Plumbers Local 141

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1299 (N.L.R.B. 1980)

P'I.lMIlERS, LO()CAI 141
The International Union of the United Association
of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada, Local Unions Nos. 141, 229, 681
and 706 ad International Paper Company,
Southern Kraft Division. Case 15-CB-1964
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI I 0
On June 17, 1980, Administrative Law Judge
Benjamin Schlesinger issued the attached Decision
in this proceeding. Thereafter, Respondents filed
exceptions and a supporting brief, and the General
Counsel filed limited exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondents, The Interna-
tional Union of the United Association of Journey-
men and Apprentices of the Plumbing and Pipefit-
ting Industry of the United States and Canada,
Local Unions Nos. 141, 229, 681 and 706, their offi-
cers, agents, and representatives, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administratve Law Judge.
APPENDIX
NOlICE To EMPLOY ES AND MEMBERS
PosTEiD BY ORDER OF THE
NATIONA. LABOR RELATIONS BOARD
An Agency of the United States Government
WI: WIl.l NOT refuse to bargain in good
faith with International Paper Company,
Southern Kraft Division, by insisting to a
point of impasse, as a condition of reaching
any collective-bargaining agreement with In-
ternational Paper, upon the inclusion of a rep-
resentation fee clause or any other similar fee
which is a nonmandatory subject of bargaining
by virtue of any state statute enacted pursuant
to Section 14(b) of the National Labor Rela-
tions Act, as amended, proscribing such clause.
WE WIL NOT threaten to strike and/or
picket facilities of International Paper in fur-
therance of bargaining demands for inclusion
of a nonmandatory subject of bargaining in a
collective-bargaining agreement.
WE WILL NOT in any like or related manner
refuse to bargain collectively with Internation-
al Paper by insisting upon the inclusion in a
collective-bargaining agreement of provisions
or proposals not related to wages, hours, and
other terms or conditions of employment.
THE INTERNATIONAL UNION OF THE
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUS-
TRY OF THE UNITED STATES AND
CANADA
THE INTERNATIONAL UNION OF THE
UNITED ASSOCIATION OF JOURNEY-
MEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUS-
TRY OF THE UNITED STATES AND
CANADA, LOCAL UNION No. 141
THE INTERNATIONAL UNION OF THE
i We agree with the Administrative Law Judge's conclusion of law.
that Respondents violated Sec 8(b)(3) of the Act by insisting to the point
of impasse upon the inclusion (of a representation fee clause " hich i a
non-mandatory subject of bargaining by virtue of any State Statute en-
acted pursuant to Section 14(h) of the Act proscribing such clause" The
Administrative Law Judge, however, inadvertently failed to make a find-
ing commensurate with this conclusion Accordingls, we o find
252 NLRB No. 181
1299
I)F'CISI()NS ()I NA IIt)NAI I AI()R RIIA I I()NS It()ARI)
UNI'III) ASSOCIAI'ION OF1: JOURNI'Y-
MF:N ANI) APPRKIFNIICIFS OI T1 111.
PI UNMBING ANI) D I PIPI.FIIING INI)US-
TRY OF HI UNI'I'IEDI) S'iS ANDI
CANADA, LOCAL. UNION No. 229
THE INTERNAIONAl. UNION 01: IHI
UNI I1I.) ASSOCIA'ION 01: JOURNEIY-
MEN ANI) APPRFNTICFIS OF ']'HF
PILUMBIN. ANI) PIPI' ITTING INI)US-
TRY OF HE UNITI.I) STATIS ANI)
CANADA, LOCAl. UNION No. 681
THE INTIERNAT'rIONA. UNION OF HE
UNITIi) ASSOCIATION OF JOURNEY-
MEN ANI) APPRF NTICES OF THE
PIlUMBING ANI) PIPEFIITING INI)US-
TRY OF THt. UNITED) SATES ANI)
CANADA, LOCAL UNION NO. 706
DECISION
STATIMINT 01F TH CASE.
