Plumbers (Brinderson-Newberg)

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 267 (N.L.R.B. 1989)

,
PLUMBERS (BRINDERSON-NEWBERG) 267
United Association of Journeymen and Apprentices
of the Plumbing and -Pipe Fitting Industry,
AFL-CIO and United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry, Local 631 and United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry, Local 44
(Brinderson-Newberg) and Michael L. Schmidt.
Case 19-CB-6259
November 21, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On a charge filed December 18, 1987, by Mi-
chael L Schmidt (the Charging Party),' the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 19,
issued a complaint and notice of hearing on Janu-
ary 29, 1988, against Respondent United Associa-
tion of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry, AFL-CIO, Re-
spondents United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting In-
dustry, Local 631, and United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe
Fitting Industry, Local 44 (collectively the Re-
spondents) The complaint alleges that the Re-
spondent violated Section 8(b)(1)(A) of the Act by
maintaining article 164(c) of the United Association
Constitution, which provides that fines and assess-
ments are payable before dues can be accepted,
while at the same time the Respondents Local 631
and Local 44 were parties to collective-bargaining
agreements that contained union-security provi-
sions Each of the Respondents filed answers to the
complaint denying the commission of any unfair
labor practice
On April 14, 1988, the General Counsel, the
Charging Party, and the Respondents filed a
motion to transfer case to the Board and stipulation
of facts in which they agreed to certain facts rele-
vant to the issues in this pfoceeding They also
agreed to waive a hearing before an administrative
law judge and the issuance of an administrative law
judge's decision On June 10, 1988, the Board ap-
proved the stipulation and transferred the proceed-
ing to the Board Thereafter, the General Counsel
and the Respondents filed briefs with the Board
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
'On January 25 1988 the Charging Party withdrew the 8(b)(2) por-
tion of the charge, with the approval of the Regional Director
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
In their answers Respondents United Association
and Local 631 admit that Bnnderson-Newberg (the
Employer) is engaged in the business of ship con-
struction and repair and does business in Bremer-
ton, Washington All three Respondents admit, by
the terms of the stipulation, that the Employer is a
State of Washington joint venture that, during the
past 12 months, in the course and conduct of its
business, has had gross sales of goods and services
in excess of $500,000 The Respondents further
admit that during the same 12-month period the
Employer caused to be transferred and delivered to
its facilities within the State of Washington goods
and materials valued in excess of $500,000 directly
from sources outside the State of Washington, or
from suppliers within the State that, in turn, ob-
tained such goods and materials directly from
sources outside the State Accordingly, the Re-
spondents admit, and we find, that the Employer is
engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6),
and (7) of the Act
In addition, by the terms of the stipulation, the
Respondents admit that at all times relevant, Local
44 maintained in effect collective-bargaining agree-
ments with various employers engaged in interstate
commerce within the meaning of Section 2(2), (6),
and (7) of the Act, including, but not limited to,
McClintock and Turk, Inc and that Local 631
similarly maintained collective-bargaining agree-
ments with employers engaged in interstate com-
merce, including Altenburg Plumbing and Heating,
Inc
II THE LABOR ORGANIZATIONS
Respondents United Association, Local 631, and
Local 44 admit, and we find, that they are labor
organizations within the meaning of Section 2(5) of
the Act
III THE UNFAIR LABOR PRACTICE
The Charging Party, Michael Schmidt, became a
member of Respondent Local 44 in January 1978
On September 2, 1986, on obtaining employment
with the Employer, Bnnderson-Newberg, Schmidt
worked under the jurisdiction of Respondent Local
631 on travel card status Schmidt has maintained
his membership in Respondent Local 44 and his
employment with the Employer at all times rele-
vant in this proceeding
297 NLRB No 36
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At no time during Schmidt's employment with
the Employer did either Respondent Local 44 or
Respondent Local 631 have in effect with Bnnder-
son-Newberg a collective-bargaining agreement
containing a union-security provision, however,
Local 44 and Local 631 each maintained collective-
bargaining agreements with at least one other statu-
tory employer, McClintock and Turk, Inc and Al-
tenburg Plumbing and Heating, Inc , respectively,
which included union-security clauses At no time
pertinent to this proceeding was Schmidt employed
by any employer who was party to a collective-
bargaining agreement with either Local 44 or
Local 631 that contained a union-secunty provi-
sion
On approximately February 23, 1987, after a
hearing held on due and proper notice under the
constitution of the Respondent United Association,
Schmidt received notice from Respondent Local
631 that he was being fined $500 for violating valid
union rules 2 Subsequently, on approximately No-
vember 23, 1987, Frank Forrest, business agent for
Local 44, wrote to Schmidt informing him that
Local 44 was not able to process dues tendered by
