Four Seasons Solar Products, Corp.

National Labor Relations Board - Board Decisions

Sep 15, 2000

332 N.L.R.B. 67 (N.L.R.B. 2000)

FOUR SEASONS SOLAR PRODUCTS CORP. 67
Four Seasons Solar Products Corporation and Local
137, Amalgamated Workers Union of America,
Petitioner. Case 29–RC–9061
September 15, 2000
DECISION ON REVIEW AND ORDER DISMISSING
PETITION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On July 17, 1998, the Regional Director for Region 29
of the National Labor Relations Board issued a Decision
and Direction of Election in the above-referenced pro-
ceeding in which he found that the Petitioner was a labor
organization within the meaning of Section 2(5) of the
National Labor Relations Act. He also found that the
collective-bargaining agreement between the Employer
and the Intervenor1 did not constitute a bar to the instant
representation petition on several grounds. Specifically,
he found that the contract did not operate as a bar be-
cause it appeared to require employees to pay moneys
other than dues and initiation fees as a condition of em-
ployment; its union-security provision failed to provide
the requisite 30-day grace period for nonmember incum-
bent employees to join the Union as required under Sec-
tion 8(a)(3) of the Act; it granted superseniority to the
shop steward for all purposes, including layoff, rehire,
bidding, and job preference; it appeared to award certain
benefits to employees based upon their membership and
position in the Union; and its concurrent 45-day proba-
tionary and grace periods for new employees appeared to
go beyond the limited form of union security permitted
by Section 8(a)(3) of the Act.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Intervenor and the
Employer filed timely requests for review. By order
dated September 3, 1998, the Board granted review of
the Regional Director’s Decision solely with respect to
the bar quality of the existing contract as it raised sub-
stantial issues warranting review. The election was held
as scheduled on August 7, 1998, and the ballots were
impounded pending the Board’s Decision on Review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record in this
case, including the briefs,2 we find, contrary to the Re-
gional Director, that the contract operates to bar the rep-
resentation petition herein.

1 Highway and Local Motor Freight Drivers, Local Union No. 707,
affiliated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO.
2 International Brotherhood of Teamsters, AFL–CIO, filed an amicus
brief, which we have considered.
The Employer is engaged in the manufacture and sale
of sunrooms. The Employer and Intervenor have had a
collective-bargaining relationship for 18 years. This re-
lationship has been memorialized in a series of contracts.
The latest of these contracts, by its terms, was made and
entered into on August 12, 1995,3 was effective from
August 12, 1995, until August 11, 1998, but was not
signed by the Intervenor and the Employer until October
17 and 25, 1995, respectively.4 The instant petition,
which sought a unit of all production, maintenance, ship-
ping and receiving employees at the Employer’s Hol-
brook, New York facility was filed on June 19, 1998, 53
days prior to the expiration of the contract.
1. At the hearing, the Employer and the Intervenor
contended that inasmuch as the petition herein was filed
during the 60-day insulated period preceding the con-
tract’s expiration date, their contract barred a representa-
tion election in the unit concerned here. See Appala-
chian Shale Products Co., 121 NLRB 1160, 1164 (1958).
The Petitioner took the position, however, that the con-
tract did not operate as a bar because it unlawfully re-
quired the payment of assessments as a condition of em-
ployment.
The Regional Director, agreeing with the Petitioner’s
position, examined the various clauses of the union-
security provision and determined that a reasonable em-
ployee reading them together would conclude that the
contract required, as a condition of employment, the
payment of assessments.5 In reaching this conclusion,
3 The instant contract states in its preamble: “THIS AGREEMENT
made and entered into this 12th day of August, 1995 by [Four Seasons
Solar Products and Local 707, which hereby] agree to be bound by the
terms and provisions of this Agreement for the period August 12, 1995
to August 11, 1998.”
4 The signatures of the Intervenor’s president and secretary-treasurer
appear on the final page of the contract and are dated October 17, 1995.
The signature of Chris Esposito, the Employer’s president, is dated
October 25, 1995.
5 The agreement contained the following pertinent clauses:
Article III: UNION SECURITY
Section 1: Union Shop
a) Condition of Employment: It shall be a condition of em-
ployment that all employees of the Employer covered by
this Agreement who are members of the Union in good
standing and those who are not members on the effective
date of this Agreement, shall on the thirtieth (30th) day fol-
lowing the effective date of this Agreement, become and
remain members in good standing in the Union. It shall also
be a condition of employment that all employees covered by
this Agreement and hired on or after its effective date shall,
on the forty-fifth (45th) day following the beginning of such
employment, become and remain members in good standing
in the Union.
b) Failure to become a member: An employee who has
failed to acquire, or thereafter maintain, membership in the
Union as herein provided, shall be terminated seventy-two
(72) hours after his Employer has received written notice
332 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68
the Regional Director found that while Sections 1(b) and
3 might leave an employee with the initial impression
that the payment of dues and initiation fees would be
sufficient to retain his or her employment, considerable
ambiguity remained as to what actually constituted an
employee’s membership obligations under the contract.
He then determined that this ambiguity could only be
resolved by looking at the dues-checkoff clause, which
provides that the Employer will deduct, in addition to
dues and initiation fees, assessments, pursuant to written