BENJAMIN SCHI.I'SING R, Administrative Law Judge:
This was heard before me in New Orleans, Louisiana, on
February 12, 1980. The unfair labor practice charge was
filed on October 20, 1977, by International Paper Com-
pany, Southern Kraft Division, and a complaint thereon
issued alleging that International Union of the United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada and its Local Unions Nos. 141, 229, 681, and
706 (referred to collectively as Respondents or individ-
ually by their respective local numbers),' insisted to the
point of impasse and conditioned the execution of any
collective-bargaining agreement upon the inclusion of a
clause requiring employees to pay to the Respondents, as
a condition of continued employment of the employees, a
"representation fee," which the General Counsel alleges
is violative of "right-to-work" laws in Arkansas, Florida,
Louisiana, and Mississippi, and have threatened to strike
and picket International Paper's Natchez, Mississippi,
plant in furtherance of their bargaining demand. Respon-
dents deny any violation of the Act, contending that the
"representation fee" may be used only for the discharge
of their obligations as representatives of employees im-
posed by the Act, and that Section 14(b) of the Act does
not authorize the four States to enact statutes prohibiting
the collection of such "representation fees" as a condi-
tion of employment.
Upon the entire record in this proceeding, 2 including
my observation of the witness and his demeanor, and the
The complaint is not completely clear that the Internatiornal is named
as a separate party Respondent However, hecause the clause contested
herein was insisted upon by the Iniernatilnal, a party to the collecive-
bargaininlg agreenetl and negoliations, because the unfair labor practice
charge named the International as well as its locals, because the attorneys
for the International were sersed w:ith all pleadings, and because full
relief would ot be afforded if the Interlational were uiot named, the In-
ternational is treated herein as a Responldent
2 Much of the esidelce presented hereill wass contained i a rittenl
stipulation of facts 11n addition, toral teslimony swas preselted by Respon-
delnts The General Counsel mosved to correct the record i ccrtaii re-
hriefs filed by the (iencral Counsel and the Respondent,
I imake the following:
FINI)IN(S ()IOF ACI
1. J URISI)IC IION
Interniational Paper is a corporation duly organized
under and existing by virtue of the laws of the State of
New York, witlh offices and facilities located in Camden,
Arkansas, Panama City, Florida, Springhill, Louisiana,
and Natchez, Mississippi, where it is engaged in the man-
ufacture, sale, and distribution of paper and related prod-
ucts During the 12 months preceding the date of the
complaint, a representative period, International Paper,
in the course and conduct of its business operation, sold
and shipped from each of its facilities, goods, and materi-
als valued in excess of $50,000 directly to points located
outside each respective State. As a consequence, I find,
as the parties have stipulated, that International Paper is
now and has been at all times material herein an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
I further find, as Respondents admit, that they are and
have been at all times material herein labor organizations
within the meaning of Section 2(5) of the Act, and have
engaged in group bargaining with International Paper as
representative of all pipefitters, their helpers, and lead-
men at the four plants-Local 706 (located at El
Dorado, Arkansas), representing the Arkansas facility;
Local 229 (located at Panama City, Florida), Florida;
Local 141 (located at Shreveport, Louisiana), Louisiana;
and Local 141 (located at Shreveport, Louisiana), Louisi-
ana, and Local 681 (located at Jackson, Mississippi), Mis-
sissippi.
II. THE AI.I.lCIEI) UNFAIR LABOR PRACTICES
A. The Facts
1. The Respondents' proposal and negotiations
All of International Paper's facilities employed less
than 50 pipefitters-the Louisiana plant employed the
largest number of employees within the bargaining unit,
46 employees; the smallest was Arkansas, with only 29
employees. Even though the plants were located in
"right-to-work" States, union membership was high, with
the most obvious exception being in Mississippi, where
Local 681's membership refused in 1974 to pay a yearly
working assessment of 2 percent of wages, over and
above monthly dues of $8.25; and membership declined
from 38 to 1, the latter being the shop steward who by
virtue of his position was not required to pay dues.
As a result of that condition3-a union which had no
paying membership, yet which was required as collec-
tive-bargaining agent to represent all of the members of
spects and, there having been no opposition interposed, the motion is
granted and the record is corrected accordingly.
' I he other Locals did not have similar problems All Ofr the 46 and 37
employces represented by Local 141. and 229. respectively, contiinued to
maitailm their membership Only two of the 29 employees represented by
l.ocal 700 refused to pay their dues.
1 3X)
PLUMBERS. LOCAL 141
the bargaining unit in negotiations and grievances-the
Respondents proposed on May 24, 1977, 4 the first nego-
tiating session for a new contract to replace the one ex-
piring on May 31, that the clause providing for the pay-
ment of union dues be amended by providing:
[F]or an administrative fee or collective bargaining
fee, for employees that elect not to be members of
the contracting unit and, for whom there are no
signed authorization checkoffs.
The administrative fee or contract or representa-
tion fee, shall be the same as to which members of
the collective bargaining unit shall be obligated to
pay under the constitution and bylaws of the bar-
gaining unit for that mill.
