Local 1936, Brotherhood of Railway, Airline & Streamship Clerks

National Labor Relations Board - Board Decisions

Apr 22, 1977

229 N.L.R.B. 243 (N.L.R.B. 1977)

LOCAL 1936, BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS
Local 1936, affiliated with the Brotherhood of Rail-
way, Airline and Steamship Clerks, Freight Han-
dlers, Express and Station Employees, AFL-CIO
(NCR Corporation) and Charles Sanders and
Harold A. Fritts
Local 1933, affiliated with the Brotherhood of Rail-
way, Airline and Steamship Clerks, Freight Han-
dlers, Express and Station Employees, AFL-CIO
and Harry Glasgow, Harry J. Amon, Thomas
William Burns, Thomas M. Spiers, Jay R. West,
and James Anthony DeJoseph
Local 1940, affiliated with the Brotherhood of Rail-
way, Airline and Steamship Clerks, Freight Han-
dlers, Express and Station Employees, AFL-CIO
and John F. Willforth and Richard J. Gomulka
Local 1939, affiliated with the Brotherhood of Rail-
way, Airline and Steamship Clerks, Freight Han-
dlers, Express and Station Employees, AFL-CIO
and James E. Miller
Local 1932, affiliated with the Brotherhood of Rail-
way, Airline and Steamship Clerks, Freight Han-
dlers, Express and Station Employees, AFL-CIO1
and Sim Evans. Cases 14-CB-3116, 14-CB-3127,
14CB-3264 through 3268 and 14-CB-3270
(formerly 4-CB-2695, 2697, 2698, 2704, 2710,
2712), 14-CB-3271, 3272 (formerly 6-CB-3579,
3584), 14-CB-3272 (formerly 8-CB-2961), and
14-CB-3274 (formerly 29-CB-2386)
April 22, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On January 21, 1977, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, the Respondents filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
229 NLRB No. 39
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondents, Locals 1936,
1933, 1940, 1939, and 1932, affiliated with the
Brotherhood of Railway, Airline and Steamship
Clerks, Freight Handlers, Express and Station
Employees, AFL-CIO, their officers, agents, and
representatives, shall take the action set forth in said
recommended Order.
The names of the Respondents appear as amended at the hearing.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on July 27, 1976, at St. Louis,
Missouri; on September 10, 1976, at Philadelphia, Pennsyl-
vania; on September 30, 1976, at Brooklyn, New York; on
October 5, 1976, at Pittsburgh, Pennsylvania; and on
October 6 and 7, 1976, at Cleveland, Ohio; pursuant to
various charges and amended charges filed by individuals
in Regions 4, 6, 8, 14 and 29 of the National Labor
Relations Board (the original and eventual numbers of
which appear in the caption) on dates between December
31, 1975, and May 28, 1976, which were duly served upon
the respective Respondent, as applicable; upon complaints
and notices of hearing issued by the Regional Directors for
Regions 4, 6, 8, 14, and 29 between April 26 and June 4,
1976, all of which were served upon the respective
Respondent, as applicable; an order of the General
Counsel of the National Labor Relations Board on June
14, 1976, transferring cases to Region 14; an order of
consolidation and notice of hearing issued by the acting
Regional Director for Region 14 on July 20, 1976, which
was duly served on Respondents, and on various amend-
ments to the consolidated complaint which were likewise
duly served on Respondent or made on the record at the
hearing. The consolidated complaint, as finally amended
(which will be referred to hereinafter simply as the
complaint), alleges that Respondents, variously, violated
Section 8(bXI)(A) of the National Labor Relations Act, as
amended, by notifying employees who had resigned from
membership in Respondents, or who had not been
members, that they were required as a condition of
continued employment with the NCR Corporation (herein-
after referred to as the Employer), to pay dues and
reinstatement fees - said fees being imposed and said dues
being charged because of the employees' failure to pay
dues at times they were not contractually obligated so to do
as a condition of employment. In its answers to the
complaint, which were also duly served or made on the
record at the hearing, Respondents have denied the
commission of any unfair labor practices.
For reasons which appear hereinafter, I find and
conclude that the Respondents have violated the Act,
essentially as alleged in the complaint.
At the hearing the General Counsel and Respondents
were represented by counsel. Each party was given full
opportunity to examine and cross-examine witnesses, to
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
introduce evidence, and to file briefs. The General Counsel
and Respondents waived the presentation of oral argument
at the conclusion of the hearing. Subsequent to the hearing,
the General Counsel and Respondents have submitted
briefs, which have been considered.
Upon the entire record' in this case including the briefs
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACt
I. THE BUSINESS OF THE EMPLOYER
The Employer is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of Delaware, engaged in the manufac-
ture, sale, and service of business machines and has its
headquarters in Dayton, Ohio.
During the year preceding the issuance of the complaint,
the Employer made purchases in the Commonwealth of
Pennsylvania from sources located outside the Common-
wealth of Pennsylvania valued in excess of $50,000.
