billing to collect “basic dues” and “working dues” other than MRP
dues, the latter possibility strikes me as a highly improbable one be-
cause of the obvious administrative headaches (special accounting,
employee-tracking, partial billing) that would necessarily attend any
such bi-level process of collection.
46 This suggests, consistent with earlier findings, that, by 1995, even
employers on non-Davis-Bacon jobs were balking at honoring dues-
checkoff authorizations insofar as they contemplated deduction of MRP
dues amounts.
47 These billing notices (GC Exh. 10(a)) are undated, but they spec-
ify that the amounts in question were linked to Mulcahy’s previous
employment by Excalibur, and that the amounts were “due by 6/23/95.”
I infer from this latter text that the notices were received by Mulcahy
well before the specified due-date, probably before June 21, when he
started working for Kingston.
48 Two points are worth noting regarding this “PAC” amount: First,
Bruce testified without contradiction that there are no “Beck objectors”
among the Respondent’s constituency. Second, the parties stipulated as
follows: “The issues litigated in this case do not include PAC assess-
ments and the letters reflecting such assessments are not to be con-
strued as raising an issue to the [sic] effect in this case. The parties
agree that such an issue was not pled in the Complaint.”
It was the evident intent of the parties to this stipulation—and the
General Counsel has not suggested otherwise on brief—to exclude
from this prosecution any possible challenges to the lawfulness of the
Respondent’s attempts to collect “PAC” assessments from its members.
Accordingly, I will devote no further attention to any such questions.
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1513
On June 27, when Mulcahy was now employed by Kingston,
the Respondent’s then-business manager, Edward Barnes, dis-
patched a standard-form letter to Mulcahy advising him that the
Respondent’s “records covering wages and fringe benefits
through May 95 show a delinquency of $377.32 for the 3.5%
‘Market Recovery’ dues.”49 (The parties stipulated that the
delinquency referred to in this letter was based on hours Mul-
cahy had previously worked for Excalibur.) The letter further
threatened that if Mulcahy did not “respond,” the Respondent
would send a “‘Stop Work’ notice” to your employer.”
On July 13, after Mulcahy still had not paid the Excalibur-
related MRP dues-delinquency, Barnes mailed the threatened
“Stop Work notice” to Kingston, and also mailed a copy of that
notice to Mulcahy. In pertinent part, the notice stated:

We hereby request the termination of [Patrick Mulcahy] as he
. . . has failed to comply with the collective bargaining agree-
ment between your firm and Local Union 48 IBEW. We ask
that this Stop Work request become effective 48 hours from
your receipt.

On July 18, Kingston, in turn, told Mulcahy in a written
memorandum that the Respondent had requested his termina-
tion and had advised Kingston that the reason was Mulcahy’s
failure “to pay union dues per Article II, paragraph 2.03.03 of
the Union Agreement.” And by a separate notice bearing the
same date, Kingston advised the Respondent that it had “dis-
charged” Mulcahy “[a]s directed by IBEW Local 48 per terms
of agreement Article II, paragraph 2.03.03.”
Apparently referring to these same documented transactions,
but using an inconsistent date and a misleading verb, the parties
stipulated that “[o]n July 19 [sic], 1995, Patrick Mulcahy was
issued [sic] a Stop Work Order but did not lose any pay and
returned to work later the same day after payment was made to
the Local Union.” I regard the apparent discrepancies between
the stipulation and the documentary evidence as immaterial. In
reliance on the documentary record as otherwise supplemented
by this stipulation, I find that Kingston discharged Mulcahy on
July 18 (perhaps at the end of the workday), then reinstated him
(on the morning of July 19, apparently), after he had paid the
Excalibur-related MRP dues-delinquency, and before he had

49 The General Counsel has disclaimed any contention that by this or
other prior notices the Respondent may have independently violated its
“fiduciary duties” under Philadelphia Sheraton[*] to give Mulcahy
appropriate “notice” of his delinquencies and an “opportunity to cure”
them before seeking his discharge. Accordingly, that question is not
before me.
[*] NLRB v. Hotel & Restaurant Employees Local 568 (Philadelphia
Sheraton), 320 F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB 888
(1962). See also Communications Workers Local 9509 (Pacific Bell),
295 NLRB 196 (1989), where the Board stated, “Under Philadelphia
Sheraton, a union seeking to enforce a union-security clause against an
employee has a fiduciary duty to deal fairly with that employee. This
requires that before a union may seek the discharge of an employee for
the failure to tender owed dues and fees, it must at a minimum give the
employee reasonable notice of the delinquency, including a statement
of the precise amount and months for which dues are owed and of the
method used to compute this amount, tell the employee when to make
the required payments, and explain to the employee that failure to pay
will result in discharge.”
suffered any loss of wages from his employment with King-
ston.
Although the foregoing findings are sufficient in my view to
permit adjudication of the lawfulness of the Respondent’s
treatment of Mulcahy in June-July 1995, I make these addi-
tional findings on matters of arguable relevance to that same
issue: The undisputed record clearly shows that the Respon-
dent’s actions against Mulcahy in June-July 1995 were not
unique, but rather were taken as part of a more general dues-
enforcement program that governed until February 12, 1997,
when the Respondent began to resort exclusively to “civil-
collection” procedures to recover any MRP dues or other dues
from delinquent members.50 Thus, the parties stipulated more
generally that,

At all times material herein prior to February 12, 1997, Local
48 widely publicized its policy of invoking the union security
clause, including the threat of discharge, if any member failed
to pay all dues owed to Local 48, including Market Recovery
monies, owing for work performed within the jurisdiction of
Local 48, including any Federal Davis Bacon jobs. Thereafter,
Local 48 widely publicized its change in policy regarding
dues delinquency enforcement as set forth in GC Exhibit
15.[51]