International Paper's representatives immediately ques-
tioned the legality of this proposal, in view of the var-
ious States' prevailing right-to-work laws. Respondents,
however argued the fairness of their proposal, explaining
that the Locals had a legal obligation to fairly represent
all members of the bargaining unit, both dues-paying and
nonmembers, and that particularly Local 681 had a finan-
cial obligation which it could not otherwise meet.
Negotiations continued in July and, by August, all the
Respondents' initial proposals had been thoroughly nego-
tiated, and agreement had been reached, save for the
questioned "representation fee" proposal, and negotia-
tions continued until December 8, when the parties final-
ly executed an agreement, effective retroactively to June
I and expiring by its terms on May 31, 1979, covering all
of the terms and provisions of employment. The parties,
by separate stipulation, left the question of the legality of
the "representation fee" proposal for resolution in this
proceeding.
In the meantime, on or about August 12, the Respon-
dents amended their initial demand for a "representation
fee," proposing as follows:
Each employee covered by this agreement and
represented in collective bargaining by the union,
who is not now or who at anytime fails to become
and remain a member of the union shall after 30
days and within 60 days after the date or this agree-
ment or the date he drops out of the union, either
directly or througl assigned check-off pay a pro
rata service fee to the union which shall be less than
monthly union dues to cover the cost of representa-
tion by the union. This fee shall be paid on a
monthly basis and shall not in any way entitle the
employees to the benefits and emoluments or sub-
ject him to the requirements of union membership.
The above clause shall apply to all employees hired
while this agreement is in effect.
Employees who are union members in good
standing shall not be required to make this payment.
The Employer agrees that any employee who fails
to pay timely within 5 days after the first of each
month the monthly pro rata service fee shall be ter-
minated by the company from his employment upon
4 All date, refer to the e ar 1477, unl,,. oilherite ated
10 days written notice given to said employee and
to the company by the union.
This proposal constituted a change from the May 24
proposal, which required nonmembers to pay an amount
equal to union dues, to a "pro rata service fee . . . which
shall be less than monthly union dues." Harry Rosenthal,
Local 681's business manager, explained that this fee
amounted to only the 2 percent working assessment
which was part of Local 681's dues. Although the other
three Locals had no significant problem with depletion
of their membership and payment of expenses incurred in
representing them, both Locals 191 and 706 explained
that the representation fee they sought was the same as
their members' dues.
Finally, by letter dated September 19, the Respon-
dents' proposal was further refined, as follows:
The cost and expenses of representing all mem-
bers of the bargaining unit, without regard to union
affiliation or lack of same, must be borne by all bar-
gaining unit employees.
All bargaining unit employees who voluntarily
choose to become members of the union shall be re-
quired to pay periodic dues, initiation fees and as-
sessments uniformly required as a condition of ac-
quiring or retaining union membership.
Those unit employees who voluntarily choose
not to become union members shall be required to
contribute a pro rata share of the costs and expenses
incurred by the union that are directly related to
enforcing and servicing the collective bargaining
agreement. The representation fee will apply only
when a collective bargaining agreement is in effect.
Furthermore, in no case will the fee exceed the
dues and assessments required of union members.
Failure of any permanent employee to make pay-
ment of the representation fee each month and to
maintain the payments during employment under
this agreement shall constitute grounds for dismissal
after ten (10) days written notice to the employee
and the company.
The amount of the representation fee will be
based upon an independent audit to determine those
services performed by the union directly related to
the collective bargaining process. Upon receipt of
the results of the audit the company will begin ef-
fective the following payroll period to check off the
representation fee. The first payment will be due 31
days after the effective date of the agreement.
This clause will be effective in all states where
subdivision (A) is prohibited by law. 5
On September 28, International Paper rejected the Re-
spondents' proposal, stating that: "Settled legal authority
makes it clear that in the states of Arkansas, Louisiana,
Florida and Mississippi all such clauses are versions of
' Suhdi..islon (A) cntained a uion-shop agreement, requiring permna-
nent cnlploy)c, t) hbeotnle members if the "Unin" (dscribed as the In-
ternalilnal and all four I.ocals not earlier han the 11,! dax anid noil lalter
than the 371h da fiIlhI he beginning t i of their cmnplosmenl. or he
effctlle date if I he agreeenlt ll. "I\ h.r er ii litr
1301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agency stop clauses and hence prohibited by the Right-
To-Work laws of those states." Further negotiations in
October to resolve the dispute proved unsuccessful, and
by letter dated October 17, Respondents gave notice of
their intent to terminate the agreement because Interna-
tional paper refused "to meet and bargain further or
agree to a proposed representation fee." Respondents
further advised that picketing would commence at the
Mississippi plant on October 31. Upon receipt of Respon-
dents' letter, or shortly after, International Paper filed
the charge herein.