The complaint alleges, the answers admit, and I find that
the Employer is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. RESPONDENTS; THE LABOR ORGANIZATIONS
INVOLVED
Respondents Locals 1936, 1933, 1940, 1939, and 1932, all
affiliated with the Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers, Express and Station
Employees, AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act. Each of these labor
organizations will sometimes be referred to hereinafter
simply as the Union at the location where it represents unit
employees.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Agency Status of Respondent Officials
The complaints allege, the answers as amended admit,
and I find that the following individuals were agents of the
After the close of the hearing, the General Counsel and Respondents
entered into a stipulation. I hereby reopen the record to receive this
stipulation which is as follows:
IT IS HEREBY STIPULATED AND AGREED by and between Counsel for
the General Counsel and Respondents that the collective-bargaining
agreement effective December 5, 1975, to August 31, 1977, as described
in paragraph 6 above, contains the following provisions:
ARTICLE I
UNION SECURITY
I. An employee who is a member of the Union at the time this
Agreement is signed shall continue membership in the Union for the
duration of this Agreement to the extent of paying membership dues
and fees as uniformly required.
2. An employee who is not a member of the Union at the time this
Agreement is signed shall become a member of the Union within sixty
(60) days after the signing of this Agreement, or within sixty (60) days
following employment, and shall remain a member of the Union to the
extent of paying membership dues and fees uniformly required.
instant Respondent Local, acting in its behalf, within the
meaning of Section 2(13) of the Act at all relevant times
herein:
For Local 1936 (St. Louis): Thomas Fitzgibbon, presi-
dent, Allied Services Division; Jesse Pelham, president,
business machine technicians and engineers section;
Norman D. Launhardt, Local chairman; Smith B. Hart,
president, Local 1936; Fred Moran, treasurer, Local 1936;
and George Reid, financial secretary-treasurer, Local 1936.
For Local 1933: Lawrence Nelms, Local president;
Joseph Francisco, secretary-treasurer; Art Blanchette,
Local chairman.
For Local 1932 (Hempstead and Patchogue): Arthur
Poslusny, chairman of Local 1932; R. Edward Prescott,
treasurer of Local 1932; and Jesse A. Pelham, vice
president, Allied Services Division.
For Local 1940 (Johnstown and Irwin): Daniel A.
Connors, financial secretary of Local 1940.
For Local 1939 (Cleveland): Paul A. Barjiel, chairman of
protection committee of Local 1939; and Paul A. Daniels,
financial secretary-treasurer of Local 1939.
B. Background
Each of the Respondents was a party to a collective-
bargaining agreement with the Employer effective from
July 1, 1974, until August 31, 1975, which was extended to
September 30, 1975. Each Respondent represents a unit of
the Employer's field engineers. Local 1936's unit at St.
Louis includes some 60 employees; Local 1933 represents
about the same number at Fort Washington Pennsylvania;
Local 1932 represents approximately 55 employees at
Hempstead and Patchogue, New York; Local 1940
represents some 74 employees at Johnstown and Irwin,
Pennsylvania; and Local 1939 represents about 63 to 73
employees at Cleveland, Ohio.2
Each of these collective-bargaining agreements had an
identical union-security clause which provided as follows:
Art. 1, Union Security. 1. An employee who is a
member of Union at the time this Agreement is signed
shall continue membership in the Union for the
duration of this Agreement to the extent of paying
membership dues uniformly required.
3. Employees cited to the employer shall first be furnished
reasonable advance written notification of such delinquency, which
shall contain a precise statement of the amount and months for which
dues and fees are owed and a statement of exactly what action is
required of an employee to protect his job.
4. The Union will notify the employer and employees who fail to
tender their application and fees within the time limits specified above,
or of employees who fail to tender uniform dues within the required
time.
Par. 6 referred to in the stipulation is apparently par. 6 of the so-called
consolidated complaint and notice of hearing issued by the Regional
Director of Region 6 on May 17, 1976 (G.C. Exh. 31i). the only par. 6 of any
of the complaints which purports to describe the 1975-77 contract. Having
received the stipulation, the record is again closed.
The transcript of the record in these proceedings is hereby corrected.
2 Sister locals of Respondents represent field engineering units of the
Employer at Detroit, Michigan, and New Brunswick, New Jersey, but these
employees are not involved in this proceeding.
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LOCAL 1936, BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS
2. An employee who is not a member of the Union
at the time this Agreement is signed shall become a
member of the Union within sixty (60) days after the
signing of this Agreement, or within sixty (60) days
following employment, and shall remain a member of
the Union, to the extent of paying membership dues
uniformly required for the duration of this Agreement.
Any employee whose religious beliefs forbid him from
becoming a member of the Union shall not be required
to become or remain a member of the Union. However,
he shall be required in lieu thereof to pay to the Union
such fees and dues as he would have paid as
membership dues to the Union, had he become and
remained a member of the Union as provided above.