Schmidt because he had not yet paid the fine as-
sessed by Local 631 In so advising Schmidt, Local
44 was acting pursuant to section 164(c) of the
United Association Constitution that provides as
follows "National and Local Union assessments,
disciplinary assessments and loans are payable
before dues" None of the Respondents have taken
any action or threatened to take any action to en-
force any union-secunty provision or to interfere
with Schmidt's employment or referral rights be-
cause of his failure to pay either the fine or his
dues 3
IV THE CONTENTIONS OF THE PARTIES
The issue in this case is whether the Respondents
may maintain an unqualified provision in the Inter-
national constitution, which is applicable to all
members, specifying that fines are to be paid before
dues, while, at the same time, maintaining collec-
tive-bargaining agreements with union-security
clauses providing that the bargaining representative
can seek the discharge of an employee for nonpay-
ment of dues
The General Counsel concedes that Charging
Party Schmidt did not, at the time of the stipula-
tion of facts in this case, work under a contract
containing such a union-secunty provision and that
2 There is no Issue in this proceeding concerning the validity of the
rule or the action taken against Schmidt because of his violation of that
rule
3 The parties stipulated that the Respondents have neither taken nor
threatened to take action of this type against any member
none of the Respondents has attempted to secure
his discharge for nonpayment of the fine in ques-
tion She relies primarily on the effect of the con-
junction of the constitutional provision and union-
security clauses on employees covered by other
collective-bargaining agreements maintained by the
Respondent Locals In support of her argument
that the Respondents violated the Act, she relies
generally on the proposition that employees' jobs
are to be insulated from their organizational activi-
ties (except insofar as employees may be required
to pay dues under a union-security clause meeting
the requirements of the proviso to Section 8(a)(3)
of the Act), and more particularly on Elevator Con-
structors Local 8 (San Francisco Elevator), 243
NLRB 53 (1979), 248 NLRB 951 (1980) (order de-
nying reconsideration), enfd 665 F 2d 376 (D C
Cir 1981) She argues that the employees working
under the agreements containing the union-security
clauses could reasonably fear, if fines were imposed
on them, that they would not be allowed to satisfy
dues obligations before paying the fines and that
the Respondent Locals might then, pursuant to the
union-security clauses, seek their discharge not-
withstanding their willingness to pay dues As in
San Francisco Elevator, the General Counsel con-
tends, the fear that the conjunction of such provi-
sions reasonably tends to induce reflects an unlaw-
ful use of job-related coercion to enforce internal
union obligations The General Counsel also asserts
that Schmidt, who was working in the jurisdiction
of Local 631 on a travel card provided by Local
44, might be coerced into paying the fine by the
fear that he would otherwise be denied future re-
ferrals, but she contends that even without respect
to any coercion of Schmidt, the effect on employ-
ee-members currently working under agreements
containing union-security clauses establishes the
violation
Respondent United Association urges reconsider-
ation of the holding of San Francisco Elevator, 4 but
it also argues that the case is distinguishable In
particular, it points out that the charging party in
that case had worked under an agreement with a
union-secunty clause, whereas Charging Party
Schmidt, as noted above, did not The Association
also argues that, because there was no evidence
that Schmidt was seeking referral out of a hiring
hall at the time covered by the complaint, the Gen-
4 Respondent United Association urges that the Board reconsider that
decision on the basis that It is premised on the mistaken assumption that
the mere coexistence of a union security clause and a fines payable rule
operates to create a threatening or coercive Impact upon union mem-
bers It essentially contends that it is inappropriate to find an inherent or
implicit threat, and that only when a labor organization takes affirmative
steps toward the enforcement of the union-security provision can a find-
ing of violation be justified
PLUMBERS (BRINDERSON-NEWBERG) 269
eral Counsel cannot properly rely on Plumbers
Local 460, 287 NLRB 788 (1987), in which the
Board found the respondent union violated Section
8(b)(1)(A) of the Act by refusing to permit an em-
ployee-member to pay his dues until he had paid
up a loan and then removed him from the hiring
hall referral list because of his failure to pay the
entire indebtedness The Association contends that
Teamsters Local 980 (Neilson Freight), 249 NLRB
46 (1980), is controlling here In that case the
Board refused to affirm a finding of violation be-
cause the fines payable requirement, so far as the
record showed, was invoked only against a
member who was not working for an employer
who was party to a collective-bargaining agree-
ment containing a union-security clause In sum,
Respondent United Association argues that in the
absence of a showing of any current application of
a union-security clause to Charging Party Schmidt
or any evidence of a direct threat to his employ-
ment opportunities, no violation should be found 5
Respondent Local 44 contends that it is only a
penpheral participant in the dispute, its actions
being limited to refusing to process the Charging
Party's dues payment Local 44 maintains that the
Charging Party's employment and referral nghts