B. Discussion
The General Counsel contends that the proposed "rep-
resentation fee" clause is a nonmandatory subject of col-
lective bargaining and, as such, Respondents were not
permitted to bargain upon it to impasse by virtue of
State statutes 6 or constitutional provisions 7 enacted
under the authority of Section 14(b) of the Act8 Respon-
dents defend on the ground that Section 14(b) of the Act
does not authorize States to prohibit the collection or as-
sessment of necessary fees, expenses, or costs from non-
union employees for the maintenance of legal obligations
6 The relevant statutes are as follows:
Arkansas Stat. Ann. §§81-201 through 81-205, entitled "Right to Em-
ployment." §81 202 reads:
Affiliation with or failure to join union as condition of employment
prohibited-No person shall be denied employment because of mem-
bership in, or affiliation with, a labor union; nor shall any person he
denied employment because of failure or refusal to join or affiliate
with a labor union; nor shall any person, unless he shall voluntarily
consent in writing to do so, be compelled to pay dues, or any other
monetary consideration to any labor organization as a prerequisite
to. or condition of. or continuance of, employment.
Louisiana Rev. Slat. Ann. §23:981-987 (West) Secs 983 and 984 state:
Sec. 983 Freedom of choice. -No person shall be required, as a con-
dition of, employment, to become or remain a member of any labor
organization, or to pay any dues, fees, assessments, or other charges
of any kind to a labor organization
Sec 984. Certain agreements declared illegal.Any agreement, un-
derstanding or practice. written or oral, implied or expressed, be-
tween any employer and any labor organization in violation of the
provisions of this Act is hereby declared Io be ulawful, null and
void, and ,of no legal effect
' On June 22. 1960, the right-to-work amendment to Art VII of the
Mississippi State Constitution went into effect by the adoption of Miss.
Code Ann 198-A, which reads in pertinent part as follows
Sec 198 A No employer shall require any person, as a condi-
tion of employment or continuation of employment, to pay any dues,
fees or other charges of any kind to any labor unionl or labor organi-
zat ion.
Art. I. Sec 6. of the constitution of the State of Florida provides that
the right of persons to work shall not be denied or abridgedl otl account
of membership or nonmembership in a labor organization. The State Su-
preme Court has held that the constitution forbids agency-shop clauses or
agreements Schermerhorn . Local 1625. Retail Clerk, 19 So.2d 269
(1962). affd 373 U S 746 (19631) In Florida Eductrion .soiation/United
v. Public Employees Relations Commission, 346 So 2d 551 (Ist )iq Fla
1971). an intermediate appellate court held that a "fair share fee for er-
vices" pros ision similar to the representation fee involved herein is an
agency-shop provision within the meaning of Schermerhorn and, accord-
ingly. is prohibited by the constitution of Florida.
Sec 14(h) provides
(b) Nothing in this Act shall he construed as authorizing the ex-
ecution or application of agreemenits requiriig membership in a labor
organizalon as a condition or employmenr t il any State or Territory
in which such execution or application is prohibited by Stlate or Icr-
rilorial ls
imposed on the Respondents by virtue of their duty to
bargain collectively for and fairly represent all employ-
ees within the bargaining unit.
1. Section 8(a)(3)
No party argues that the proposed clause violates Sec-
tion 8(a)(3) of the Act,9 which makes it illegal for an em-
ployer to discriminate against employees "to encourage
or discourage membership in any labor organization."
Indeed, Respondents, without discussing the matter in
their brief, assume the legality of their proposal under
Federal law, while arguing that the proposed "represen-
tation fee" clause does not require membership in a
union and thus does not clash with the literal language of
Section 14(b) permitting the States to prohibit agree-
ments which require such membership.