Employees entering the unit during the term of this
Agreement whose religious beliefs forbid them from
becoming a Union member shall notify the Union in
writing of such fact.
3. The Union will notify the employer and employ-
ees who fail to tender their application and fee within
the time limits specified above, or of employees who
fail to tender uniform dues within the required time.
Upon receipt of such notice, the employer will, within
ten (10) calendar days so notify the employee that he is
in violation of the provisions of this Article, and he
shall have his service and seniority terminated. The
Corporation will furnish copies of this notice to
employees, and to the designated officer of the local.
On October 2, 1975, after the extensions of the collective-
bargaining agreements had expired, all of the Respondents
went on strike. From at least October 2, 1975, until
December 5, 1975, no collective-bargaining agreements
were in effect between the Employer and the Respon-
dents. 3 At the conclusion of the strike on December 5,
1975, a new collective-bargaining agreement was entered
into between the Employer and each Respondent, effective
from December 5, 1975, to August 31, 1977. These new
contracts contain the following uniform union-security
provisions with certain additional language, as noted, being
contained only in the contract of Local 1939 at Cleveland:
Art. 1, Union Security. 1. An employee who is a
member of the Union at the time this Agreement is
signed shall continue membership in the Union for the
duration of this Agreement to the extent of paying
membership dues and fees as uniformly required.
2. An employee who is not a member of the Union
at the time this Agreement is signed shall become a
member of the Union within sixty (60) days after the
signing of this Agreement, or within sixty (60) days
following employment, and shall remain a member of
the Union to the extent of paying membership dues and
fees uniformly required.
3. Employees cited to the employer shall be
furnished reasonable advance written notification of
such delinquency, which shall contain a precise
3 Respondents' answers to the complaints at Philadelphia and St. Louis
so admit. Also, see the admissions of Respondents' agents Poslusny (Local
1932. Hempstead and Patchogue). Connors (Local 1940, Johnstown and
Irwin) and Barjiel (Local 1939. at Cleveland).
While one complaint alleges, and the answer admits, that some provisions
statement of the amount and months for which dues
and fees are owed and a statement of exactly what
action is required of an employee to protect his job.
4. The Union will notify the employer and employ-
ees who fail to tender their application and fees within
the time limits specified above, or of employees who
fail to tender uniform dues within the required time.
The second paragraph of Local 1939's contract adds the
following:
Any employee whose religious beliefs forbid him
from becoming a member of the Union shall not be
required to become or remain a member of the Union.
However he shall be required in lieu thereof to pay to
the Union such fees and dues as he would have paid as
membership dues to the Union had he become and
remained a member of the Union as provided above.
Employees entering the unit during the term of this
Agreement whose religious beliefs forbid them from
becoming a Union member shall notify the Union in
writing of this fact.
The fourth paragraph in Local 1939's contract adds the
following:
Upon receipt of such notice, the employer will,
within ten (10) calendar days so notify the employee
that he is in violation of the provisions of this Article,
and he shall have his service and seniority terminated.
The Corporation will furnish copies of this notice to the
employees, and to the designated officer of the Local.
Respondents' International Constitution (Resp. Exh. 3),
article IV, section 1(a), sets forth the dues policies
governing all of the Respondent locals herein and states as
follows:
Dues are due and payable on the first day of each
calendar month which means that two months dues,
and not a portion thereof, must be paid on or before
midnight of the last day of that month or the member
will be automatically suspended. It is the responsibility
of every member to know when dues are payable and
pay them to an authorized representative of his lodge
within the time limits specified in this Article. No
demand for payment of such dues or notice of
nonpayment thereof or of delinquency is necessary or
required. A member who fails to pay his dues within the
time limits specified in this Article is automatically
suspended at 12 o'clock midnight of the last day of the
second month for which he owes dues.
A member who has been suspended for nonpayment of
dues may be reinstated upon payment of dues still owing
and a reinstatement fee.
Pursuant to article 27 of the same constitution, employ-
ees who work more than 40 hours in a calendar month are
of the subsequent December 1975 contract were made retroactive to
September 1975, the union-secunty provisions, as will appear, take effect by
their explicit terms prospectively from the signing of the agreement on
December 5, 1975.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
liable for that month's "full dues." An employee who works
less than 40 hours in a calendar month is only liable for so-
called retention of membership dues, which is $1.50 per
month.
Article 27 also provides for increases in union dues and
fees where approval is received from a majority of the unit
affected and the International president. Pursuant to these
provisions, initiation fees for all of Respondents were
increased to $75 and reinstatement fees were increased to
$100. Both these increases were apparently established in
the fall of 1975 and became effective no later than January
1, 1976. Dues for all of the Respondents were also
increased from $6.50 per month to $12 per month effective
January 1, 1976.