Relatedly, the parties further stipulated, in substance, that the
sequential billings, warnings, and Stop-Work notices the Re-
spondent used in Mulcahy’s case were illustrative of the pa-
perwork and procedures the Respondent used generally to col-
lect supposed dues-delinquencies from members at all material
times before February 12, 1997.52
50 Although it doesn’t affect the merits, I note as a matter of histori-
cal interest that the Respondent’s wholesale switchover to a civil-
collection policy occurred only after the General Counsel authorized
the complaint in this case and only a day before the Acting Regional
Director issued that complaint.
51 GC Exh. 15 is a copy of the Respondent’s newsletter to its mem-
bers announcing the new civil-collection policy, under the headline,
“Local 48 Gets Tough On Dues.”
52 Because I judge that the Respondent was legally privileged in ex-
ercising rights under the union-security clause of the Inside Agreement
to collect MRP dues-arrearages from Mulcahy when he was employed
by Kingston, it is unnecessary to decide whether the Respondent’s
publicized February 1997 switchover to a civil-collection policy truly
reflected an abandonment of job-threats as part of its collection pro-
gram. However, if my judgment that the Board’s jurisdiction is limited
to consideration of the alleged unfair labor practices against Mulcahy
while employed by Kingston were reversed, I note as follows regarding
one lingering feature of the Respondent’s post-switchover collection
program: The parties stipulated that even under the changed program,
the Respondent continued to send a “delinquency-dues notice” used
under the former program which contains a plain job threat in its boi-
lerplate, stating (my emphasis), “Unless a payment is received on or
before [date and time] you will be suspended and required to pay a
reinstatement fee of [amount] in order to continue working.” Bruce
testified, however, that the job-threat implicit in the form’s boilerplate
did not reflect the Respondent’s actual collection policy after February
12, 1997, and he explained that reasons of simple economy caused the
Respondent to continue using the standard delinquency-notice form
containing this language until supplies ran out.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1514
IV. THE MARKET RECOVERY PROGRAM
A. The Employer-Subsidy Arrangement
As previously noted, what is now usually called the Market
Recovery Program was called in its early stages the “Electrical
Industry Advancement [or “Recovery”] Program.” Although
employer subsidies are not the only feature of the MRP (the
evidence, discussed infra, shows that “promoting the organized
electrical construction industry” is the broader charter of the
program as it was approved by the Respondent’s membership
in November 1985), the subsidies are a central feature, and
deserve a brief description.
The subsidy arrangement contemplated from its inception
that a contractor bound to the Inside Agreement facing
competitive bids for a given job from one or more nonunion
contractors could apply to the Respondent for an MRP subsidy
for that job in an amount that would effectively permit the
subsidized employer to pay wage and benefit contributions
from its own pocket that were lower than those called for under
the Inside Agreement, with the MRP subsidies used to ensure
that electricians on the subsidized job would nevertheless
receive the actual rates prescribed by the Inside Agreement. In
the first year of the program’s operation (1986–1987), the
Respondent paid this subsidy directly to employees on the
subsidized job, but after the first year, the Respondent began
paying the subsidies directly to the employer-applicant in a
gross amount linked to its certified payroll, and the employer
then used these moneys to help it pay employees at the rates

and other terms prescribed in the Inside Agreement. And it was
this latter practice that prevailed at all times material to all al-
leged unfair labor practices in this case, including those I have
found the Board is without jurisdiction to adjudicate.
B. Origins of and Reasons for the MRP
The MRP was born in 1985–1986, when ONECA members
bound to the Inside Agreement were facing significantly in-
creased competition from nonunion contractors who paid lower
hourly wages to their workers than those prescribed in the In-
side Agreement. In fact, according to the harmonious accounts
of Van Cleave and Bruce, in the previous decade, ONECA
members had lost a substantial share of the electrical construc-
tion market in the Portland area to nonunion contractors; and,
as a closely related consequence, the Respondent’s regular
membership working under the Inside Agreement had plum-
meted to about 800 from a one-time high of about 1700. (Ac-
cording to Bruce, many of the Respondent’s regular members
formerly working under the Inside Agreement had become
“travelers” in the meantime, seeking work in the trade in other
regions of the country.)53
53 These same witnesses affirm that in the 11 years since the MRP
was implemented, the subsidy feature of the MRP has caused a dra-
matic upswing in employment opportunities for both unionized electri-
cal contractors and for the Respondent’s constituents; indeed, Bruce
testified that the Respondent currently has about 2000 members—plus
another 1000 or so travelers—working within its jurisdiction, and that it
cannot find enough out-of-work electricians to satisfy the requests of
employers seeking to use its hiring-hall and referral services.
This crisis loomed over the Respondent’s and ONECA’s
midterm renegotiations of the Inside Agreement’s wage provi-
sions, a contractually contemplated process that apparently
began sometime in 1985 and continued at least into April 1986,
at which latter point, according to Van Cleave, “the initial
[MRP] program was agreed to.” Although matters of precise
timing and sequence during this period remain uncertain, the
main developments associated with that renegotiation process
were as follows:
In the early stages of the renegotiations, ONECA demanded
wage-reductions of $5 per hour to enable its employer-
members to compete with the nonunion firms. The Respondent
rejected wage-givebacks, but in recognition of the underlying
problem, it proposed instead the job-targeting, or wage-subsidy
program that became the MRP. ONECA agreed in principle to
the Respondent’s counterproposal, but only after researching
the potential antitrust implications of such an arrangement and
then getting the Respondent’s promise that all such subsidies
would come exclusively from the Respondent’s treasury, and
would be paid for by “union dues” placed in a fund to be ad-
ministered exclusively by the Respondent. Both Van Cleave
and Bruce further testified, credibly, that the employer subsi-
dies, although central to the MRP, would not be the only uses
for the Respondent’s MRP fund. Rather, these witnesses agree
(and language in the membership Resolution discussed next
supports them) that the understanding from the start was that
MRP funds would also be used to support the Respondent’s
“advertising” and “organizing” programs.
C. The Respondent’s Implementation and Administration
of the MRP
The parties may well have reached these agreements in prin-
ciple sometime before November 2, 1985, for it was on that
date that a majority of the Respondent’s members voted by
secret ballot in favor of a Resolution enabling the Respondent
to fund just such a program through a “special-dues” increase.
Key provisions of the Resolution were as follows:

1. That our Local will create and fund a program to be
known as the Electrical Industry Recovery Program. . .
whereby a fund will be created consisting exclusively of
our Local’s money which will be used for the exclusive
purpose of promoting the organized electrical construction
industry within the jurisdiction of Local 48 by such means
as wage supplements on certain jobs (by which employees
on a job for which a lower rate has been negotiated will be
reimbursed by the Program), advertising, educational pro-
grams, productivity studies, and related activities.
2. That the Program will be funded by the payment of
special dues by all employees working under the Inside
Agreement in an amount equal to 3-1/2% of their gross
earnings, which special dues shall be in addition to the
working dues currently being paid.
3. That the assets of the Program shall be maintained
in a separate account designated as the Electrical Industry
Recovery Program (I.B.E.W. Local Union 48).
. . . .
6. That in the event the Program is terminated by the
Business Manager and the Executive Board, the special
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1515
dues will immediately cease and all questions relating to
the liquidation of the assets of the Program, including the
possibility of a refund on some fair basis to the contribu-
tors, will depend on the circumstances then existing and
will be resolved by the Committees in their sole discretion.

