Pacific Iron and Metal Co.

National Labor Relations Board - Board Decisions

Apr 25, 1969

175 N.L.R.B. 604 (N.L.R.B. 1969)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Iron and Metal Co. and Teamsters Local
117, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen &
Helpers of America, Independent and Pat
Davis . Cases 19-CA-3816 and 19-CB-1264
April 25, 1969
DECISION AND ORDER
On June 14, 1968, Trial Examiner E. Don Wilson
issued his Decision in the above proceeding, finding
that the Respondents had not engaged in and were
not engaging in certain alleged unfair labor practices
and recommending the dismissal thereof. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision, and a brief in support of its
exceptions, and the Respondent Employer and
Respondent Union filed briefs in support of the
Trial Examiner's Decision. The Charging Party filed
a response.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
We agree with the Trial Examiner that a
union-security agreement which is otherwise valid is
not necessarily unlawful in its maintenance or
performance merely because its terms are not in
writing. Rabouin, d/b/a Conway's Express v.
N.L.R.B., 195 F.2d 906, 910 (C.A. 2); N.L.R.B. v.
Scientific Nutrition Corp., d/b/a Capolino Packing
Corporation, 180 F.2d 447, 449 (C.A. 9). We also
agree that the present complaint be dismissed.
In so concluding, we are mindful that the
requirement of "fair dealing" owed employees under
union-security agreements "includes the duty to
inform the employee of his rights and obligations
[respecting such agreements] so that the employee
may take all necessary steps to protect his job."
IUE, Frigidaire Local 801 v. N.L.R.B., 307 F.2d
679, 683 (C.A. D.C.), cert. denied 371 U.S. 936;
Philadelphia Sheraton Corporation, 136 NLRB 888,
896, enfd. 320 F.2d 254, 258 (C.A. 3). Parties, who
would defend action taken on the basis of such oral
agreements, must therefore satisfy a stringent
burden of proof in establishing the existence and
precise terms and conditions of the agreement and
in further establishing that affected employees have
been fully and unmistakably notified thereof.
There is no question in the present case that the
employees, including Davis, were advised and fully
understood their union-security obligations under the
operative agreement. Respondents have therefore
met their burden.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBERS JENKINS and ZAGORIA, dissenting:
Unlike our colleagues, we would find that a
union-security clause must be in writing to justify an
employee's discharge.
Union-security provisions are statutorily-created
exceptions to the broader policy of the Act
forbidding discrimination against employees based
upon considerations of union membership. Needless
to say, they are of the utmost importance to
employees, since noncompliance may result in
termination of the employment relationship. Their
precise terms are also of interest to unions and
employers, who may be held liable in the event
discharges under such clauses are held to have been
improper.
Unfortunately, questions relating to union-security
agreements often involve issues of considerable legal
difficulty. The 30-day grace period required by the
Statute is sufficiently complex that it has been
subject to differing interpretations by the Board
through the years,' and there is also contained in the
Statute a "whichever is later" clause. Whether or
not a union-security requirement is lawful may
depend on whether it appears to have been imposed
retroactively," or whether it expressly denies old
nonmembers the statutory grace period.' Further, a
union-security requirement may be invalid
depending on the nature of certain preferential
provisions contained therein,' or may depend on
exactly what it requires of employees in the way of
dues, initiation fees, work permit fees , assessments,
fines, or other charges.' There are, moreover,
various degrees of union security permitted by the
Statute, such as "maintenance of membership" and
"agency shop," which may depend for their legality
on an analysis of the precise terms of the agreement
in question.
An employee called upon to live up to a
union-security agreement is not normally well-versed
in legal technicalities, nor, usually, is the personnel
manager or union agent who would be expected to
advise the employee of what is required. Numerous
possibilities for misunderstanding exist. Moreover, it
'See Al Massera , Inc, et a!., 101 NLRB 837, which was in effect
overruled by Chun King Sales, Inc., 126 NLRB 851. Thereafter, Chun
King was expressly overruled by New York State Electric & Gas Corp,
135 NLRB 357
'E g., Adams Division , LeTourneau Westinghouse Co (Indianapolis
Plant), 143 NLRB 827
'Paragon Products Corp, 134 NLRB 662, 666.
'E.g., Shreveport-Bossier Cleaners & Launderers , Inc, 124 NLRB 534
'E g, Zangerle Peterson Co., 123 NLRB 1027.
175 NLRB No. 114
PACIFIC IRON AND METAL CO.
is not unusual for employees to consult with Board
Regional personnel for an opinion as to whether a
particular union-security requirement comes within
what the Board has viewed as permissible.
Obviously, the job of interpretation is made many
times more difficult when the parties depend on
word-of-mouth for the transmission of their
union-security requirements.