Prior to the beginning of the strike on October 2, 1975,
some of the employees in the units involved herein had
availed themselves of the option under the old (1974-75)
contract to pay sums equivalent to dues but not to become
members of Respondents. 4 These employees were consid-
ered by Respondents to be second-class members with the
same rights and privileges as first-class members.5
After the expiration of the 1974-75 contract (which was
extended, as noted, to September 30, 1975), or during the
ensuing strike which ended on December 5, 1975, a
number of employees who had been members of the
Respondent Locals sent letters of resignation to the
Respondent Locals. At least one employee who had never
been a member but paid dues also sent a letter of
resignation. The former members who resigned during the
strike and the employees who had not been members prior
to the strike worked for the Employer during all of, or a
part of, the strike. Virtually all of the employees who sent
or handed in letters of resignation during the strike did so
prior to or simultaneously with their return to work.6
Under the terms of the aforementioned International
constitution governing all of Respondent Locals there is no
provision for resignation from any Respondent except by
4 At St. Louis, these employees were Harland Diebel, Ronald Ellis,
Harold Fritts, and Kenneth Bradburn. At Fort Washington, these employees
were Harry Glasgow, Jay R. West, and Harry J. Amon. At Hempstead and
Patchogue, these employees were William Baxter and Walter I. Gould, Jr. At
Cleveland, these employees were Ronald Chilcot, Robert J. Harry, Robert
D. Kosloski, Peter C. Ford, James Miller, Angelo Rinaldi, Ronald Rowe, J.
E. Serdinak, and John H. Sudimak. No employee of Johnstown and Irwin
was shown to have exercised this option.
5 The distinction between first and second class was that second-class
member had not elected to complete his membership application.
6 At St. Louis, these employees who resigned and returned to work
during the strike were Don Sorrells, Dana Skornia, Jim Lee, Ronald
Pensoneau, Harry Keys, Lonnie Karius, David Cox, John Myers, Gerhare
Harms, John Guebert, Robert Grant, Ronald Reiner, Clarence Kremer,
Karl Reichmuth, Russell Heise, Irvin Huser, Thomas Odehnal, Michael
Parker, Clifford Flath, Herbert Janker, John Henderson, Tom Kinder,
George Nitchman, Charlie Sanders, Terry Monachella, Mark Dienstbach,
Robert Huelster, Art Ritz, Robert Uhlenbrock, Earl Nice, and Thomas
Reisner. Also, at St. Louis, employees Diebel, Ellis, Fritts, Damon, and
Bradburn - who paid dues but had not joined the Union - did not go on
strike at all.
At Fort Washington, those employees who resigned from the Union and
returned to work during the strike were William Burns, James DeJoseph,
and Thomas Spiers. Also, at Fort Washington, Glasgow, West, and Amon -
who paid dues but never joined the Union - did not honor the strike for its
entire duration (Amon sent a letter of resignation despite the fact he never
joined the Union).
At Hempstead and Patchogue, those employees who resigned from the
Union and returned to work during the strike were Joseph Borg, Jr., Ronald
Kowalski, and Sim E. Evans. Also, at Hempstead and Patchogue, employees
obtaining a withdrawal if the member leaves employment,
which did not occur here. Otherwise, a member simply
becomes suspended for failure to pay dues for 2 months.
Thereafter, he is liable for a reinstatement fee and for
repayment of the 2 months' back dues.
Even though no union-security agreement was in effect
during the period of the strike from October 2 until
December 5, 1975, and even though the union-security
agreement which went into effect on December 5, 1975,
provided that nonmembers as of that date had 60 days to
join the Union, the Respondent Locals invoked the policy
of their International constitution of charging employees
who worked during the strike dues for any month in which
they worked more than 40 hours. The Respondents also
determined that any employee who had not paid dues for 2
months was suspended from membership and liable not
only for the 2 months' dues but also for a reinstatement fee.
The Respondents sent letters to employees who worked
during all or part of the strike advising them that dues and
reinstatement fees were owed on the foregoing basis and
that failure to remit the same would cause the employee to
be cited to the Employer for noncompliance with the
union-security agreement of the new contract. These letters
were sent or delivered by the Respondent Locals at their
respective locations to the instant employees 7 on the
following dates: At St. Louis, on January 12, 1976; at Fort
Washington, within 2 days of January 19, 1976; at
Hempstead and Patchogue, on January 15, 1976; at
Johnstown and Irwin, on January 15, 1976; and at
Cleveland, on January 17, 1976.
Each letter followed a standard format,s which was as
follows:
Baxter and Gould (who paid dues but never joined the Union) did not
participate in the strike.
At Johnstown and Itwin, those employees who resigned from the Union
and returned to work during the strike were John F. Willforth, Jack Beal,
William Pallenchar, Presley Shuss, George H. Swiegard, Richard Gomulka,
James P. Lehman, Glenn 0. Hershberger, and Glendon Wayne Hostetler.
