Local 173

National Labor Relations Board - Board Decisions

Jul 24, 1958

121 N.L.R.B. 170 (N.L.R.B. 1958)

170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trade, traffic, and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. TEE REMEDY
Having found, that Local 5 has engaged in activities which violate Section 8 (b)
(4) (A) of the Act, it will be recommended that Local 5 cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
The General Counsel requests that a cease and desist order be issued broader than
is customary in cases of this nature. He advances two arguments in support of this
request. Relying upon statements made by International Representative Johnson
to Peters and Wachob at their July 3, 1957, conference, the General Counsel
asserts there exists a "planned program" on the part of the Respondents "to apply
the same technique to all non-IBEW employers within its territorial organizing juris-
diction." However, as there is no evidence that Johnson was an agent of Local 5
his statements did not bind that organization and thus there is no competent evidence
of the alleged "planned program." The General Counsel's second argument is
that "Respondent Local 5 has in the recent past been subject to the filing of numerous
unfair labor practice charges involving alleged violations of 8 (b) (4)." In his
brief to the Trial Examiner the General Counsel lists 7 charges of alleged violations of
Section 8 (b) (4) (A) of the Act filed against Local 5 since August 9, 1949, and 2
charges of alleged, violations of Section 8 (b) (4) (D). However, he does not
state that any of the charges resulted in a hearing wherein Local 5 was found to
have violated these sections of the Act., Contrary to the contention of the General
Counsel, I find these circumstances do not establish "a disposition on the part of
Respondent Local 5 to violate the Act." 22 Accordingly, I shall recommend the
type of order customarily used to remedy violations of Section 8 (b) (4) (A) of the
Act 23
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS_ OF LAW
1. By engaging in, and inducing or encouraging the employees of Franklin
.Electric Construction Company to engage in, a strike and a concerted refusal in
the course of their employment to perform services with the object of forcing or
'requiring Franklin Electric Construction . Company to cease doing business with
Mellon-Stuart Company and Bell Telephone Company of Pennsylvania , and Bell
to cease doing business with David B . Adams, d/b/a Line Construction Company,
Charles D. McDonald , Inc., Moon Construction Company, and other nonunion
contractors ,. the Respondent, International Brotherhood of Electrical Workers,
Local 5, AFL-CIO, has engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
3. International Brotherhood of Electrical Workers, AFL-CIO, has not engaged
in any unfail labor practices within the meaning of the Act.
(Recommendations omitted from publication.]
as The fact that several of the cases initiated by the charges , cited by the General
Counsel, resulted in settlement agreements under ' which the Local was required to post
notices do not amount to confessions of guilt on the part of the Union . Respondents
frequently settle cases wherein they refuse to admit guilt merely to avoid the expense
of litigation.
w See Local No. 980 of al. ( The Kroger Company), 119 NLRB 469.
Local 173, International Molders and Foundry Workers Union
of - North America, AFL-CIO [Hubley Manufacturing Com-
pany] and Gene Evans. Case No. 4-CB-399. July 24, 1958
DECISION AND ORDER
On'February 7, 1958, Trial Examiner Herbert Silberman issued
his Intermediate Report in the above' entitled proceeding finding
121 NLRB No. 34.
LOCAL 173 171
that the Respondent had not engaged in the unfair labor practices
alleged in the,complaint and recommending that it be dismissed in
its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief, and the Respond-
ent filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations.'
[The Board dismissed the complaint.]
'International Association of Machinists, Precision Lodge Yo. 1800 (Adel Precision
Products ), 120 NLRB 1223.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Gene Evans, an individual , the General Counsel
of the National Labor Relations Board , by the Regional Director for the Fourth
'Region '(Philadelphia, Pennsylvania ), issued a complaint on September 5, 1957,
against the Respondent, Local 173, International Molders and Foundry Workers
Union 'of North America, AFL-CIO, herein referred to as the Union, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and, (2 ) and Section 2 (6) and (7)
of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies
of the charge, complaint, and notices of hearing thereon . were served upon the
parties. Respondent filed an answer, verified September 9, 1957, denying that it
.'had committed any unfair labor practices.