Consistent with this resolution, in July 1986, the Respondent
amended the “Monthly Dues” provisions in article X, section
7(a) of its bylaws to provide that “[m]embers working under
the terms of the Inside Construction Agreement shall pay addi-
tional 3.5% of gross wages.” In 1992, however, the Respondent
amended and expanded this provision to read as follows, with
emphasis on changes from the July 1986 bylaw language:

Members working under the terms of the Inside Construction
Agreement shall pay additional working dues of 3.5% of
gross wages to fund the Local Union 48 Electrical Advance-
ment Program. Said Fund shall be separate from the General
Fund but shall be audited at the same time and in the same
manner as prescribed under Article XI. No other moneys shall
be transferred from the General Fund to the EIAP without
prior approval of the International President.

As previously noted, it was this latter bylaw language that gov-
erned when the Respondent, invoking rights under the union-
security clause, used Mulcahy’s job with Kingston as a lever to
collect from Mulcahy the MRP dues that he had accrued while
working previously for Excalibur.
Consistent with the quoted bylaw provision and the underly-
ing membership Resolution, the Respondent at all material
times has placed MRP dues in a separate bank account from the
account (or accounts) in which it maintains its “General
Fund[s].” However, for purposes of its required annual “LM-2”
report to the United States Department of Labor under the Lan-
drum-Griffin Act, the Respondent does not segregate MRP
dues from other “dues”-receipts, but rather includes them in a
single total of “dues” received during the reporting period.
In addition, although the Respondent’s bylaws prohibit
“transfer” of moneys in the general fund to the MRP fund,
nothing in the bylaws (nor in the enabling membership Resolu-
tion) prohibits the transfer of moneys from the MRP fund into
the general fund, nor the use of MRP moneys to support activi-
ties of the Respondent that do not involve subsidy payments to
employers. In fact, as previously noted, the membership Reso-
lution broadly authorized the “creat[ion] and [fund[ing] of a
program” wherein the Respondent’s “money . . . will be used
for the exclusive purpose of promoting the organized electrical
construction industry . . . by such means as wage supplements
on certain jobs . . . advertising, educational programs, produc-
tivity studies, and related activities.” And Bruce’s undisputed
testimony makes clear that the Respondent has construed this
charter quite broadly, as authorizing MRP funds to be used to
support the Respondent’s “organizing” activities in general.
Thus, Bruce testified that MRP funds have been used not just
for subsidies and subsidy-related bookkeeping, administration,
and “overhead” costs, but also to pay “the “salaries of the [Re-
spondent’s] three [full-time] organizers.” In addition, Bruce
testified that MRP funds are used for such organizing purposes
as supporting employees working on the Respondent’s behalf
in various “salting” campaigns.54
V. ANALYSES, CONCLUSIONS, ORDER
A. General Principles
Under established interpretations of the dovetailing provi-
sions of Sections 8(a)(3) and 8(b)(2), when a union and an em-
ployer are parties to a lawful union-security agreement (i.e., an
agreement requiring as a condition of employment that em-
ployees become or remain “members” of the union), and when
“membership” in the union entails a duty to pay “periodic dues
and initiation fees,” the union may lawfully demand that the
employer discharge an employee who has failed to tender such
dues or fees to the union after receiving notice and opportunity
to cure the delinquency.55 It is equally settled, however, that
when a union imposes charges or “assessments” other than
“periodic dues and initiation fees” on its members or other
employees who may be covered by a union-security agreement,
any such other charge, “even if levied legitimately, must be
collected without impact on employment rights or tenure.”56
Plainly, therefore, the pivotal issue in this case is whether
MRP dues qualify as “periodic dues. . . uniformly required”
within the meaning of Sections 8(a)(3) and 8(b)(2). If they do,
then the Respondent’s actions against Mulcahy while employed
by Kingston in June-July 1995 were legally innocuous. If they
don’t, then it must be found that the same actions against Mul-
cahy were unlawful.57
B. “Periodic Dues” vs. “Assessments”: Confusions and Con-
tradictions in the Caselaw
As noted, when a union imposes a requirement of member-
ship that includes a duty to pay levies that cannot be catego-
rized as “periodic dues . . . uniformly required” under the
NLRA, the union cannot lawfully invoke rights under an oth-
erwise valid union-security clause to coerce employees
(whether or not they are “members” of the union) into paying
such levies (or “assessments”—the conclusionary term the
Board usually reserves for any levies that it has already found
do not qualify as “periodic dues”).

54 According to Bruce, MRP funds were used to support, inter alia,
the Respondent’s salting campaign that became the subject of Tualatin
Electric, 312 NLRB 129 (1993).
55 See, e.g., Green Team of San Jose, 320 NLRB 999, 1004–1005
(1996).
56 Operating Engineers Local 542C (Ransome Lift), 303 NLRB
1001, 1003 (1991), citing Associated Fur Mfrs., 280 NLRB 922 (1986).
57 Moreover, even if, contrary to my judgment, it were determined
that the Board has jurisdiction to adjudicate the other counts in the
complaint attacking the Respondent’s actions against employees of
“other” employers in the period after July 12, 1995, it remains clear that
the merits of those alleged violations would likewise hinge on the ques-
tion whether MRP dues properly qualify as “periodic dues . . . uni-
formly required.” The only difference in such event might be that the
analysis under Detroit Mailers could be complicated by the “public-
policy” implications of the 1991 WAB decision—an issue I have found
unnecessary to decide because of my dismissal of the pertinent counts
on jurisdictional grounds, and in any case an issue that the Board is
better-suited to decide in the first instance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1516
How can you tell whether the disputed levy belongs in the
pigeonhole for “periodic dues” rather than the slot for “assess-
ments?” The answer to this taxonomic question is fairly simple
when the levy is clearly a “one-time,” or “temporary” charge,
for such levies necessarily lack the threshold statutory require-
ment of “periodicity,” and they are therefore mere “assess-
ments.” 58 Indeed, in such cases, it doesn’t matter whether the
union (or the Board) prefers to call the disputed amounts
“dues,” “assessments,” or something else; the important dis-
qualifying feature is that such levies do not call for “periodic”
payment. As I discuss next, however, the answer is less easy to
discern from the cases when the disputed levy apparently satis-
fies the threshold requirement of periodicity; for it is precisely
in those cases that “Board law,” is, indeed, “muddled” by a
hodgepodge of approaches which have in common only that
they involve inquiry, to one degree or another, into the “pur-
pose” for the disputed levy, even while being inconsistent as to
exactly which purposes will or will not qualify the periodic
levy as “periodic dues.”
The General Counsel states on brief, with substantial justifi-
cation in the caselaw, that “current Board law on this issue
finds its genesis” in distinctions originally posited by the Third
Circuit in NLRB v. Food Fair Stores, 307 F.2d 3, 11 (1962), as
follows (emphasis added):