Charles Minana worked during the entire strike but did not resign from the
Union until January 28, 1976, almost 2 months after the strike was over.
At Cleveland Ohio, the employees who resigned from the Union and
returned to work during the strike were Lloyd Fiste, John M. Eads, James J.
Chase, J. M. Lilley, John P. Krawczynski, and John Fuss. The following
employees worked during the entire strike but sent letters of resignation at
its beginning or within a few days thereafter: John Hamilton, Keith
Robertson, Franklin Winslow, William J. Magalotti, William D. Knowlson,
and Wayne Cadnum. The following employees, who neverjoined the Union
but who paid dues, worked during the entire strike: Chilcot, Kozloski, Ford,
Miller, Rinaldi, Rowe, and Serdinak. Employee Sudimak, who likewise
never joined the Union, returned to work during the strike. Since the
commencement of this proceeding, employee Fiste has left employment;
employees Hamilton, Harry, and Sudimak have retired and employee Rowe
has transferred out of the unit.
7 The letters went to all employees, previously recited, who worked
during all of, or part of, the strike with the exception of Skornia, Ritz, and
Dientsbach at St. Louis - each of whom was, in any event, approached by
Respondent Local 1936 in December 1975, as will appear.
s The letters sent to the Johnstown and Irwin employees added a
statement describing the increase in dues, reinstatement fees, and initiation
fees, also added a notation regarding the amount of payroll deduction, and
enclosed a copy of the 1975-77 collective-bargaining agreement and articles
from the constitution of the grand lodge.
246
LOCAL 1936, BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS
TO: DATE: ---
Our records show that you have failed to maintain
your membership in the Union as required by the terms
of the BRAC Constitution. You failed to pay dues for
the months of --- and pursuant to the Constitution
and By Laws of the Brotherhood your membership in
the Brotherhood has been suspended. You last paid
dues for the month of --- and when you became
two months in arrears, your membership is automati-
cally suspended. (Statutes for the Government of
Lodges, Article 6)
Therefore, it is necessary for you to reinstate your
membership immediately. An application for member-
ship is enclosed and you must fill out this application
and return same with the proper amount of reinstate-
ment fee and dues within fifteen (15) days of the date of
this letter. The reinstatement fee is $-- and you also
owe -- months dues. The total amount that must
accompany the membership application form is $--.
I cannot stress too strongly the importance of your
filling out the application and forwarding same with the
correct amount of reinstatement fee and dues to the
undersigned, as the neglect of such will result in your
being cited to the Company for being in non-compli-
ance with the Union Shop Agreement.
Very Truly,
/s/ ------
cc: Mr. Thomas Fitzgibbon, President/ASD 9
The letters in St. Louis were signed by George Reid for
Respondent Local 1936; those in Philadelphia were signed
by Joseph K. Francisco for Respondent Local 1933; those
in Hempstead and Patchogue were signed by R. Edward
Prescott for Respondent Local 1932; those in Johnstown
and Irwin were signed by Daniel A. Connors for Respon-
dent Local 1940 and those in Cleveland were signed by
Paul A. Daniels for Respondent Local 1939. Each letter
signer is an admitted agent of his Respondent Local. Some
of the employees have paid the amounts demanded in the
letters.
The General Counsel concedes that the Respondents
have not, however, requested that the Employer discharge
those persons who have failed to pay the requested dues
and reinstatement fees.
Further, at St. Louis, Respondent Local 1936 Chairman
Launhardt and President Hart contacted certain employees
in late December 1975 and informed the employees that, if
they did not pay back dues before the end of that month,
they would also be liable for a reinstatement fee. These
individual employees included Sorrells, Skornia, Penso-
neau, Karius, Sanders, Dienstbach, and Ritz. These
individuals had not paid dues for November and Decem-
ber 1975 and would not have been under suspension
(which begins, as heretofore noted, when a member is 2
months in arrears under the rules governing all Respondent
Locals) until January 1, 1976. Because Skornia, Ritz, and
Dienstbach paid these dues, as requested, they were not
9 Although such a letter was sent to Chilcot, Fuss. Robertson, and
Winslow, at Cleveland, Respondent Local 1939 took the position at the
hearing that these individuals are not liable for reinstatement fees.
sent the above-described letter by Local 1936 on January
12, 1976, which went to all other employees at St. Louis
who had worked during all of, or part of, the strike.
On December 16, 1975, a deauthorization petition was
filed by Thomas A. Odehnal, a St. Louis unit employee, in
Case 14-UD-91. Thereafter, a deauthorization election
was conducted. On February 26, 1976 (after the demand
for back dues and reinstatement fees herein were made),
the Acting Regional Director for Region 14 issued a
Certification of Results of Election in which he certified
that a majority of the employees eligible to vote in the St.
Louis unit voted to withdraw the authority of Local 1936 to
require, under its agreement with the Employer, that
membership in Local 1936 be a condition of employment
with the Employer at St. Louis.