Because of the drastic consequences visited upon
employees who fail to comply with union-security
provisions, and the fact that they are exceptions to
the general rule against discrimination, the Board
has consistently held that an employee must be
adequately notified of his obligation to become a
union member,' and that union-security provisions,
to be lawful, must be set forth in clear and
unmistakable language.' In our view, the minimum
that would satisfy these requirements is that an
agreement be set forth in writing. The Board has
long held that, to guard against collusion, and to
give prospective petitioners seeking to represent
employees adequate notice and protection, contracts
that are to serve as bars to a representation election
must be in writing; no less notice and protection
should be given employees who may be discharged if
they misunderstand, misconstrue, or even just forget
applicable union-security provisions.
Respondents argue that, inasmuch as Section 8(d)
of the Act requires a written contract only if either
party requests a writing, then a union-security
provision, being a part of the contract, need not be
in writing if neither party requires it. The Trial
Examiner has so' found. However, in our view,
Section 8(d), which deals with the contractual
relationship between employers and unions, is not
dispositive of matters relating to the obligation of
individual employees in relation to the union.
Though we would not find the mere existence of an
oral agreement to be unlawful, and would, in
conformity with 8(d), consider it binding and require
that it be reduced to writing upon demand by either
party, that does not, in our view, constitute an
answer to the problem posed by the proviso to
8(a)(3). We would require a reduction of the
union-security agreement to writing before the
parties may .justify discrimination against employees
based on their failure to comply with any such
alleged agreement. Relatively slight effort is
required to reduce a union-security agreement to
writing, and the advantages, of such a rule are
manifold and obvious. We believe the requirement
of a written agreement is not only consistent with
the statutory scheme, but a rule which clearly
effectuates the policies of the Act.
Accordingly, as the clause in the instant case was
an oral one, we would conclude that Davis'
'Philadelphia Sheraton Corporation, 136 NLRB 888, 896, enfd 320 F 2d
254 (C .A. 3); Local 98D, International Union of Operating Engineers,
AFL-CIO, 156 NLRB 545, 548.
'Don Juan Company , Inc, 79 NLRB 154, 156 , enfd on this point in 178
F.2d 625 , 627 (C .A. 2); Otis Elevator Company, 97 NLRB 786, 793.
605
discharge was violative of Section 8(a)(3) and (1)
and Section 8(b)(2) and (1)(A) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner: Upon charges filed
on October 2, 1967, by Pat Davis, an individual, herein
Davis, the General Counsel of the National Labor
Relations Board, herein the Board, issued a consolidated
complaint dated November 29, 1967, alleging that Pacific
Iron and Metal Co., herein the Employer and Teamsters
Local 117, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Independent, herein the Union, violated various
sections of the National Labor Relations Act, herein the
Act. Each Respondent duly made answer.
Pursuant to due notice, a hearing in this matter was
held before me on March 7, 1968, at Seattle, Washington.
General Counsel, the Employer and the Union have fully
participated and their briefs have been received and
considered. Upon the entire record' and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
The Employer, at all material times, has been a
corporation existing under the laws of the State of
Washington. In Seattle, it is engaged in processing scrap
metal and retailing fabrics and building materials. During
the past year its gross business exceeded $500,000. It
received over $50,000 in goods and materials from sellers
who obtained them from outside of Washington. At all
times material the Employer has been an employer
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
At all times material, the Union has been a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
General Counsel properly states there are two issues in
this case , one factual and the other legal. The factual issue
is whether the Union and the Employer entered into an
oral contract containing an otherwise valid union security
clause and so advised the Employer's employees. The legal
issue , assuming the existence of the oral contract, is
whether an oral union security clause may be relied upon
to discharge a member of the bargaining unit for failure
to maintain her membership in the Union. There is no
issue as to appropriateness of the unit.
B. Facts
In December 1966, the Union successfully organized
the sales personnel and cashiers in the Employer's retail
operation in Seattle, and the Employer recognized the
Union as bargaining representative, in an appropriate
'General Counsel ' s motion for judgment on the pleadings is disposed of
in the body of this decision.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit. -
In January 1967,2 the Union's secretary-treasurer,
Arnold Weinmeister, and the Employer's vice president,
Earl Giant, began bargaining , and negotiations continued
into March.'
In March, the parties agreed to a health and welfare
clause to be effective March 1, and to a wage increase to
be effective April 1, and to a union-security clause
requiring that after 31 days from the effective date of the
contract or 31 days after being employed, an employee
would have to join the Union. Weinmeister considered the
contract effective on March 1. As of March, the parties
could not agree on hours of employment but decided to
defer consideration of that until they had further data.
They considered that otherwise they had a complete
contract and proceeded to put it into effect without
reducing it to writing.° The health and welfare payments
were made as of March 1, and the wage increases went
into effect on April 1. -
In the latter part' of March, Weinmeister held a
meeting of all the Employer's employees, 12, and told
them the results of the negotiations! He told them with
respect to the union security clause that "as part of the
condition of employment that they would have to become
members of the Union on or after 30 days of the effective
date [of the contract] or the date of employment,
whichever date was the latter [sic], and maintain
membership in the Union as a condition of employment."