It is clear that the Respondents' proposal is, as a
matter of law, permitted by Section 8(a)(3). The Su-
preme Court, in N.L.R.B. v. General Motors Corp., 373
U.S. 734 (1963), held that an agency shop, which does
not reqire membership in a labor organization, but rather
requires payment of initiation fees and dues equal to that
of members, to be nonviolative of Section 8(a)(3). In so
doing, the Supreme Court found the agency shop pro-
posed in General Motors to be the "practical equivalent"
of membership. (373 U.S. at 743.) The respondent there
further contended that, because the union's proposal did
not require actual membership in a union, but only that
fees and dues had to be paid, the clause was not saved
by the 8(a)(3) proviso. The Court answered, 373 U.S. at
742-743:
This position, of course, would reject administrative
decisions concerning the scope of §8(3) of the
Wagner Act, e.g., Public Service Co. of Colorado,
supra [89 NLRB 418 (1950)], reaffirmed by the
Board under the Taft-Hartley amendments, Ameri-
'Sec 8(a)(3) provides that it shall be an unfair labor practice for an
employer:
(3) by discrimination in regard to hire or tenure of employment or
any terrim or condition of employment to encourage or discourage
membership in any labor organization: Provided. That nothing in this
Act. or in any other statute of the United States, shall preclude an
employer from making an agreement with a labor orgaiization (not
established. maintained, or assisted by any action defined in section
8(a) of this Act as an unfair labor practice) to require as a condition
of employment membership therein on or after the thirtieth day fol-
lowing the beginning of such employment or the effective date of
such agreement, whichever is the later, (i) if such labor organization
is the representative of the employees as provided in section 9(a) in
the appropriate collective-bargaining unit covered by such agree-
ment whe made. and (ii) unless following an election held as pro-
vided il section 9(e) within one year preceding the effective date of
such agreement, the Board shall have certified that at least a major-
ily of the employees eligible to vote in such election have oted to
rcscind the authority of such labor organizatin to make such an
agreement Provided further, That no employer shall justify any dis-
crimination against an employee for nonmembership in a labor orga-
nlzation (A) if he has reasonable grounds fir believing that such
menmbership was rt available to the employee on the same terms
and clnditions generally applicable to other members. r (B) if he
has reasonable grounds fior believing that membership was denied or
terminated for reasons other than the failure of the employee to
tender the periodic dues and the initiation fees uniformly required as
a condltioll of acquiring or retaing membership
1302
PLUMBERS. LOCAL 141
can Seating Co., 98 NLRB 800.8 Moreover, the 1947
amendments not only abolished the closed shop but
also made significant alterations in the meaning of
"membership" for the purposes of union-security
contracts. Under the second proviso to §8(a)(3), the
burdens of membership upon which employment
may be conditioned are expressly limited to the pay-
ment of initiation fees and monthly dues. It is per-
missible to condition employment upon member-
ship, but membership, insofar as it has significance
to employment rights, may in turn be conditioned
only upon payment of fees and dues. "Membership"
as a condition of employment is whittled down to
its financial core. This Court has said as much
before in Radio Officers' Union v. Labor Board, 347
U.S. 17, 41:
This legislative history clearly indicates that
Congress intended to prevent utilization of union
security agreements for any purpose other than
to compel payment of union dues and fees. Thus
Congress recognized the validity of unions' con-
cern about "free riders," i.e., employees who re-
ceive the benefits of union representation but are
unwilling to contribute their fair share of finan-
cial support to such union, and gave unions the
power to contract to meet that problem while
withholding from unions the power to cause the
discharge of employees for any other reason.
* In that case. the Board slated
As to the requirement in paragraph 4 that religious objectors
who do not become members pay to the Intervenor sums
equivalent to dues, the Board has ruled that closed-shop agree-
ments providing for "support money" payments did not iolale
the proviso to Section 8(3) of the Wagner Act As the precise
language of the 8(3) proviso in the Wagner Act was continued
in the amended Act with certain added qualifications not perti-
nent here, and because the legislative history of the amended
Act indicates that Congress intended not to illegalize the prac-
tice of obtaining support payments from nonunion members
who would otherwise be "free riders," we find that the prosi-
sion for support payments in the instant contract does not
exceed the union-security agreements authorized by the Act 98
NLRB, at 802
In Algoma Plywood & Veneer Co. v. Wisconsin Employ-
ment Relations Board, 336 U.S. 301, 307 (1949), a pre-
Taft-Hartley Act case involving the validity of a mainte-
nance-of-membership agreement under the then Section
8(3), the Supreme Court stated that that section "merely
disclaims a national policy hostile to the closed shop or
other forms of union-security agreement." (Emphasis
supplied.) The Board long since has construed the provi-
so as shielding from an unfair labor practice charge less
severe forms of union-security arrangements. See, for ex-
ample, M. & J. Tracy, Inc., 12 NLRB 916, 931-934
(1939); J. E. Pearce Contracting and Stevedoring Company.