It is clear that the term “periodic dues” in the usual and ordi-
nary sense means the regular payments imposed for the bene-
fits to be derived from membership to be made at fixed inter-
vals for the maintenance of the organization. An assessment,
on the other hand, is a charge levied on each member in the
nature of a tax or some other burden for a special purpose, not
having the character of being susceptible of anticipation as a
regularly recurring obligation as in the case of “periodic
dues.”

These “distinctions” may be vulnerable to attack at the thresh-
old as involving a certain definitional circularity. They are de-
batable on several other levels, as well. First, they appear to
presuppose that there “clear[ly]” exists a “usual and ordinary
sense” about what “periodic dues” means. This presupposition
may be illusory: The expression is hardly one that is part of the
“usual and ordinary” phraseology of the union movement or of
the unionized workplace; rather the phrase appears to be strictly
a creature of Congress itself. 59 Much less is it obvious that
Congress shared the Circuit’s belief about the “usual and ordi-

58 See, e.g., Green Team of San Jose, supra, 320 NLRB at 1005
(one-time death and illness assessment); Teamsters Local 439 (Shippers
Imperial), 281 NLRB 255, 258 (1986) (one-time charge for union
building fund); and Plumbers Local 81 (Morrison Construction Co.),
237 NLRB 207, 210 (1978) (one-time levy for “emergency” needs in
anticipated strike).
59 In more than 30 years of experience in administering the NLRA at
the ground level, I can’t recall ever seeing a union bylaw or a provision
in a collective-bargaining agreement that refers to “periodic dues”
(except, possibly, in the context of parroting the statutory language
itself). Nor can I recall ever hearing anyone who lives in a “union”
milieu (a union representative, say, or an employee represented by a
union, or an employer who has union dealings) using the expression
periodic dues as part of his or her “usual or ordinary” speech.
nary” meaning, if any, of the expression periodic dues. Equally
debatable is any supposition that the underlying taxonomic
question can be helpfully resolved by reference to what Con-
gress knew or may have assumed about the “purpose” behind
the longstanding practice followed by unions of collecting
“dues” at regular intervals from their members.60 Nevertheless,
the Board embraced the Third Circuit’s distinctions in Team-
sters Local 695, supra, and did not expressly or implicitly dis-
avow them in Detroit Mailers, supra, nor in any later case that I
can discover. Accordingly, these distinctions must inform my
further analysis.
The Third Circuit’s distinctions in Food Fair certainly imply
that a lack of periodicity will alone doom the purported “dues”
amount to consignment to the category of a mere “assessment.”
However, the passage as a whole (and without the emphasis
that I placed on certain phrases, supra) does not obviously im-
ply the validity of a quite different proposition—that a “special
purpose” for the disputed levy will alone cause it to be treated
in law as an “assessment,” even if it is due and owing on a “pe-
riodic” basis. (The circuit’s reference to a “special purpose”
does not stand alone, but is itself modified by an appositional
clause “. . . a special purpose, not having the character of being
susceptible of anticipation as a regularly recurring obliga-
tion[.]”) Nevertheless, in Teamsters Local 959, the Board,
while adopting the Third Circuit’s distinctions, seems to have
applied just such an interpretive gloss to them by implicitly
holding that the inquiry ends once it is found that the disputed
levy has a “special purpose”—meaning, strictly, a purpose
other than maintaining the union in its “capacity as a collective-
bargaining agent.” Indeed, as I discuss below, before reaching
its conclusion that the “working dues” there in question were
not “periodic dues” under the NLRA, the Board seems to have
coated the distinctions in Food Fair with at least two layers of
gloss.
In Teamsters Local 959, the Board was confronted with a un-
ion which, after authorization from its membership, had “incor-
porated” into its “general dues structure” a 10-cent-per-hour
increase in the members’ “working dues.”61 The additional 10
cents was to be used to finance a credit union fund and a build-
ing fund. The Board found that the 10-cent portion of the work-
ing dues were “not ‘periodic dues’ as that term is used in the
proviso to Section 8(a)(3) of the Act[,]” and the Board thus
concluded that when the union “threat[ened] to enforce the
60 Before natural scientists and ordinary people were as familiar with
the variety of forms of life in the world as they are now, the “usual and
ordinary understanding” among both groups may well have been that
the bilateral “wings” used by members of the avian order—birds—
existed for the “purpose” of enabling flight through the air. However,
when Antarctic explorers brought back the first specimens of penguins,
whose bilateral wings are useless for flying through the air, but have a
different, or “special” purpose—propelling and controlling the animal’s
maneuvers under water—this did not cause the scientists nor more
ordinary people to deny the “birdness” of penguins; much less did
members of either group find it necessary to come up with a word other
than wings to describe the penguins’ bilateral appendages. Rather, they
were simply forced to acknowledge that, despite the hitherto-presumed
“usual and ordinary” purpose for wings, penguins were, taxonomically
speaking, still birds, and their wings were, indeed, still wings.
61 167 NLRB at 1043.
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1517
unlawful [sic] provisions by requesting the discharge of em-
ployees refusing to pay them [sic], such threats violated Section
8(b)(1)(A).”62 In reaching this conclusion, the Board, although
quoting the above passage from Food Fair in full, used italics
to emphasize the same phrases that I have likewise emphasized,
supra. Then, implicitly treating the emphasized phrases as hav-
ing independent significance, the Board found that,

[m]onies collected for a credit union or building fund,
even if regularly recurring, as here, are obviously not ‘for
the maintenance of’ the Respondent, but are for a ‘special
purpose’ and could be terminated without affecting the
continued existence of the Respondent as the bargaining
representative.”[63]