from an authorized representative of the Local Union certi-
fying that membership has been, and is continuing to be of-
fered to such employee on the same basis as all other mem-
bers and, further, that the employee has had notice and op-
portunity to make dues or initiation fee payments.
Section 2: Hiring Additional Men and Probationary Period
The Employer shall notify the Union when new employees
are to be hired. The Union shall have the right to send ap-
plicants for the job or jobs and the Employer agrees to inter-
view such applicants and give the same interview considera-
tions to Union sent applicants as is given to applicants from
other sources. This provision shall not be deemed to require
the Employer to hire Union applicants or to preclude the
Employer from hiring employees from other sources. The
Employer reserves the right to finally pass on the qualifica-
tions and experience of all applicants for employment. Dur-
ing the probationary period of forty-five (45) days the em-
ployee may be discharged without further recourse, pro-
vided, that the Employer may not discharge or discipline for
the purpose of evading this Agreement or discriminating
against Union members. After the probationary period, the
employee shall be placed on the regular seniority list.
Section 3: New Employees–(Full Time)
The Employer shall immediately upon employment, notify
the shop steward, or the Union if there is no shop steward,
of the employment of any man, who under this Agreement
is required to be a member of the Union. Upon notice from
the Union that any employee, who, forty-six (46) days from
the date of first employment has failed to tender periodic
dues and initiation fees uniformly required as a condition of
acquiring and retaining membership, the Employer agrees to
terminate such employee after receipt of seventy-two (72)
hours written notice, excluding Saturdays, Sundays and
Holidays, from a properly authorized official of the Union,
certifying that membership has been and is continuing to be
offered to such employee on the same basis as all other
members and further that the employee has had notice and
opportunity to make all dues payments. This provision shall
be made and become effective as of such time as it may be
made and become effective under the provisions of the Na-
tional Labor Relations Act but not retroactively.
Section 4: Check-Off
The Employer agrees to deduct from any regular employees
covered by this Agreement, initiation fees, dues and uniform
assessments of the Local Union having jurisdiction over
such employees and agrees to remit to said Local Union all
such deductions prior to the end of the month for which the
deduction is made. Where laws require written authoriza-
tion by the employee, the same is to be furnished in the form
required. No deduction shall be made which is prohibited
by applicable law.
authorization “where laws require written authoriza-
tion.”6 Accordingly, as the contract appeared to him to
require the payment of assessments as a condition of
employment, the Regional Director, relying upon Santa
Fe Trail Transportation Co., 139 NLRB 1513 (1962),
ultimately concluded that the contract could not serve as
a bar to the petition herein.
Contrary to the Regional Director, we find that the
contract language regarding certain payments to the Un-
ion does not operate to remove the contract bar to the
instant petition, since the contract contains no express
requirement that an employee pay assessments as a con-
dition of employment. In Paragon Products Corp., 134
NLRB 662 (1961), the Board set out the three instances
where a contract will not bar the processing of a petition
because of an unlawful union-security provision:

[W]e now hold that only those contracts containing a
union-security provision which is clearly unlawful on
its face, or which has been found to be unlawful in an
unfair labor practice proceeding, may not bar a repre-
sentation petition. A clearly unlawful union-security
provision for this purpose is one which by its express
terms clearly and unequivocally goes beyond the lim-
ited form of union-security permitted by Section
8(a)(3) of the Act, and is therefore incapable of a lawful
interpretation.
Such unlawful provisions include (1) those which ex-
pressly and unambiguously require the employer to
give preference to union members (a) in hiring, (b) in
laying off, or (c) for purpose of seniority; (2) those
which specifically withhold from incumbent nonmem-
bers and/or new employees the statutory 30-day grace
period; and (3) those which expressly require as a con-
dition of continued employment the payment of sums of
money other than “periodic dues and initiation fees
uniformly required.’’

Id. at 666 (emphasis added). See also Gary Steel Supply
Co., 144 NLRB 470 (1963) (applying Paragon Products
rules to dues-checkoff provisions).
In Santa Fe, supra, 139 NLRB at 1514–1515, the
Board found that the union-security provision involved
was on its face unlawful and fell within the ban set forth
in Paragon Products on clauses which expressly require
as a condition of continued employment the payment of
sums of money other than “periodic dues and initiation
fees uniformly required.” In the instant case, the dues-
checkoff clause contains no statement that payment of
6 Under Sec. 302 of the Act, it is unlawful for an employer to deduct
membership dues from the wages of any employee unless the employee
has authorized such deductions in writing. See 29 U.S.C. § 302(c)(4).
FOUR SEASONS SOLAR PRODUCTS CORP. 69
“uniform assessments” is a condition of employment or
is even required. The union-security clauses that do con-
tain “condition of employment” language mention only
dues and initiation fees and require only that employees
“be and remain members of the Union in good stand-
ing.”7 Under these circumstances, we conclude that the
contract does not expressly require the payment of as-
sessments as a condition of employment and thus does
not fall within the ban set forth in Paragon Products.
Accordingly, Santa Fe is inapplicable to the instant
case.8
2. The Regional Director also found that the contract
forfeited its bar quality because it was retroactively
effective and thereby withheld from nonmember incum-
bent employees the 30-day grace period within which to
join the Union as guaranteed by Section 8(a)(3) of the
Act. The issue of the contract’s retroactivity and the
effect upon its bar quality status was raised sua sponte by
the hearing officer at the hearing. Although the Peti-
tioner took no position on the matter, the Intervenor, re-
lying on Federal-Mogul Corp., 176 NLRB 619 (1969),
argued that the contract was not retroactively effective.
In reaching his conclusion, the Regional Director found
that while the Board had never explicitly overruled Fed-
eral-Mogul, neither had it ever reaffirmed its holding
therein. Consequently, he concluded that the proper
standard for evaluating the lawfulness of the union-
security provision in this matter, and its impact upon the
contract’s bar status, was the standard set forth in Stan-
dard Molding Corp., 137 NLRB 1515 (1962).9 Applying
Standard Molding, the Regional Director determined that
the contract, though effective on August 12, 1995, was
clearly not executed until late October 1995, and that the
union-security provision unlawfully required nonmember
incumbent employees to become members of the Union
within 30 days of the effective date of the contract, i.e.,
by September 11, 1995, well over a month before the
contract came into existence. Accordingly, he found that