Inc., 20 NLRB 1061, 1070-73 (1940). The Supreme
Court added, in General Motors, 373 U.S. at 741, that:
There is much to be said for the Board's view that,
if Congress desired in the Wagner Act to permit a
closed or union shop and in the Taft-Hartley Act
the uniont shop, then it also intended to preserve the
status of less vigorous, less compulsory contracts
which demanded less adherence to the union.
I conclude that the "representation fee" clause, de-
manding less adherence to the Respondents, is not the
type of "compulsory unionism" or "union security" Con-
gress sought to outlaw and is therefore permissible under
Section 8(a)(3).
2. Permissive or mandatory subject of bargaining
Section 8(d) of the Act requires that an employer and
union representing its employees must "bargain collec-
tively . . . with respect to wages, hours, and other terms
and conditions of employment." The Board has long
held that "union security" is a condition of employment.
The Andrew Jergens Company, 76 NLRB 363 (1948),
enfd. 175 F.2d 130 (9th Cir. 1949), cert. denied 338 U.S.
827 (1949). The "representation fee" proposal in issue is
a type of union-security device that conditions continu-
ing employment upon regular tender of such fee. I con-
clude, without considering the effect of the various State
laws, that the representation fee clause is a mandatory
subject of bargaining within the meaning of Section 8(d).
3. State laws enacted pursuant to Section 14(b)
Even though the particular "representation fee" clause
is lawful under Section 8(a)(3), the General Counsel
urges that such clause is still unlawful by virtue of either
state statute or constitutional provision in each of the
States in which the collective-bargaining agreement
would apply. The agreement would be applicable at Re-
spondent's facilities in Arkansas, Florida, Louisiana, and
Mississippi, States in which right-to-work laws have been
enacted.
Arkansas, Louisiana, and Mississippi have in effect
statutes which expressly prohibit agreements which re-
quire nonunion members to pay dues, fees, assessments,
or any other form of monetary consideration to any kind
of labor organization as a condition of employment.
Clearly, in these States, any fee such as one proposed by
Respondents is prohibited. Florida's constitutional provi-
sion, although not specifically outlawing any required
payments to a labor organization, has been construed to
prohibit both the agency shop and a "fair share" require-
ment,' ° equivalent to the pro rata share requirement pro-
posed by Respondents. I agree with the General Counsel
that the proposed "representation fee" clause is violative
of state laws enacted pursuant to Section 14(b), in each
of the States involved.
Turning to Respondents' claim that Section 14(b) of
the Act does not authorize the States to pass laws which
prohibit the collection of an amount based solely on the
labor organization's cost of servicing bargaining unit em-
ployees, the answer is less apparent. In Retail Clerks In-
ternational Association, Local 1625 [Food Fair Stores] v.
Schermerhorn, 373 U.S. 746 (1963), the union and em-
"' See fn 7. upra
R spondein tl s do not suggest a clintrar result Cf 'nrted SIellmrA-
,r i, -rt(iu .41.-CI)0. and Unltnd i n , od r', ori i f. 4n-ricu, I.ocal 4102
r( ariptOti lilmndr hisioi Midlurnd Roc (Corporatin), 19 NRIt 153
(1172)
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer had agreed upon a provision requiring all employ-
ees who chose not to join the union to pay to the union,
as a condition of employment, an initial service fee and
monthly service fees for the purpose of aiding the union
in defraying costs in connection with its legal obligations
and responsibilities as the exclusive bargaining agent.
The service fee was "admittedly the exact equal of mem-
bership initiation fees and monthly dues," 373 U.S. at
753, and the Court found that there was no difference
between the clause in dispute, which it found to fall
within the purview of Florida's "right-to-work" constitu-
tional provision and thus illegal, and the agency-shop
clause in General Motors, which it found legal under Sec-
tion 8(a)(3) of the Act.
The more difficult question presented herein is the re-
lationship between Sections 8(a)(3) and 14(b), a matter
left open in Retail Clerks v. Schermerhorn, 373 U.S. at
751-752, where the Court wrote:
. . 14(b) was designed to prevent other sections of
the Act from completely extinguishing state power
over certain union-security arrangements. And it
was the proviso to §8(a)(3), expressly permitting
agreements conditioning employment upon member-
ship in a labor union, which Congress feared might
have this result. It was desired to "make certain"
that §8(a)(3) could not "be said to authorize ar-
rangements of this sort in States where such ar-
rangements were contrary to the State policy."