Pursuant to notice, a hearing was held on October 22, 1957, at Lancaster, Pennsyl-
vania, before Herbert Silberman , the duly designated trial Examiner. The General
Counsel and the Respondent were represented at the hearing by counsel. Full
'opportunity to be heard, to examine and cross -examine witnesses , to introduce evi-
dence pertinent to'the issues, and to present oral argument at the close of the hearing
was afforded the parties . - At the opening of the hearing, the 'General Counsel moved
to correct the complaint in minor respects and to amend the complaint by incorporat- '
ing an allegation that upon the facts set forth the Respondent had also engaged in
and was engaging in unfair labor practices within the meaning of Section 8 (b) (5)
of the Act. Respondent 's objections to the amendment of, the complaint were over-
ruled and the motion was granted . Respondent then moved to amend its answer
to include a denial of the amendment to the complaint , which was granted. De-
-ci§ion 'was reserved on Respondent's motion, made at the close of the hearing,
to dismiss the complaint in its entirety . The motion is disposed of in accordance with
the findings and conclusions made below. Briefs were submitted on behalf of the
General' Counsel' and Respondent which have been given 'cazeful consideration. '
With respect to the unfair labor practices , the amended complaint alleges, in
substance , that the Respondent denied Gene Evans membership in the Union because
of his ` refusal to pay a ' reinstatement fee of $25 demanded of him as a former or
suspended member of the Union although he was willing to pay the initiation fee of
$5 applicable to persons seeking membership in the on for the first time, and
that, in violation of Section 8 (b) (2) and (5) of the Act, the Respondent caused
Hubley Manufacturing Company to discharge Gene Evans for failing to become
a member in good standing in the Union as was required by the terms of a subsisting
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective -bargaining agreement between the Respondent and Hubley ; and that by
this and other conduct Respondent also violated Section 8 (b) (1) (A) of the Act.
Upon the entire record in the case , and from my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Hubley Manufacturing Company, herein referred to as Hubley, a Pennsylvania
corporation, is engaged in the manufacture and sale of toys. During the year 1956,
Hubley sold and shipped goods valued in excess of $50,000 from its plants in Pennsyl-
vania to persons and business firms located outside the Commonwealth of Pennsyl-
vania. I find that Hubley is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 173, International Molders and Foundry Workers Union of North America,
AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
There is no substantial dispute about any of the events material to this case.
During all times relevant hereto, Hubley has recognized the Respondent as the col-
lective-bargaining representative for all production and maintenance employees at
its plants in Lancaster County, Pennsylvania, and the Company and the Union have
been parties to a series of collective-bargaining agreements which have included,
among other provisions, union-security clauses. The pertinent provision of the most
recent contract, which became effective June 1, 1957, requires new employees hired
in the classifications covered by the agreement to become and remain members in
good standing in the Union after a probationary period of 30 days and imposes upon
the Union the obligation "to accept all such employees for membership in the
Union at the regular initiation fees and dues prescribed in its Constitution and By-
Laws."' Respondent does not have a separate constitution and bylaws but gov-
erns itself by the International's constitution and rules of order.2
The Constitution does not allow a member of the International or any subordinate
union, such as Local 173, the Respondent herein, to resign. (Section 181.) How-
ever, it provides that a member who fails to pay dues for a period of 3 months shall
stand suspended. A suspended member may obtain reinstatement by paying a
prescribed fee. Prior to 1956, the applicable provision of the Constitution was
as follows:
Any miscellaneous employee members allowing himself to become suspended
for non-payment of dues, the reinstatement fee shall be $9.00; if he neglects or
refuses to be reinstated within three months the reinstatement fee shall be
$12.00; if not reinstated within twelve months the reinstatement fee shall be
$15.00.4
At the same time the Constitution gave the local unions discretion to determine for
themselves, but within prescribed limits, the initiation fees for new members and for
miscellaneous employee members the minimum fee was $3 and the maximum fee was
$15.5 In 1956, the Constitution was amended in various respects. The local unions
retained discretion to set the initiation fees for new members but the prescribed range
for miscellaneous employee members was increased to a minimum of $5 and a maxi-
'There is no contention that the Union 's initiation and reinstatement fees, discussed
below, are not "prescribed in its Constitution and By-Laws."