Moreover, in a separate but clearly-related passage, the Board
explicitly narrowed the Third Circuit’s conception of “periodic
dues” as being “for the maintenance of the organization” by
holding that “it is manifest that dues that do not contribute, and
that are not intended to contribute, to the cost of operation of a
union in its capacity as a collective-bargaining agent cannot be
justified as necessary for the elimination of ‘free riders’. . . and
they therefore do not fall within the proviso to Section 8(a)(3)
of the Act.”64 Clearly, therefore, the Board’s discussion in
Teamsters Local 959 introduced into the dues-versus-
assessments analysis the notion that even if a union’s “dues
structure” requires members to make “regularly recurring”
payments of specified amounts, these “periodic dues” will not
qualify as “periodic dues” within the intention of the NLRA if
they have a “special purpose”—specifically, a “purpose” other
than “contributing to the cost of operation of a union in its ca-
pacity as a collective-bargaining agent.”
The proposition engrafted onto the analysis by the Board in
Teamsters Local 959—that periodically-required “dues” pay-
ments for a “special,” nonbargaining “purpose” are not “peri-
odic dues” within the contemplation of Congress—is itself a
debatable one. Thus, the proposition appears to assume that
when Congress amended the Act to include references to “peri-
odic dues,” it supposed that unions which required “periodic
dues” from their members had only one legitimate “purpose”
for such dues—to support the union in its capacity as the mem-
bers’ collective-bargaining agent—and, therefore, any “dues”
collected periodically from members for any other purpose
would be outside the customary and legitimate purposes for
which unions collected “periodic dues,” and could not lawfully
be collected under a union-security clause. And as I discuss
next, similar objections seem to have animated the Board’s
later decision in Detroit Mailers, where the Board clearly re-
jected not just the lead proposition itself, but the assumptions
that apparently informed it.
In Detroit Mailers, the Board was confronted with a union
whose members were required by the constitution of the un-
ion’s parent body, the ITU, to pay what the Board called “regu-
lar dues” that included two special-purpose amounts that were
in dispute in the case because the union had invoked the union-
62 Id. at 1045.
63 Ibid (emphasis added).
64 Id. at 1045 (emphasis added).
security clause against members who refused to tender them:
(1) an amount calculated at “2-1/2 percent of gross earnings,”
used “for the establishment and maintenance of an old age pen-
sion and mortuary fund,” (actually “separate but related” funds
that the ITU had separately “administered” for more than 50
years); and (2) a “monthly per capita tax of $1 [a disputed] half
(50 cents) of which goes to a union printers home fund.”65 The
Board further found, (a) that “[m]oneys from the 2-1/2 percent
levy are allocated to the mortuary fund so that it is maintained
at a level of $1 million and all additional amounts go to the
pension fund”; (b) “the union printers home fund is adminis-
tered by a. . . corporation and is apparently financed solely out
of the portion of the per capita tax allocated to it”; and (c) that
“moneys from the pension and mortuary funds . . . are available
to the ITU for emergencies,” including amounts of up to $1
million that may be “transfer[red] . . . to one or more of the
general, operational, or strike funds of the ITU ‘to maintain the
integrity of this organization[,]’” which transfers the ITU “re-
gard[s], internally, as noninterest-bearing loans,” and which,
“as a matter of practice, are usually repaid to the funds from
which the transfers originated.”66 The Board noted that the
“Trial Examiner,” relying on Teamsters Local 959, “concluded
that the disputed portions of the dues and per capita tax are not
‘periodic dues’ which may be required under the union-security
agreement [because] . . . the pension and mortuary funds and
the printers home funds are special purpose funds which are not
related to the cost of collective bargaining[,]” and, therefore,
“that making the payment of these levies a condition of em-
ployment violated Section 8(b)(2) and 1(A) of the Act.” How-
ever, the Board (Member Jenkins dissenting) did “not agree”
with the Trial Examiner’s analysis and dismissed the pertinent
allegations of the complaint.
The nature of the Board’s disagreement with the Trial Exam-
iner’s analysis under Teamsters Local 959 is instructive. This is
what the Board said [emphasis added; footnotes and citations
omitted]:

Section 8(a)(3) authorizes a union to require all employees
whom it represents and who are covered by a valid union-
security agreement to pay all “periodic dues. . . uniformly re-
quired as a condition of acquiring or retaining [union] mem-
bership.” Neither on its face nor in the congressional purpose
behind this provision can any warrant be found for making
any distinction here between dues which may be allocated for
collective-bargaining purposes and those earmarked for insti-
tutional expenses of the union. As recognized by the Supreme
Court in the Schermerhorn case, “dues collected from mem-
bers may be used for a ‘variety of purposes, in addition to
meeting the union’s costs of collective bargaining.’ Unions
‘rather typically’ use their membership dues ‘to do those
things which the members authorized the union to do in their
interest and on their behalf.’” By virtue of Section 8(a)(3),
such dues may be required from an employee under a union-
security contract so long as they are periodic and uniformly
required and are not devoted to a purpose which would make
65 192 NLRB at 951.
66 Ibid.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1518
their mandatory extraction otherwise inimical to public pol-
icy.[67]
I note that the Board did not disagree with the Trial Examiner’s
characterization of the funds for which the disputed dues
amounts were earmarked as “special purpose funds.” And
clearly, by all yardsticks applied in this legal area so far, those
funds (like the MRP fund here) were special-purpose funds—
“administered” separately by the ITU from its “general, opera-
tional, or strike funds”; maintained and accounted for sepa-
rately from those other funds, and with stated limitations (how-
ever elastic or indefinite) on their use and their “transferabil-
ity.” Neither did the Board find it necessary to construe the
disputed dues as being required to maintain the union’s ability
to function in its collective-bargaining role. Rather—and sig-
nificantly—the Board clearly held that, despite the special pur-
poses for the disputed dues amounts, they still qualified as “pe-
riodic dues . . . uniformly required” under the NLRA, and,
where there was no basis for finding that their purpose was
“otherwise inimical to public policy,” they were lawfully en-
forceable under the terms of the union-security agreement.
On brief, the General Counsel states accurately that “the
Board has never reconciled the approaches taken in Teamsters
Local 959 and Detroit Mailers Union.”68 However, in the more
recent Seattle Times case,69 which I think the General Counsel
has misconstrued in a pertinent respect, the Board appears to
have pointedly disavowed reliance on any “special-purpose”
rationale, and to have instead relied primarily on the lack of
“periodicity” to the “membership dues” there in question.70
Moreover, the reason for the Board’s failure thus far to “recon-
cile” these “approaches” may be that they are “hopelessly ir-
reconcilable,” as noted by Judge Shapiro in Seattle Times,71 by
the D.C. Circuit in its own appellate review and remand of that
case to the Board for a “coherent reconciliation of its own