He further specified April 1, as the date they must acquire
membership. He told them the contract was effective on
March 1. The employees approved the oral contract by a
vote of 10 to 2.
No employee became a member before June 1, and no
action was-taken against any employee by the Union or
Employer for such failure. In June, all the employees,
including Davis, paid their initiation fees and dues and
joined the Union. Davis paid her dues through August.
She paid no further dues because the contract was not in
writing . In September, she refused to pay her dues unless
she saw a written contract. The Union notified the
Employer of Davis' delinquency and requested her
discharge. On October 2, the Employer discharged Davis
pursuant to the Union's request for failure to pay dues.
C. Concluding Findings
Section 10(b) of the Act precludes any finding that
entering into the contract in March or Weinmeister's
announcement of its terms in March, were violations of
the Act. These acts took place more than six months
before the filing of the charges on October 2.
Weinmeister's testimony, as corroborated in general by
that of Giant, establishes that the Union and the
Employer entered into an oral union-security agreement in
March which, by its terms, conformed with the
requirements of the Act. Weinmeister substantially
advised the interested employees of the requirements of
'Hereinafter, all dates refer to 1967 , unless otherwise specified.
'In making findings herein I have relied upon the testimony of Giant and
Weinmeister whom I found to be honest witnesses
'This had been their practice in other contracts between the parties,
covering other units.
'I credit Weinmeister's testimony as to what was said and done at this
meeting . I do not credit the testimony of Davis who impressed me as being
more concerned with what she considered to be her own self interest than
in testifying accurately . She was particularly concerned because there was
no written contract and I find she paid too little attention to the details of
the oral contract as given by Weinmeister.
the union-security clause in March.
Davis and the other employees were accorded more
than the required 30-day period to become members of
the Union. It was not until June that they were told they
must become members of the Union. This is when Davis
and others joined. Davis paid 3 months dues in June,
being paid up through August. She was aware that a
condition of employment was that she maintain her
membership. Her complaint was not lack of notice of this
requirement but rather with the fact that the contract was
not in writing, particularly insofar as that which had not
been agreed to, viz, hours of employment. It was for this
reason that she refused to pay her September dues.
I find Davis was discharged because she failed to pay
her September dues and thereby maintain her membership
in the Union as required by the oral contract between the
Union and the Employer. If an oral union-security clause
is legal, the Union's demand for her discharge and her
discharge by the Employer on October 2, were not illegal.
I agree with the General Counsel that clear and
unmistakable language is required in any union security
agreement that is relied upon as a defense to a discharge.
Contrary to General Counsel, I find the language of this
oral union-security provision was clear and unmistakable
as was the pronouncement of its terms by Weinmeister to
the employees in March.`
General Counsel argues that any union-security
agreement must be in writing to be a defense to a
discharge for failure to become or remain a member of
the Union. However, General Counsel concedes that the
Act does not require that a collective-bargaining
agreement be reduced to writing unless either party
demands it. Section 8(d) of the Act requires a written
contract only if either party requests a writing. A
union-security provision is part of the contract and need
not be in writing if neither party requires it.
"There is nothing in the Act which compels the
conclusion that collective bargaining contracts must be
formally attested by the parties; rather Sec. 8(d) -
specifically provides for a written agreement `if requested
by either party' - a clear evidence that writing is not
required as a matter of law."'
The terms of this union-security contract were clear and
unmistakable and valid and were communicated to Davis
and the other employees. Davis' discharge for failing to
comply with these terms was not violative of the Act nor
was the demand for such discharge. She was discharged,
and demand was made for her discharge, because she
failed to maintain her membership in the Union pursuant
to a legal union-security provision of a legal oral contract.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. The Employer has been, at all material times, an
employer engaged in commerce within the meaning of the
Act.
2. The Union has been, at all material times, a labor
organization within the meaning of the Act.
3. The record does not establish by a preponderance of
'I consider it immaterial whether Weinmeister told the employees they
had 30 or 31 days to join the Union.
'Rabovin v . N.L.R.B , 159 F.2d 906 (C.A. 2, 1952); cf. N L.R B. v.
Scientific Nutrition Corp., 180 F.2d 447 (C.A. 9).
PACIFIC IRON AND METAL CO. 607
the substantial evidence that either of or both RECOMMENDED ORDER
Respondents engaged in unfair labor practices within the
meaning of the Act or as alleged in the consolidated Upon the basis of the foregoing findings of fact and
complaint . conclusions of law, and upon the entire record in this
4. General Counsel 's motion for judgment on the proceedings , it is recommended that the Board enter an
pleadings is denied . order dismissing the consolidated complaint.