7 Although the union-security provision requires membership in the
Union without defining one’s membership obligations, it is not unlaw-
ful on its face. See Marquez v. Screen Actors Guild, 525 U.S. 33
(1998).
8 Since we have concluded that the contract does not require the
payment of assessments as a condition of employment, we need not
address the effects that either the union-security provision’s savings
clause or the limiting language of the dues-checkoff clause would have
had upon a facially invalid contract provision.
9 In Standard Molding, the Board found that the union-security pro-
vision involved showed on its face that it was retroactively effective.
Since the contract’s grace period was geared to that effective date, it
failed to accord nonmember incumbent employees the requisite 30-day
grace period required under Sec. 8(a)(3) of the Act. Therefore, because
the provision was incapable of lawful interpretation, the Board found
the contract forfeited its bar quality. Id. at 1516.
the union-security provision was unlawful on its face and
that the contract therefore forfeited its bar quality. We
disagree. Contrary to the Regional Director, we find that
Federal-Mogul is controlling here.
In Federal-Mogul, supra, 176 NLRB at 619, the pre-
amble to the contract contained the language, “This
Agreement made and entered into this 20th day of May,
1968.” Prior to the signatures of the parties, the follow-
ing language appeared, “IN WITNESS WHEREOF, the
parties have hereunto set their hands this 10th day of
June, 1968.” Thus, the Regional Director there con-
cluded, as the Regional Director did in the instant matter,
that the difference between the effective date of the con-
tract and the date on which it was signed made the con-
tract retroactively effective and rendered it incapable of a
lawful interpretation under Standard Molding.
In reversing the Regional Director, the Board in Fed-
eral-Mogul, supra, reasoned that since the language in
the contract’s preamble clearly indicated by its very
terms that it was “made and entered into” on the effective
date, the contract and its union-security provision were
actually in effect on that date and had not been put into
effect retroactively at the time of the contract’s subse-
quent signing. Id. Accordingly, the Board found that
such a contract was not unlawful on its face and that
Standard Molding was inapplicable. Id. Like in Fed-
eral-Mogul, we so find here.
In the instant case, the applicable union-security con-
tract provision states that all incumbent employees “shall
on the thirtieth (30th) day following the effective date of
this Agreement, become and remain members in good
standing in the Union.” The contract also expressly
states that “THIS AGREEMENT made and entered into
this 12th day of August” is binding on the parties “for the
period August 12, 1995 to August 11, 1998” and that
“this Agreement shall be in full force and effect from
August 12, 1995 to August 11, 1998.” It is thus clear
from the terms of the contract itself that it was made and
entered into on August 12, 1995, and that it was in fact
effective as of that date. Therefore, contrary to the Re-
gional Director, we conclude that the contract was not
made effective retroactively. As the allegedly unlawful
aspect of the union-security provision at issue here, i.e.,
the denial of the statutorily required 30-day grace period
to nonmember incumbent employees, does not appear on
the face of the contract, we further conclude that the con-
tract retains its bar status. See Paragon Products, supra,
134 NLRB at 666.
3. Although never litigated during the representation
hearing, the Regional Director concluded that the con-
tract forfeited its bar status on three additional grounds:
article V of the contract granted super-seniority to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70
shop steward for all purposes;10 article V could be con-
strued as conferring certain benefits to employees based
solely upon their membership and position in the Union;
and article III could be construed as going beyond the
limited form of union security permitted by Section
8(a)(3) of the Act given that the 45-day grace period for
new employees to meet their membership obligations
was identical to the probationary period for new employ-
ees. In response, the Employer and the Intervenor now
contend that the Regional Director violated their due
process rights by not affording them a meaningful oppor-
tunity to address the legality of these provisions.
In crafting its contract-bar rules, the Board has taken
care to balance the objective of maintaining stability in
labor relations against the objective of preserving em-
ployee freedom of choice in the selection of a bargaining
representative. Food Haulers, Inc., 136 NLRB 394, 395
(1962); Paragon Products, supra, 134 NLRB at 663.
Thus, in every case in which the Board has found that a
contract forfeited its bar status because of the presence of
a facially illegal provision, the illegality has been of a
character to constrain employee freedom of choice in the
selection of a bargaining representative, and the illegality
has been clear on the face of the contract, without the
necessity of resorting to extrinsic evidence.11
The Regional Director’s reliance on article V, the su-
per-seniority provision for shop stewards, to deprive the
instant contract of bar status fails to comport with the
basic principles underlying the Board’s contract-bar doc-
trine. Super-seniority for someone serving in a shop
steward position may, in some circumstances, unlawfully
encourage union membership. Indeed, that is the theory
of Dairylea Cooperative, Inc., 219 NLRB 656 (1975),
enfd. 531 F.2d 1162 (2d Cir. 1976), and its progeny. But
it does not constrain employee freedom of choice in the
selection of a representative in the same way that unlaw-