have remained unaffected throughout the events of
this proceeding Therefore, as no actions affecting
the employment of any employee have been car-
ried out, the matter is strictly an internal union
concern and inappropriate for Board intervention
V DISCUSSION
In San Francisco Elevator the Board held that the
coexistence of two provisions—a union constitu-
tional provision requiring the payment of fines and
assessments before dues and a union-security clause
in a collective-bargaining agreement—violated Sec-
tion 8(b)(1)(A) of the Act 6 In explaining the rea-
sons for its holding, the Board began with the
proposition that the general policy of the Act is
"to insulate employees' jobs from their organiza-
tional rights " 7 The Board acknowledged the ex-
ception to this principle for union-security clauses,
which use "the continuing threat of job loss to
exert pressure on an employee to maintain union
membership status" (i e, require the timely pay-
ment of dues and initiation fees under pain of
5 Respondent Local 631 submitted a statement adopting the positions
of Respondent United Association and incorporating the arguments as set
forth in its brief
'248 NLRB 951 (1980) In this opinion the Board explained its rea-
sons for denying a motion for reconsideration of its earlier decision (243
NLRB 53 (1979)), in which It adopted the administrative law judge's
finding that the respondent union violated Sec 8(b)(1)(A) through main-
tenance of its fines-before-dues rule
7 248 NLRB at 951, quoting Radio Officers v NLRB, 347 U S 17, 40
(1954)
having the union request the nonpayer's discharge),
but the Board noted that it is "well established that
threats of employment loss under union-security
provisions cannot encompass the nonpayment of
union fines or assessments " 8 In response to a dis-
senting Board Member's complaint that there was
no evidence that the fines provision posed any
threat to union members' jobs, the Board majority
explained (id)
[The union's] rule provides that dues cannot be
paid until fines and assessments have been
paid Employees, knowing that their payment
of dues is conditioned on prior payment of any
fines and assessments owed, can reasonably
assume that they must make all of those pay-
ments in order to avoid the risk that [the
union] will seek their discharge The Act does
not require them to take the risk in order to
test the validity of their assumption, nor does
it permit [the union] to threaten action indi-
rectly which it cannot threaten directly
The court of appeals on review endorsed that ra-
tionale It rejected the contention that affirmative
steps to enforce fines by employment-related sanc-
tions were required to establish the violation, find-
ing it reasonable to conclude "that a union security
clause conjoined with a fines payable bylaw may
induce unsophisticated employees to fear they will
lose their jobs if they do not pay their fines" Ele-
vator Constructors Local 8 v NLRB, 665 F 2d 376,
382 (DC Cir 1981)
We adhere to the ruling in San Francisco Eleva-
tor9 and find that the identical form of coercion
8 Ibid (footnote omitted)
9 Teamsters Local 980 (Neilsen Freight), 249 NLRB 46 (1980), relied on
by Respondents United Association and Local 631, is distinguishable In
that case, the 8(b)(1)(A) issue posed by the union's notification to an em-
ployee that It would not accept his dues until he paid his fine was re-
stricted to the employee's immediate employment with Nielsen, whose
agreement with the union did not contain a union-security clause Evi-
dence was not adduced that the union had a constitutional or bylaw pro-
vision of the kind maintained by the Respondents here, and the case was
not litigated with such a provision in mind Consequently, there was no
basis, as there is here, to look beyond the employee s employment rela-
tionship with Neilsen or to consider the effect of the provision in ques-
tion on other employees employed by employers who had union-security
agreements with the union Thus, in Neilsen Freight, the Board's reliance
on the absence of a union-security provision to distinguish San Francisco
Elevator I, was limited to the context in which only the union, the em-
ployee, and his current employer were Involved, and the holding must be
viewed in that narrow frame
Similarly, Electrical Workers IBEW Local 1547 (Rogers Electric), 245
NLRB 716 (1979), also relied on by the aforementioned Respondents, is
distinguishable There, the sole Issue was whether, on its face, a union
bylaw permitting the business manager to remove a member from a job
for not complying with union rules, violated Sec 8(b)(1)(A) The Board
found nothing in the bylaw Itself that indicated it existed for an unlawful
purpose, and the Board, without more, refused to find the bylaw per se
unlawful In the instant case, we too do not find the constitutional provi-
sion per se unlawful The illegality is established only through its coexist-
ence with a union-security agreement
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
exists in the present case for all members of either
Local 44 or Local 631 who are employed under
the collective-bargaining agreements that, as stipu-
lated, contain union-security clauses 10 Because
Schmidt did not, during the period covered by the
stipulation, work under an agreement containing
such a clause, the threat as to him is more remote,
operating only insofar as Schmidt might fear that
his next referral could place him under an agree-
ment with a union-security obligation, making it
imperative that he pay any fines in advance of the
onset of the dues obligation to protect his job But