67 192 NLRB at 952.
68 G.C. Br. at p. 20. Moreover, the General Counsel takes this state-
ment one step further when noting elsewhere (id. at 22) that “these two
tests are not reconcilable,” and “because” of this, “it is the General
Counsel’s position that the Board should adopt [Detroit Mailers] as the
sole test . . . and . . . should abandon the test enunciated in Teamsters
Local 959.”
69 Pacific Northwest Newspaper Guild Local 82 (Seattle Times), 289
NLRB 902 (1988).
70 With respect to the Seattle Times holding, the General Counsel
states on brief (p. 20, fn. 4) that the “Board found [a] strike defense
fund to be an assessment where contributions were used for specific
purposes (financing strike and lockout expenses). . . .” In fact, although
Judge Shapiro included such “special-purpose” reasoning in his ration-
ale (289 NLRB at 911-912), the Board “agreed with the judge’s finding
[on other grounds] that the increased portion of the membership dues
here did not constitute ‘periodic dues[,]’” but found it “unnecessary to
pass on the judge’s discussion of the standard to be applied in determin-
ing whether the purposes for which dues payments are expended will
cause such payments to fall outside the definition of ‘periodic dues[.]”
Id. at 902, fn.1 (my emphasis). Seemingly, therefore, it was the lack of
“periodicity” to the disputed “membership dues” that became the
Board’s rationale, and the basis for its holding in that case. (And see the
subsequent history of Seattle Times, discussed below.)
71 289 NLRB at 911,fn. 16.
precedent,”72 and, implicitly, by the Supreme Court itself,
which, in Beck, characterized Detroit Mailers as having “repu-
diated” the rationale of Teamsters Local 959.73
C. Which “Test” Applies to this Case?
As I noted at the outset, the General Counsel argues on brief
that “the Board should abandon” the tests in Teamsters Local
959 and “should adopt” instead as the “sole test” the more lib-
eral standards stated in Detroit Mailers, but fails to explicate
why the Board should prefer the latter over the former, and
avoids entirely any discussion of how the Supreme Court’s
teachings in Beck might bear on the same question. By contrast,
the Respondent’s counsel, who agrees with the General Coun-
sel that Detroit Mailers should control, at least suggests a rea-
son for this—that Detroit Mailers “overrule[d] sub silentio that
part of Teamsters Local 959 which held that ‘periodic dues’
could only be used for collective bargaining purposes.”74
Moreover, unlike the General Counsel, the Respondent has
confronted the question of Beck’s possible implications, and
has argued plausibly (and with indirect support from the Board
in Big V Supermarkets, supra), that Beck’s teachings do not
apply where, as here, the facts do not present questions as to the
rights of “non-members” who may “object” to paying MRP
dues.
It is presumably appropriate for the General Counsel to ad-
vocate to the Board which of these authorities “should” be fol-
lowed, if either of them, and even to argue (although he has not
done so here) that the earlier authority deserves greater respect
than the later one. However, the Board’s administrative law
judges perform an adjudicative function, not an advocative
function, and in our adjudicative role we are not free to pick
and choose among conflicting holdings based simply on which
holding strikes us as the wisest one. Rather, we are bound by
the Board’s general admonition to its judges in Waco, Inc., 273
NLRB 746, 749, fn. 14 (1984), as follows:

We emphasize that it is a judge’s duty to apply established
Board precedent which the Supreme Court has not reversed.
Iowa Beef Packers, 144 NLRB 615, 616 (1963). It is for the
Board, not the judge, to determine whether that precedent
should be varied.[75]

Here, I am persuaded that Detroit Mailers is the “established
Board precedent” that I must apply, without regard to the Gen-
72 Pacific Northwest Newspaper Guild v. NLRB, supra, 877 F.2d at
998, 1000-1002. In this regard, it appears that the Board found it un-
necessary to respond to the Circuit Court’s remanding order, for coun-
sel for the General Counsel has represented on brief (p. 20, fn. 4) that,
in the aftermath of the D.C. Circuit’s remand, “the case . . . settled.”
And see R. Exh. 11, p. 5, fn. 8, in which the Office of the General
Counsel said the same thing in a published Advice memorandum issued
on July 8, 1993, in another case, where, strikingly, the General Counsel
concluded that another local of the IBEW did not violate Sec.
8(b)(1)(A) or (2) when it relied on a member’s checkoff authorization
to collect from his wages certain portions of its “operating dues” that
were earmarked for the local’s job-targeting program.
73 487 U.S. at 752–753, fn. 7.
74 R. Br. at p.20.
75 See, e.g., Architectural Glass & Metal Co., 316 NLRB 789, 790
(1995).
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1519
eral Counsel’s views as to its preferability. Thus, in essential
agreement with the Respondent, I find that, because the Board’s
rationale for dismissing the complaint in Detroit Mailers is
irreconcilable with the rationale of Teamsters Local 959, De-
troit Mailers must be understood as having effectively “over-
ruled” Teamsters Local 959, even though the Detroit Mailers
majority did not say so explicitly, but instead merely “distin-
guished” the prior case on its facts. Moreover, I see nothing in
the Board’s decision in Big V Supermarkets, supra, that clearly
suggests that the Board would disavow the Detroit Mailers
rationale in the aftermath of Beck. On the contrary, in its “on
the one hand . . . on the other hand” footnote in that case, the
Board appears to have said at least this much: (a) Detroit Mail-
ers states the governing Board law, subject only to the possible
impact of Beck; and (b) Beck did not necessarily “reverse” the
rationale of Detroit Mailers insofar as it may apply, as in this
case, to a union member’s rights or duties when it comes to the
payment of special-purpose dues that are periodic and uni-
formly required. And again, where the Board itself has not yet
conclusively assessed Beck’s impact on the “difficult question,”
I do not feel free to weigh-in with any views I might have on
the matter; rather, I am bound to apply Detroit Mailers unless
or until the Board itself “determine[s] to “var[y]” from that
“precedent.” 76
Accordingly, with these understandings as my guide, I will
proceed next to examine the General Counsel’s further conten-
tion that MRP dues do not qualify even under Detroit Mailers’
more liberal standards as “periodic dues . . . uniformly re-
quired.”
D. Application of Detroit Mailers to Mulcahy’s Treatment in
June-July 1995
Even though the General Counsel urges the Board to “aban-
don” the test used in Teamsters Local 695, and to “adopt” in-
stead as the “sole test” the one declared in Detroit Mailers, the
General Counsel inexplicably devotes considerable attention on
brief to those features of this case that might invite a finding
under Teamsters Local 695 that MRP dues are “special-
purpose” dues.77 These features are too obvious to require reca-
pitulation. MRP dues clearly may be characterized as special-
purpose dues; however, the important point is that Detroit
Mailers treats such a characterization as irrelevant, in itself, to
the question of the union’s right to collect such dues under a
union-security clause. Rather, as thoroughly discussed previ-
ously, Detroit Mailers held that even special-purpose dues that
are both “periodic” and “uniformly required” may lawfully be