10 Art. V provides, in pertinent part, “Stewards shall be granted su-
per-seniority for all purposes including lay-off, rehire, bidding and job
preference. The Union reserves the right to remove the Shop Steward
at any time, for the good of the Union.”
11 In Pioneer Bus Co., 140 NLRB 54 (1962), the Board confronted
separate contracts for employees divided along racial lines. This was a
facially apparent constraint on employee free choice. In Pine Transpor-
tation, Inc., 197 NLRB 256 (1972), the contract granted seniority to
employees promoted to positions outside the bargaining unit on the
condition that they remained members of the Union, thereby maintain-
ing a union membership requirement that exceeded what is permitted
under the 8(a)(3) provision (i.e., membership required to obtain em-
ployment seniority). Again, this was apparent on the face of the provi-
sion and it implicated employee free choice. By contrast, although the
“hot cargo” clause contained in the contract at issue in Food Haulers,
supra, 136 NLRB at 396 (fn. omitted) was unlawful on its face under
Sec. 8(e) of the Act, the contract was deemed a bar because, as the
Board observed, such a clause “does not in any sense act as a restraint
upon an employee’s choice of a bargaining representative.”
fully required membership does. Thus, under Food
Haulers, both of the Regional Director’s theories for
finding this provision a ground for depriving the contract
of bar status must fail.12 Moreover, even apart from the
rationale of Food Haulers, the Regional Director’s reli-
ance on article V is erroneous because whether the provi-
sion is lawful or not depends on extrinsic evidence, i.e.,
whether the conjunction of plant positions and seniority
and bumping rules make application of the provision
needed in order to assure continuity of representation.
See Goodyear Tire & Rubber Co., 322 NLRB 1007
(1997), and cases cited therein. Whenever it is necessary
to look to extrinsic evidence in order to determine
whether a provision is unlawful, it is improper, under the
rules of Paragon Products, to rely on that provision to
deprive a contract of bar status.13
The Regional Director also relies on the coexistence of
the 45-day grace period for new employees to meet their
membership obligations and the 45-day probationary
period for new employees as a further reason why the
union-security provision should deprive the contract of
its bar status. We note that in reaching this conclusion,
the Regional Director does not even purport to claim that
the relevant union-security clauses are unlawful on their
face, but rather resorts to speculation that the “practical
effect” of the concurrent 45-day periods somehow goes
beyond the limited form of union security permitted by
Section 8(a)(3) of the Act. Once again, the Regional
Director runs afoul of the Paragon Products rules.
Finally, we must note that it was improper for the Re-
gional Director to decide this case on the three grounds
related to articles III and V because neither the Peti-
tioner, nor the hearing officer for that matter, ever raised
these as potential contract-bar issues and, consequently,
the parties had no notice of them at the time they were
12 Significantly, notwithstanding the frequency of the presence of un-
ion steward superseniority provisions in contracts, the Board has never
held that the presence of such a clause deprived a contract of bar status.
13 Thus, in St. Louis Cordage Mills, 168 NLRB 981 (1967), where
the contract limited females to seniority in “jobs traditionally held by
females” and similarly limited males to seniority in traditionally male
jobs, the Board found that the seniority clause was not unlawful on its
face because extrinsic evidence might show that sex was a “bona fide
occupational qualification” for the job within the meaning of Title VII
of the Civil Rights Act.
The Regional Director took the position that Teamsters Local 293
(Lipton Distributing), 311 NLRB 538 (1993), shows that the Board will
hold a steward superseniority provision unlawful on its face, without
even waiting for evidence from the opposing party. The provision in
that case, however, had nothing to do with seniority or with assisting a
steward in maintaining his or her position in the plant so as to provide
for continuity of representation. It simply provided that stewards
would be paid more than other employees. The provision on which the
Regional Director relied in this case bears no resemblance to that. In
any event, Lipton Distributing was not a contract-bar case.
FOUR SEASONS SOLAR PRODUCTS CORP. 71
presenting their positions at the hearing. As the Em-
ployer and the Intervenor correctly note, this was a denial
of due process to them. However, because for the rea-
sons stated above, we would not find that the provisions
in question deprive the contract of its bar quality, we will
not remand to allow the parties an opportunity to contest
the matter further.
Accordingly, since we find that the contract serves as a
bar to the instant representation petition, and we further
find that the petition was untimely filed, we shall reverse
the Regional Director and dismiss the petition.