7 Except where otherwise indicated all references to the constitution will be to the
International 's constitution adopted at Toronto, Canada, July 23, 1956.
8 The 1956 constitution , as well as the 1951 constitution , lists various types of mem-
bership cards , three of which depend upon the individual 's job skills . These are journey-
man, skilled mechanic , and miscellaneous employee member . ( Section 178 .) All em-
ployees at the Hubley plants fall into the last category.
' Section 117 ( a) of the constitution and Rules of Order of the International Molders
and Foundry Workers Union of North America , adopted at Minneapolis , Minnesota,
August 24, 1951.
5 Section 116 of the 1951 Constitution.
LOCAL 173 173
mum of $25.6 The reinstatement fees schedules were revoked and in their place the
following was adopted:
A member who shall fail to pay dues for a period of three months shall stand
suspended. A suspended member can again become a member by initiation into
the local union under whose jurisdiction he is working by paying the prescribed
initiation fee as set forth by that local union. (Section 91.)
It appears from the uncontradicted testimony of William J. Benson, president of the
Respondent, and Wilmer Sheckard, a district representative of the International, that
the purpose of the quoted amendment to the Constitution was not to abolish the dif-
ference between the initiation fee for new members and the fee required to be paid
by suspended members seeking reinstatement, but to give the local unions the same
discretion in fixing amounts of the latter as it had with respect to the former.?
Sheckard testified that since the International was organized almost a hundred years,
ago it has preserved the distinction between the initiation fee for new members and
the reinstatement fee for suspended members.
Following the 1956 International convention the Respondent, at a meeting of its
membership, held on August 14, 1956, raised its initiation and reinstatement fees.
The initiation fee for new members was set at $15 and for reinstated members at $25.
About May 31, 1957, the Respondent lowered the initiation fee for new members to
'$5 but retained the reinstatement fee at $25. William J. Benson, Respondent's presi-
dent, testified that the reinstatement fee is charged to all individuals in a similar
position.
Gene Evans worked for Hubley from August 1953, until he' voluntarily quit on
September 15,' 1955. When he left Hubley's employ in 1955, he was a member in
good standing of the Union .8 He did- not obtain an honorary card from the Union,
which would have entitled him to resume active membership in the Respondent with-
out the payment of an initiation or a reinstatement fee.9 Two years later Evans ap-
plied for reemployment with Hubley and was hired on July 9, 1957. At the time he
was hired he signed a checkoff card authorizing the company `,to deduct from my
earnings, the monthly dues I may owe Local Union No. 173, and pay'the same to the
Financial Secretary of the Local Union...." On July 1 I Evans was given a card
by Robert Harmon, a job steward of Respondent, which advised him that he was
required to become a member in good standing upon the expiration of his 30-day
probationary period 'on August 8, 1957, and that-the initiation'fee plus I month's dues
is $8.10 Several days later Harmon advised Evans that the latter would be required
to pay a reinstatement fee of $25 instead,of the $5 initiation fee applicable to new
members because he had failed to obtain` an honorary card when he left the Com-
pany's employ in 1955. , Thereafter, Evans had a number of -conversations with
various officials of Respondent about the matter but they insisted that he had to pay
the $25 reinstatement fee, although he was advised that he might do so in -install-
ments a Evans refused to pay the $25 reinstatement fee, and on August 11, 1957, at
the demand of the Respondent, Evans was discharged for his failure to do 80.12
Q Section 85 of the 1956 Constitution.