76 Neither, in the current unsettled state of Board law as to the impact
of Beck on these questions, may I rely on dicta appearing in the D.C.
Circuit’s decision in Reich, supra, suggesting that, under Beck, dues
amounts collected by unions to fund JTPs cannot qualify under the
NLRA as “periodic dues . . . uniformly required.” 40 F.3d at 1281–
1282. And in this regard, I note that the Board’s admonition to its
judges in Waco, Inc. supra, arose under circumstances where the Board
found that “the judge improperly relied on courts of appeals decisions
instead of initially considering relevant Board decisions on the issues
presented.” 273 NLRB at 749 fn. 14.
77 See G.C. Br. at p. 20, second full paragraph, to p. 22, preceding
first full paragraph.
collected under a union-security clause unless their “mandatory
extraction” will be “otherwise inimical to public policy.”
Moreover, when the General Counsel finally turns to the
question of the applicability of Detroit Mailers to the facts of
this case, the prosecution devotes all but a single brief passage
(identified below) to her “primary” theory—that MRP dues are
“inimical to public policy” (because the WAB said in its 1991
decision that the deduction of such dues by employers on
Davis-Bacon jobs violates the “without subsequent deduction
or rebate” proscriptions of the Davis-Bacon Act, and is not
saved by DOL regulations that permit the “deduction” of “regu-
lar union . . . membership dues.”) However, for reasons I have
noted previously, the legality of Mulcahy’s treatment at the
Respondent’s hands when employed by Kingston in June-July
1995 is the only question the Board was shown to have jurisdic-
tion to adjudicate, and the Respondent’s treatment of Mulcahy
in that instance clearly does not implicate any such Davis-
Bacon concerns. (Why? Because the Respondent’s actions
against Mulcahy in that instance were based on his MRP dues-
delinquencies accrued while working earlier for Excalibur on a
job that was not covered by the Davis-Bacon Act.) Indeed, the
General Counsel implicitly acknowledges this when arguing
(under Teamsters Local 695) that MRP dues are for a “special
purpose,” and are therefore “assessments,” and that “this ra-
tionale would apply to such jobs as the Excalibur job worked
by Mulcahy which was a state rather than a Federal Davis-
Bacon job, and to all privately funded jobs.”78
There is an obvious objection to the latter contention: The
General Counsel has elsewhere urged the Board to “abandon”
the very “rationale” invoked in this passage (i.e., the rationale
of Teamsters Local 695) when it comes to the collection of
MRP dues-delinquencies arising on jobs not covered by the
Davis-Bacon Act. And it is therefore apparent that the prosecu-
tion is either equivocating when it comes to identifying the
alleged vice in the Respondent’s treatment of Mulcahy in June-
July 1995, or is simply wasting its breath by emphasizing at
length the “special-purpose” character of MRP dues under cir-
cumstances where this will not matter to the analysis under
Detroit Mailers, whose “test” the General Counsel elsewhere
urges the Board to “adopt” as its “sole test.”
Once again: Exactly why does the General Counsel find un-
der Detroit Mailers that the Respondent’s treatment of Mulcahy
in June-July 1995 was unlawful? Remarkably, even though
Mulcahy’s treatment by the Respondent when employed in that
period by Kingston was the trigger for his original charge, and
became the target of two of the four substantive counts in the
complaint that issued 13 months later, and even though the
particulars of Mulcahy’s treatment in that instance were liti-
gated far more closely than any other matters vaguely alleged
in the complaint, you still have to squint to locate the answer to
this question among the many other arguments in the prosecu-
tion brief that have nothing to do with it. The answer appears as
almost a throwaway line preceding the General Counsel’s more
lengthy exposition of her “primary theory” under Detroit Mail-
ers (“inimical to public policy” in the light of the 1991 WAB
decision). The answer appears in a passage that begins with this
78 Id. at 22, top of page.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1520
statement: “In applying the Detroit Mailers Union test it is
undisputed that MRP moneys are periodic and uniformly re-
quired of all members working under the Inside Agreement.”
Then, after noting that MRP dues are not required of certain
other classes of the Respondent’s members (i.e., those who
work in, inter alia, “the smaller specialty bargaining units such
as marine, sound and electronic techs”), counsel for the General
Counsel finally addresses the pending question more or less
head-on. Here is what she says (emphasis added):

It is . . . asserted that because this 3.5% of gross wages, mar-
ket recovery amount is not uniformly required of all members
of Local 48, that it is, therefore, an assessment rather than
dues. Under that theory Local 48 violates Section 8(b)(1)(A)
and (2) when it attempts to collect MRP money under threat
of discharge for hours worked on any job.