H.R. Conf. Rep. No. 510, 80th Cong., Ist Sess. 60, 1
Leg. Hist. LMRA 564.
The connection between the §8(a)(3) proviso and
§14(b) is clear. Whether they are perfectly coinci-
dent, we need not now decide, but unquestionably
they overlap to some extent. At the very least, the
agreements requiring "membership" in a labor
union which are expressly permitted by the proviso
are the same "membership" agreements expressly
placed within the reach of state law by §14(b). It
follows that the General Motors case rules this one,
for we there held that the "agency shop" arrange-
ment involved here-which imposes on employees
the only membership obligation enforceable under
§8(a)(3) by discharge, namely, the obligation to pay
initiation fees and regular dues-is the "practical
equivalent" of an "agreement requiring membership
in a labor organization as a condition of employ-
ment." Whatever may be the status of less stringent
union-security arrangements, the agency shop is
within §14(b). At least to that extent did Congress
intend §8(a)(3) and §14(b) to coincide.
The issue herein, then, is whether Sections 14(b) and
8(a)(3) are coincident to the extent that even a service-
fee clause requiring a nonmember to pay to the Respon-
dents less than normal dues, 12 may be barred by the
12 II is unclear what amount nonmember employees 'would he required
to pay At the bargaining table, Rosenthal maintained that they would
pay 2 percent of their earnings, an amount which exceeded Rsenlhal's
computations, apparently prepared for this proceeding and never dis-
cussed at the bargaining table, of he pro rata share due under the Sep-
tember 19 proposal 'IT'o f the other locals merely taled hat their ser-
state statutes and constitutional provisions. The answer,
in turn, depends upon what Congress meant by the
terms, "union security" and "compulsory unionism,"
which Congress in 1947 sought to remove entirely from
Federal preemption and to permit as subjects of state
action.
The 1947 amendments, known as the Taft-Hartley Act,
had their genesis in H.R. 3020, introduced by Represen-
tative Hartley in the 80th Congress, First Session. In rel-
evant part, H.R. 3020 banned the closed-shop provisions
(by which all employees must be members of a union in
order to obtain employment) but permitted voluntarily
agreed-upon union-shop provisions (in which employees
must join a union after 30 days of employment) only if
the employees had selected the union by secret ballot
and if a majority of the employees had authorized the
union to enter into such an agreement. No strike was
permitted to compel such agreement, which in any event
might be entered into only "if the agreement is not pro-
hibited by State law." H. Rept. 245, 80th Cong., Ist sess.
9, I Leg. Hist. LMRA 300.
In its "Analysis of Provisions," the Report noted that:
"While the bill abolishes the closed shop, it permits . . .
such forms of compulsory unionism as the union shop
and maintenance of membership." However, those agree-
ments are valid "only if they are valid under the laws of
any State in which they are to be performed," and by
the predecessor to Section 14(b) as enacted, "the United
States expressly declares the subject of compulsory un-
ionism one that the States may regulate concurrently
with the United States . . . notwithstanding that the State
laws limit compulsory unionism more drastically than does
Federal law." H. Rept. 245, p. 34, I Leg. Hist. LMRA
325. (Emphasis supplied.)
Similarly, Senate Committee Report No. 105 recog-
nized, page 6, 1 Leg. Hist. LMRA 412, that in 1935,
when Congress reported the bill which became the Na-
tional Labor Relations Act, Congress "made clear that
the proviso in Section 8(3) [the predecessor to Section
8(a)(3)] was not intended to override State laws regulat-
ing closed shops." Senator Taft, presenting the Senate
Conference Report during open Senate debate, noted
that a new subsection had been added to Section 14,
namely, Section 13(b), to make it "perfectly clear that
nothing in tne act is to be construed as authorizing com-
pulsory union-membership agreements, in States where
the execution or enforcement of such agreements would
be contrary to State law," adding that many States had
enacted laws or adopted constitutional provisions "to
make all forms of compulsory unionism in such States il-
legal" and that it was not the intent to deprive the States
of such power. 93 Cong. Rec. 6602, 11 Leg. Hist. LMRA
1543.