4 In the exercise of its discretion a local union may make the amount of the reinstate-
ment fee the sm ie as the initiation fee.
The agreement then in effect between Hubley and the Respondent , as well as the cur-
rent contract, contained a union-security 'and a checkoff clause.
Y Benson 's testimony in this regard is uncontradicted . The applicable provisions of
the 1956 Constitution are sections 90, 178' (a) and 188.
'°The $8 represents $3 dues and $5 initiation fee, which was the - fee for new members.
u Evans testified that in these conversations the $25 fee was sometimes referred to as
a fine and sometimes as a reinstatement fee, Foreman Hermit Murray testified that
he had a discussion with Harmon about Evans during which Harmon referred, to the
$25 demanded from Evans as- a fine. The testimony of Evans and Murray with respect
to the characterization of the $25 as a fine was contradicted by witnesses for'the Re-
spondent. It is unnecessary to resolve the conflicting testimony in this regard because it Is
clear from the record and I find that regardless of the, words used by of leials. of the
Respondent to describe the $25 demanded from Evans It was always understood-that
it represented the prescribed fee for reinstatement of suspended members, such as Evans,
who had become inactive by withdrawal from the trade and had failed to obtain an
honorary card. There is no merit to the. General Counsel's argument that if the $25
demanded of Evans had been referred to as a fine by officials of the Respondent it must-
be considered by the Board to be a fine regardless of the undisputed fact,that, at no time
did such persons intend to refer to anything other than the prescribed reinstatement feew
12 Evans did not make a tender of the $5 initiation fee before his discharge. However,
the evidence is clear that he was willing to make such payment and that a tender thereof
1
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon these facts the General Counsel contends that the $25 demanded from
Evans was not an "initiation [feel uniformly required as a condition of acquiring
or retaining membership" in a labor organization within the meaning of Section 8
(a) (3) of the Act and therefore Respondent violated Section 8 (b) (2) thereof
by causing Hubley to discharge Evans for failing to make such payment and further
that such sum was "discriminatory under all the circumstances" within the meaning
of Section 8 (b) (5) and Respondent also violated this provision of the Act by
requiring such payment from Evans as a condition precedent to acquiring member-
ship in good standing in the Union. In Food Machinery and Chemical Corporation,
99 NLRB 1430, the Board majority, upon a factual situation similar to the one
here, found no violation of the Act.13 This case has not been reversed. However,
the General Counsel argues "that the underlying principle in [the Food Machinery]
case has been not only abandoned by the Board in subsequent cases but that the
Board has acted in conformity with principles set forth by the Supreme Court in
its Radio Officers' Union case . . ." and other cases cited in his brief. It may
be true, as the General Counsel suggests, that the Board in various cases issued
subsequent to the Food Machinery case adopted principles that cannot be harmo-
nized with its decision in the Food Machinery case. Nevertheless, if I were to
assume that the Food Machinery case will not be followed and will be overruled
by the Board in the instant proceeding, I would be anticipating Board action.
This I may not do. Recently, in Insurance Agents' International Union, AFL-CIO,
119 NLRB 768, the Board took occasion to define a Trial Examiner's obligation
in this regard, as follows:
It remains the trial examiner's duty to apply established Board precedent which
the Board or the Supreme Court has not reversed. Only by such recognition
of the legal authority of Board precedent, will a uniform and orderly adminis-
tration of a national act, such as the National Labor Relations Act, be achieved.