Concluding Findings
It is clear from the foregoing that a lawful union-security
agreement was in effect in the 1974-75 contract at all
locations here involved and that the last extension of that
contract expired on September 30, 1975. It is likewise clear
that there was no union-security agreement in effect during
the period of the strike which lasted at all locations herein
from October 2, 1975, until December 5, 1975. A lawful
union-security provision again appeared in the 1975-77
contract but, under its provisions, no employee who was
not a member of Respondents was required to pay
membership dues or fees, as uniformly requested, until 60
days following December 5, 1975, which was the day the
1975-77 contract was executed.
It further appears from the foregoing that all of the
employees, from whom dues and/or reinstatement fees
were sought by Respondents in the January 1976 letters
under threat of being discharged by the Employer, either
had never been members of any of Respondents or had
resigned their membership in the appropriate Respondent
prior to the effective date of the 1975-77 contract - all,
that is, except Charles Minana, who sent in his letter or
resignation on January 28, 1976.
Inasmuch as no union-security agreement was in effect
during the period of the strike, there was no contractual
requirement that any of the employees herein involved (not
even Minana) pay dues or fees as a condition of
employment during the months of October and November
1975, and none except Minana could be charged dues or
fees as a condition of employment in December 1975 or
January 1976 because no dues or fees would become due
until on or about February 3 - i.e., 60 days after the
union-security provisions of the 1975-77 contract went into
effect.
All of these employees involved in the present case
worked at least 40 hours in November and December 1975,
and all were charged dues for both these months (and some
for October 1975). Virtually all those involved were
likewise charged reinstatement fees and said fees were
assessed as the result of their failure to pay dues during
November and December 1975.
247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents' letters to the employees in January 1976
therefore constituted an effort to collect dues and fees from
the employees-under threats of Respondents seeking their
discharge by the Employer - for periods when no dues
were owing as a condition of employment.
Respondents argue, however, that, because said dues and
fees were due under the provisions of Respondents'
International constitution (requiring payment of dues for
any month in which a member works at least 40 hours),
Respondents were entitled to seek such dues and fees
under the "financial core" support accorded to them under
the proviso to Section 8(a)(3) of the Act which legalizes
union-security agreements like those present herein.' o
According to Respondents, all those employees involved
here who were suspended members were determined by
Respondents to be in arrears of at least 2 months' dues
when the letters were sent in January 1976 and that each
such suspended member owed the respective Respondent
those 2 months' dues as well as a reinstatement fee at the
time the letters were sent. Respondents contend that such
dues and fees were owed because none of the employees
involved herein - whether he had been a class I or class 2
member according to Respondents' terminology - had
ever legally dissolved his union membership relationship
which under the requirements of Respondents' Internation-
al constitution continued until the employees became
suspended. Suspension occurs after the employee has let
his dues lapse for 2 months. Respondents' argument goes
on that said employee, upon resuming the union member-
ship relationship (i.e., remaining in employment under a
union-security clause), became liable for the 2 months'
back dues and a reinstatement fee. Respondents further
point out that the charge for 2 months is not unreasonable
because the suspended union member was covered accord-
ing to the governing International constitution for union
benefits for 60 days after he last paid dues (e.g., he
continued to be entitled to the death benefit for that
period) and, Respondents say, the reinstatement fee is not
excessive nor discriminatory. Finally, Respondents urge
that their membership suspension rules are not such as "to
invade or frustrate an overriding policy of the labor laws so
that the rules may not be enforced" - the test for
enforcement of such internal union rules set forth by the
Supreme Court in Scofield, et al. [Wisconsin Motor Corp.] v.
N.LR.B., 394 U.S. 423, 429 (1969).
I reject these contentions.
While I have found that each of the employees involved
herein worked at least 40 hours in November and
io See N.L.R.B. v. General Motors Corporation, 373 U.S. 734 (1963),
where the Supreme Court held that under Sec. 8(aX3) of the Act, as
amended, union membership as a condition of employment had been
whittled down to its "financial core," i.e., dues and fees as uniformly
required.
" 1 Namm's Inc., 102 NLRB 466 (1953), and cases cited therein. (While a
separate and unrelated holding in Namm's Inc. was later overruled by the
Board in Kaiser Steel Corporation, 125 NLRB 1039 (1959). the instant
holding of Namm's Inc., is still the law.) Tech Weld Corporation, 220 NLRB
76 (1975).
1I International Brotherhood of Boilermakers, Iron Ship Builders. Black-
smiths, Forgers and Helpers, Local Lodge No. 338, AFL-CIO (Eidal
International Division Southwest Factories, Inc.), 166 NLRB 874 (1967), enfd.
409 F.2d 922 (C.A. 10, 1969); Spector Freight System Inc. (Local 600,
Highway & City Freight Drivers, Dockmen and Helpers), 123 NI.RB 43
(1959), enfd. 273 F.2d 272 (C.A. 8, 1960), cert. denied 362 U.S. 962.