Obviously, the prosecution is on firm statutory ground, and
is well supported by the caselaw (including Detroit Mailers) to
the extent it argues that union “dues” must be both “periodic”
and “uniformly required” before a union may seek to collect
them “under the threat of discharge” pursuant to a union-
security clause. And what the General Counsel appears to be
saying, finally, is that MRP dues, although “undisputed[ly]
periodic and uniformly required of all members working under
the Inside Agreement,” are not “required” of all of the persons
whom the Respondent admits to “membership.” In short, the
General Counsel is saying in the end that the problem with
MRP dues under the NLRA is not their lack of periodicity, but
the fact that they are not “uniformly required.”
This particular theory was not even hinted at in the com-
plaint nor in counsel for the General Counsel’s opening state-
ment at trial, when she outlined the General Counsel’s prose-
cuting theories in terms that are otherwise roughly consistent
with her arguments on brief. That aside, I find it striking that
the General Counsel has cited no Board precedent in support of
this theory, but apparently relies only on certain dicta in the
Ninth Circuit’s Brock decision, supra—and then the General
Counsel merely mentions these dicta incidentally, in the con-
text of a separate discussion of the public-policy implications of
the 1991 WAB decision under the Davis-Bacon Act.79 In fact,

79 Id. at 17. Here, the General Counsel states that the Ninth Circuit’s
Brock decision held, inter alia, that the 2-percent market recovery dues
required of “travelers” in that case do “not qualify as ‘membership
dues’ within the meaning of 29 C.F.R. § 3.5(i) [of DOL’s administra-
tive regulations].” And she notes, as well, that because only “members
working under Local 357’s ‘inside’ . . . agreement were required to pay
the 2% assessment in addition to their working dues,” the circuit also
“found that the assessment was not ‘uniformly required,’ and thus the
assessment did not constitute ‘membership dues’ within the meaning of
29 C.F.R. Section 3.5(I).” I think the General Counsel is here referring
to a passage near the end of sec. II, 3, of the Brock opinion, where the
Ninth Circuit actually was discussing the D.C. Circuit’s “rejection” in
Reich, supra, of “union contentions that interpretations of the term
‘periodic dues,’ taken from the [NLRA] context, are relevant in deter-
mining whether JTP assessments are ‘membership dues’ under Davis-
Bacon Act regulations.” And it is true that, in the course of agreeing
with the D.C. Circuit that NLRA interpretations are not “relevant” to
the matters in dispute under the Davis-Bacon Act, the 9th Circuit never-
theless gratuitously opined that “the JTP assessments . . . are not ‘uni-
however, as noted by the D.C. Circuit in its review and remand
of Seattle Times, supra, the Board does not appear to have
found it disqualifying that a union’s “dues structure” may be
“variable” in its impact on different classes of “members,” i.e.,
where dues amounts imposed on members will vary according
to their earnings and whether or not they are “working at the
trade,” and in which, as herein, some members are exempted
from the disputed dues amount because their particular jobs fall
outside the particular “trade” in which most of the members
customarily work.80
Here, the Respondent’s dues structure is “variable” in the
same (innocuous) sense, but MRP dues are no less “periodic
dues . . . uniformly required” because of that variability. The
dues amounts will vary depending not only on each member’s
particular employment status and rate of pay, but on whether or
not the member is working within the Respondent’s territorial
jurisdiction under the Inside Agreement. Indeed, we can prop-
erly notice that most unions’ dues structures are likewise “vari-
able,” and that the dues amounts that most unions require of
their members will often likewise vary depending on the par-
ticular labor agreement “under” which a given member happens
to be working during any given period of dues-accounting.
Therefore, if the General Counsel’s theory in this instance is
taken seriously, there will be few, if any, unions whose “peri-
odic dues” will qualify as “uniformly required” under the
NLRA, and thus few, if any, unions who may lawfully exercise
the rights under a union-security agreement that Congress ex-
pressly conferred in the respective provisos to Sections 8(a)(3)
and 8(b)(2). I cannot so lightly impute to Congress such an
intended result, much less could I embrace such a result in the
absence of Board authority that clearly supports this theory, and
the General Counsel has cited none. Rather, lacking Board
authority to the contrary, I would interpret the statutory phrase
“uniformly required” as calling for the equal treatment of
members who are similarly situated in terms of their employ-
ment status, their rate of pay, and the particular labor agreement
under which they may be working in any given period—i.e., as
a guard against the arbitrary or invidious imposition of “dues”
on only certain members without regard to such considerations
of equality of status. Thus, where the nominal lack of “uniform-
ity” in the Respondent’s application of its MRP dues require-
ment traces simply from the fact that some of the Respondent’s
members are exempt from the MRP dues requirement when
they don’t work under the Inside Agreement—and necessarily

formly required’ [under NLRA Section 8(a)(3)]” because “only those
IBEW workers . . . working under an ‘inside’ . . . agreement are re-
quired to pay the two percent assessment in addition to their Working
Dues.” 68 F.3d at 1203.
80 See discussion in Pacific Northwest Newspaper Guild v. NLRB,
supra, 877 F.2d at 1001–1002, especially the circuit’s discussion of
Local 409, Stage Employees IATSE Local 409 (RCA Service Co.), 140
NLRB 759 (1963), where IATSE members were “considered to be
‘working at the trade’ [and thus subject to the disputed 1.5 percent
working-dues increment] if they were engaged in work that fell within
the ‘work jurisdiction’ of the union [such as] “projectionists, operators
or sound technicians,]” but that “a member employed solely as a
checker in a supermarket was not required to pay the percentage levy.”
877 F.2d at 1002 fn. 5, citing 140 NLRB at 761.
ELECTRICAL WORKERS LOCAL 48 (KINGSTON CONSTRUCTORS) 1521
don’t derive any benefit from the operation of the Market Re-
covery Program when not working under the Inside Agree-
ment—I judge that this phenomenon does not disqualify MRP
dues as “periodic dues . . . uniformly required.” If the Ninth
Circuit has opined to the contrary in Brock, it did so in a case
that was decided strictly in terms of that Circuit’s understand-
ing of the Davis-Bacon Act and the related regulations of the
Department of Labor; therefore, its opinion as to the meaning
of the expression uniformly required under the NLRA is classic
obiter dicta even within the framework of the Brock decision.
Neither can such dicta control my analysis, especially where
the Board itself has never, so far as I can tell, interpreted the
phrase “uniformly required” in the manner suggested in Brock,
nor in the manner now urged by the General Counsel.
In sum, I find, applying Detroit Mailers, that the MRP dues
accrued by Mulcahy on the Excalibur job were, indeed, “peri-
odic dues . . . uniformly required” under the NLRA. It necessar-
ily follows as a matter of law that when the Respondent, in
June-July 1995, invoked rights under the union-security clause
of the Inside Agreement to have Kingston dismiss Mulcahy, its
“threatening to cause and causing” Kingston to fire Mulcahy
violated neither Section 8(b)(2) nor Section 8(b)(1)(A).
[Recommended Order for dismissal omitted from publica-
tion.]