The General Counsel advances the alternative argument that the instant proceed-
ing may be distinguished on its facts from the Food Machinery case. I do not
agree: Such differences as exist between the two cases are, in my opinion, of no
significance as regards the applicability of the principle enunciated by the Board
in the Food Machinery case. Accordingly, I find myself constrained to follow the
Food Machinery case and therefore find that the facts described above did not
give rise to any unfair labor practices 14
The complaint also alleges a violation of Section 8 (b) (1) (A) of the Act on
the part of the Respondent by reason of an alleged threat made to Evans that his
failure to pay the above described sum of $25 "would result in his inability to retain'
employment with any other employer in a plant covered by a contract with a union
affiliated with the AFL-CIO.", The testimony adduced in support of this allegation is
would have been a futile gesture. On August 15, 1957, after his discharge , Evans did
tender $5 to Respondent in payment of his initiation fee but it was rejected solely on
the ground that it was insufficient in amount . This confirms my finding that such tender
before Evans' discharge likewise would not have been accepted.
33 The Board 's interpretation of the sections of the Act applicable to the issues was, in
part, as follows :
We read Section 8 (b) _(5), particularly the cautionary language -specifically in-
cluded by Congress and quoted above, to mean that Congress did not intend the
Board to find labor organizations in violation of the law, where , as here, following
well -settled practice , they, have done no more than to establish a different, but fairly
reasonable classification of former members as distinguished from new applicants.
As in the case of Section 8 (b) (5), the Board has construed Section 8 ( a) (3) and
8 (b) (2)• of the 'Act to permit a labor organization holding a union-security agree-
ment to charge , as a' condition of acquiring or retaining membership , different initia-
tion fees and periodic dues provided they are based on a reasonable 'classification;
that is, one that is not discriminatory. -
14 The General Counsel adduced some inconclusive testimony that another employee at
Hubley's plant by the name of Jim Greineder had been excused from paying a $25 rein-
statement fee in circumstances similar to that applicable to Evans because the Union
had lost Greineder's record of previous employment with Hubley. William J. Benson,
president of Respondent, testified that Greineder was not excused from making such
payment. Greineder was not called as a witness. In the circumstances, I find that the
General Counsel has failed to prove that the reinstatement fee in issue in this case was not
uniformly applied to all persons in the same category.
FALCON TOOL & MACHINE CORP. 175
as follows : On an occasion when Evans was discussing his situation with George
L. Border , secretary of the Respondent, the latter said, according to Evans, "that
if I would quit over this matter and go any place else where there is an AFL or a
CIO union, he said that he wasn't trying to scare me or threaten me, but if I went
any place else where there was an AFL or a CIO union , I still might be required to pay
the fine, and it might make it a little rough for me." I agree with the Respondent
that this statement was not a threat of reprisal . It was merely an expression of
opinion by Border that the problem Evans was experiencing at Hubley with respect
to the reinstatement fee might arise later in connection with other employment. In
the circumstances, I do not find that the General Counsel has established through
this incident a violation of Section 8 (b) (1) (A) of the Act.
CONCLUSION OF LAW
Respondent has not engaged in any unfair labor practices within the meaning of
the Act.
[Recommendations omitted from publication.]
Falcon Tool & Machine Corp. and Falcon Special Machines, Inc.
and Die & Tool Makers Lodge No . 113, International Associa-
tion of Machinists , AFL-CIO, Petitioner. Case No. 13-RC-5841.
July 24, 1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
On February 28, 1958, pursuant to a stipulation for certification
upon consent election, an election by secret ballot was conducted
under the direction and supervision of the Regional Director for the
Thirteenth Region among the employees in the stipulated unit.
Upon completion of the election, the parties were furnished with a
tally of ballots. , The tally shows that, of approximately 29 eligible
voters, 27 cast valid ballots, of which 15 were cast for the Petitioner
and 12 were cast against the Petitioner.
. On March 5, 1958, the Employer filed timely objections to the
election.. The Regional Director investigated the objections and on
June 10, 1958, issued and duly served upon the parties his report on
objections in which he found the objections to be without merit and
recommended that they be, overruled. On June 19, 1958, the
Employer filed timely exceptions to the Regional Director's report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers -in connection with
this case to a three-member 'panel [Chairman'Leedom and-Members
Bean and Fanning]. -
Upon the entire record in'this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor, organization involved claims to represent certain
employees of the Employer.
121 NLRB No. 31.