December 1975, and did not (with a few exceptions) pay
union dues for those months on or before December 31,
1975, and therefore become liable for 2 months' dues and
reinstatement fees on January 1, 1976, under the provisions
of Respondent's International constitution, none was liable
for dues in those months (nor consequently for a reinstate-
ment fee as will appear) as a condition of employment with
the Employer. For there was no union-security agreement
in effect in November and the month of December was
well within the grace period of the union-security provi-
sions of the 1975-77 contract, which gave nonmembers 60
days before dues and fees were required as a condition of
employment. And it is well settled that back dues owing
under an internal union rule are "plainly more than
periodic dues or initiation fees that could lawfully be
imposed by a labor organization upon employees covered
by a union security agreement" to obtain membership in
good standing as a condition of employment under a
union-security agreement." Nor can a reinstatement fee be
assessed as a condition of employment where such fee
derives from an internal union rule requiring payment of
the fee for failure to pay dues at a time when such dues
were not owed pursuant to a valid union-security agree-
ment.t2
Accordingly, by sending the January 1976 letters to the
employees demanding back dues and reinstatement fees
under threat of Respondents seeking their discharge from
the Employer, Respondents have each violated Section
8(b)(1)(A) of the Act.'3
The illegality of these demands under my holding, supra,
stems from the hiatus in the contractual union-security
requirements. That is, insofar as the efforts to collect dues
for 40 hours' work in November (or October) 1975 are
concerned, the illegality relates to the fact that no union-
security agreement was in effect during those months and
not, necessarily, from the fact that most of the employees
involved herein had resigned from membership before
completing their first 40 hours of work during this period.' 4
On a different theory, however, the nonmembership of
most of the employees at the time they returned to work
during the strike is relevant. I have held that most returned
to work after submitting resignations to Respondents or
simultaneously with such submission.' 5 The resignation
letters of virtually all of those who returned to work
simultaneously were received 2 - 3 days later (i.e., at a time
when the returning employee had completed less than 40
hours' work). Under the applicable provisions of Respon-
dents' International constitution, none who returned to
iJ Namm's Inc., supra; see Eidel International Division Southwest Facto-
ries, Inc., supra, Spector Freight System, supra.
14 Id While the employees had signed checkoffauthorizations during the
life of 1974-75 contract, the standard checkoff forms by their terms expired
with the applicable union-security agreement. Of the nonstandard checkoff
authorizations signed by some employees, none was shown to authorize
dues checkoffs for periods when dues were not owed under the terms of the
applicable collective-bargaining agreement.
1s The dates of the receipt of the letters of resignation for most employees
involved at Hempstead and Patchogue, Fort Washington, Johnstown and
Irwin, and Cleveland so indicate. At St. Louis, Respondent Local 1939
Agent Launhardt did not deny the admission in his preheanng affidavit that
all employees who worked during the strike resigned from Local 1939 before
returning to work. His later testimony that the dates on the resignation
letters and the dates they were received does not alter this earlier admission.
248
LOCAL 1936, BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS
work purportedly became liable for dues in any month
until he had performed more than 40 hours of employment
in that month. By demanding dues from the foregoing
employees who had resigned before completing 40 hours'
work during the strike, Respondents were imposing dues
liability on employees who had ceased to be members prior
to the time their dues purportedly became due and owing.
The imposition of such a liability on a former member who
was a nonmember at the time Respondents claimed the
liability occurred is, in my judgment, tantamount to a fine
against a former member assessed for activities in which he
engaged following his union resignation. By making such
fine-type assessments in the January 1976 letters, Respon-
dents have further violated Section 8(bX)(IA) of the Act.16
By orally notifying some employees at St. Louis in
December 1975 of such assessments, Local 1936 further
violated Section 8(b)(l)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth above, occurring
in connection with the operations of the Employer set forth
in section I, above, have a close, intimate, and substantial
relationship to 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.
CONCLUSIONS OF LAW
i. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of commerce.
2. Each of the Respondent Locals is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By threatening employees in letters dated in January
1976 that their discharge would be requested if they did not
pay back dues and/or reinstatement fees claimed to be due
and owing for periods in which no union-security agree-
ment between Respondents and the Employer was in
effect, each Respondent has violated Section 8(b)(1)(A) of
the Act.
4. By demanding in letters dated in January 1976 dues
and/or reinstatement fees from nonmembers for working
for the Employer during periods occurring after their
resignation from membership in Respondents and further
occurring while no union-security agreement was in effect
or had become applicable, each Respondent has violated
Section 8(b)( )(A) of the Act.