Schmidt's role as the Charging Party is in no way
impaired by the possibility that he is not himself
within the class of coerced employees, because any
person may file a charge " On the basis of the
stipulated record, we find that the Respondents
have violated Section 8(b)(1)(A) of the Act by
maintaining a rule unconditionally requiring the
payment of fines and loans before dues," while at
the same time maintaining collective-bargaining
agreements containing union-security provisions
We will require that they cease and desist from si-
multaneously maintaining these provisions
CONCLUSIONS OF LAW
1 The Respondents are labor organizations
within the meaning of Section 2(5) of the Act
2 Bnnderson-Newberg is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act
3 The Respondents have restrained and coerced
employees in the exercise of the rights guaranteed
them by Section 7 of the Act, and thereby engaged
in, and are engaging in, unfair labor practices pro-
scribed by Section 8(b)(1)(A) of the Act by main-
taining, in conjunction with union-security clauses,
section 164(c) of the United Association Constitu-
tion that unconditionally provides "National and
Local Union assessments, disciplinary assessments
and loans are payable before dues" This unfair
labor practice affects commerce within the mean-
ing of Section 2(6) and (7) of the Act
REMEDY
Having found that the Respondents have en-
gaged in and are engaging in certain unfair labor
practices, we will require the Respondents to cease
Is Respondent Local 44 and Respondent Local 631 maintain such
agreements with, respectively, McClintock and Turk, Inc and Altenberg
Plumbing and Heating, Inc
Sec 102 9, National Labor Relations Board Rules and Regulations
and Statements of Procedure
12 As noted, the'fines-before dues clause is unconditional We do not
consider here circumstances in which such a clause is qualified by lan-
guage precluding its use in tandem with a union-security clause to affect
job tenure
and desist In order to effectuate the purposes of
the Act, we will also require the Respondents to
cease maintaining and rescind from its governing
documents section 164 (c) of the United Associa-
tion Constitution, or any similar unconditional rule,
in conjunction with collective-bargaining agree-
ments containing a union-security clause
ORDER
The National Labor Relations Board orders that
the Respondents, United Association of Journey-
men and Apprentices of the Plumbing and Pipe
Fitting Industry, AFL-CIO, Washington, D C,
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry, Local
631, Bremerton, Washington, and United Associa-
tion of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry, Local 44, Spokane,
Washington, their officers, agents, and representa-
tives, shall
1 Cease and desist from
(a) Maintaining, in conjunction with a collective-
bargaining agreement containing a union-security
clause, section 164(c) of the United Association
Constitution, which provides, without qualification,
that "National and Local Union assessments, disci-
plinary assessments and loans are payable before
dues," or any similar unconditional requirement
that fines, loans, and other assessments must be
paid before dues
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Rescind from their constitutions, bylaws, or
other governing documents section 164(c), above
quoted, and any other unconditional provision re-
quiring the payment of fines, loans, and other as-
sessments before dues insofar as such exist in con-
junction with union-security clauses in collective-
bargaining agreements or are applied in conjunc-
tion with such clauses
(b) Post in their business offices and all meeting
halls copies of the attached notice marked "Appen-
dix "13 Copies of the notice, on forms provided by
the Regional Director for Region 19, after being
signed by the Respondents' authorized representa-
tive, shall be posted by the Respondents immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading 'Posted by Order of the Nation-
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
PLUMBERS (BRINDERSON-NEWBERG) 271
where notices to members are customarily posted
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material
(c) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by Bnnder-
son-Newberg, if willing, at all places where notices
to employees are customanly posted
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply
APPENDIX
NOTICE To MEMBERS AND EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT restrain and coerce employees and
members in the exercise of rights guaranteed in
Section 7 of the National Labor Relations Act by
maintaining in conjunction with a union-security
clause section 164(c) of the United Association
Constitution that provides "National and Local
Union assessments, disciplinary assessments and
loans are payable before dues," or any similar un-
conditional constitutional provision or bylaw that
requires the payment of fines, loans, and other as-
sessments before dues
WE WILL NOT in any like or related manner re-
strain or coerce our members in the exercise of the
rights guaranteed them by Section 7 of the Act
WE WILL cease maintaining in conjunction with
union-security clauses and rescind section 164(c) of
the United Association Constitution, quoted above,
and any similar unconditional constitutional provi-
sion or bylaw requiring the payment of fines, loans,
and other assessments before dues
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUS-
TRY, AFL-CIO
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUS-
TRY, AFL-CIO, LOCAL 631
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPE FITTING INDUS-
TRY, AFL-CIO, LOCAL 44