5. By orally demanding in December 1975 dues from
nonmembers for working for the Employer during periods
occurring after their resignation from union membership
16 See Whitaker Cable Corporation, 224 NLRB 580 (1976). In so holding.
I reject any defense of Respondents that the employees had not followed the
resignation procedures of Respondents International constitution. As
Joseph Condo, the general secretary-treasurer of Respondents' International
(the Allied Services Division of the Brotherhood of Railway and Airline
Clerks), plainly testified, there is no resignation procedure under that
constitution other than a withdrawal. The withdrawal procedure of that
document, as heretofore mentioned, was not applicable in the circumstances
of this case because the employees at the time of their resignation from
union membership were not leaving work with the Employer. Thus, for the
employees involved herein, there was no resignation route available under
that constitution. Cf. International Union, United Automobile, Aerospace and
Agricultural Implement Workers, UA W. and its local No. 647 (General
Electric Company), 197 NL.RB 608 (1972).
and further occurring while no union-security agreement
was in effect or had become applicable, Respondent Local
1936 violated Section 8(b)(1XA) of the Act.
6. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices affecting commerce, it will be recommend-
ed that they be ordered to cease and desist therefrom and
to take certain affirmative action deemed necessary to
effectuate the policies of the Act. Inasmuch as some of the
employees paid dues or fees which I have found to have
been unlawfully required by Respondents, the affirmative
action elements of the recommended Order will require the
respective Respondent to reimburse any employee for any
back dues and/or reinstatement fees paid by him to the
respective Respondent following Respondents' letters of
January 1976 or Respondent Local 1936's oral demands in
December 1975, less rebates already paid, plus 6-percent
interest as required in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), to be computed in the manner set forth
in Seafarers International Union of North America, Great
Lakes District, AFL-CIO, 138 NLRB 1142 (1962). The
affirmative aspect of the recommended Order shall also
require the Respondents to rescind the assessments for
dues and fees unlawfully demanded from the employees
and to inform each employee by written communication of
such rescission. 7 Finally, each Respondent shall be
required to post an appropriate notice.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER I8
Respondent Locals 1936, 1933, 1940, 1939, and 1932, all
affiliated with the Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers, Express and Station
Employees, AFL-CIO, their respective officers, agents,
and representatives, shall each:
1. Cease and desist from:
(a) Threatening employees subject to a union-security
agreement authorized by Section 8(a)(3) of the Act that
their discharge will be sought if they do not pay retroactive
dues or fees.
(b) Demanding dues and fees of former members for
working for an employer after their resignation from union
I find it unnecessary to reach or pass on any other theory advanced by
the General Counsel to provide additional support for her contention that
Respondents' demands for back dues and reinstatement fees were violative
of Sec. 8(bX)(XA) of the Act.
7 General Electric Company, supra.
L1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and the recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership at a time when no such aforementioned
union-security agreement was in effect or had become
applicable.
(c) In any like or related manner restraining or coercing
employees in the exercise of their rights guaranteed by
Section (7) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Reimburse all field engineering employees, present
and former, of NCR Corporation for all dues and
reinstatement fees paid to Respondents after Respondents'
unlawful demands therefor in December 1975, or January
1976, less rebates already paid, plus interest in the manner
set forth in the "Remedy" section.
(b) Rescind the assessments for dues and fees unlawfully
charged field engineering employees of the NCR Corpora-
tion and notify each employee in Respondents' respective
jurisdiction by written communication of such rescission.
(c) Post at their respective business offices copies of the
attached notice marked "Appendix." 9 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by the appropriate
representative of the respective Respondent Local, shall be
posted by Respondents immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondents to insure that such notices are not
altered, defaced, or covered by any other material.
(d) Deliver to the Board's Regional Director for Region
14 copies of the aforesaid notice for posting by the
Employer at each of its locations involved herein, if the
Employer desires to post said notices on bulletin boards
customarily used for notices to employees at those
locations.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
19 The appropriate local number will be inserted by the Regional
Director on each notice.
In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United Slates Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to give
evidence, it has been decided that we, Local --- ,
affiliated with the Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers, Express and Station
Employees, AFL-CIO, have violated the National Labor
Relations Act and we have been ordered to post this notice.
WE WILL NOT require employees subject to a union-
security agreement authorized by Section 8(a)(3) of the
Act to pay retroactive dues or fees under threat of
discharge.
WE WILL NOT demand dues and fees from former
members because they worked for NCR Corporation
after resigning from union membership at a time when
no union-security agreement was in effect or had
become applicable.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights under
Section 7 of the Act.
WE WILL rescind all notices, found unlawful by the
National Labor Relations Board, to employees for dues
and fees demanded for working at times no such dues
or fees were required as a condition of employment.
WE WILL reimburse any present or former field
engineering employees for any retroactive dues or fees
paid by him to us after we demanded same, less rebates
already repaid, plus 6-percent interest.
LOCAL --- , AFFILIATED
WITH THE BROTHERHOOD
OF RAILWAY, AIRLINE AND
STEAMSHIP CLERKS,
FREIGHT HANDLERS,
EXPRESS AND STATION
EMPLOYEES, AFL-CIO
250