When the House Conference reported on Section
14(b), H.R. Conf. Rept. 510, p. 60, 1 Leg. Hist. LMRA
569, it noted that it had included a new Section 13 (its
vice fee was the equivalent of membership dues he posture assumed by
these to l.ocals was contrary to the teaching of Retail Clerk. v Srher-
rierhorn tioweseer, the complaint places at issue only the validity iof the
last of Respondent's proposals and des not rely n the bargaining histo-
ry; and I limit this )ecisi on ti, that issue
1304
'PLUMBIlRS, O(CAI. 141
predecessor to Section 14(b)) "to assure that nothing in
the act was to be construed as authorizing ay closed
shop, union shop, maintenance of membership, or other
form of compulsory unionism agreement in any Sate
where the execution of such agreement would he con-
trary to State law." It added: "It was never the intention
of the National Labor Relations Act . . . to deprive the
States of their powers to prevent compulsory unionism.
. . . To make certain that there should be no question
about this," the Conference agreement noted that Section
14(b) "contains a provision having the same effect."
H. 3020, as amended in conference, finally passed both
Houses of Congress, but President Truman vetoed the
bill on June 20, 1947, noting with reference to Section
14(b) that:
[I]n one important area the bill expressly abandons
the principle of uniform application of national
policy under federal law. The bill's stated policy of
preserving some degree of union security would be
abdicated in all States where more restrictive poli-
cies exist. In other respects the bill makes clear that
Federal policy would govern insofar as activities af-
fecting commerce are concerned. This is not only
an invitation to the States to distort national policy
as they see fit, but is a complete forsaking of a long-
standing constitutional principle. [93 Cong. Rec.
7503, Leg. Hist. LMRA 920-921.1
It thus appears that both proponents and opponents
fully understood that the scope of Section 14(b) granted
to the States the power to enact legislation covering the
breadth of compulsory unionism. Union security would
be "abdicated in all States where more restrictive poli-
cies exist." "[O]ther form[s] of compulsory unionism," in
addition to closed shops, union shops, and maintenance
of membership, could be contrary to State law; and "all
forms of compulsory unionism" could be made illegal.
Indeed, Congress was aware that by 1947, 12 States had
made compulsory union agreements illegal and in 14
other States, proposals for abolishing such contracts
were then pending. S. Rept. 1155 p. 6, 1 Leg. Hist.
LMRA 912; H. Rept. 295, p. 39, 1 Leg. Hist. LMRA
325. Included in the 12 States were Arkansas, involved
herein; Georgia, GA. Code Ann. 59-909; and Tennessee,
Tenn. Code Ann. §50-210-each of which had legislated
against any payment to a union by an employee as a con-
dition of his employment. There is nothing to demon-
strate that such a broad prohibition by States had not
been contemplated by Congress when it enacted Section
I I(b) of the Act.
Union security and compulsory unionism have as their
object a forced adherence of an employee to the
union. :1 The Respondents herein sought pro rata pay-
ments to them as a condition of employment of non-
members. That was as much a "financial core" of com-
pulsory unionism to nonmembers, N.L.R.B. v. General
I Union-security clauses have heeil defined as "[clontract prosisllms,
requiring emphlyees II bectme or remain union members under certaain
circumstances, or to pay the union a fee for sersving as their bargaining
agent." Bureau of National Affairs. Labohr Rauti,,v '.rpeditor, p 835
( 180)
.Motor' Corp., 373 U.S. at 742, as was payment i f full
tlues and initiatlion fees by Respondents' metubers. I
Respondents' argumllent t- that their "representation
fee" clause is valid because such fees are necessary for
them to meet their duty to fairly represent all employees,
both union members and nonmembers-misses the point.
It is entirely accurate, as Respondents contend, that the
Supreme Court has often rioted the paramount impor-
tance of the duty of fair representation to the Federal
labor law, Vaca v. Slpes, 386 U.S. 171 (1967); Internation-
al .4A.ociation o Machinists v. S.B. Street, 367 U.S. 470
(1961); and that meeting this duty often entails "expendi-
lure of much time and money." Ab.ood v. Detroit Board of
Education, 931 U.S. 209, 221 (1977).
If the Congress was unaware of the duty of fair repre-
sentation, it certainly knew that in the absence of union-
security provisions, "many employees sharing the bene-
fits of what unions are able to accomplish by collective
bargaining will refuse to pay their share of the cost."
However, even with the knowledge that unions have a
duty to bargain under Section 8(b)(3) of the Act, the
Congress compromised the issue of permissible union-se-
curity provisions under the Act.
As noted, supra, the amendment to Section 8(a)(3) was
intended to remedy serious abuses of the closed shop
while permitting the elimination of "free riders" after 30
days' employment. "As far as the federal law was con-
cerned, all employees could be required to pay their
way." AL.R.B. v. General Motors Corp., 373 U.S. at 741.
However, the cession to the States of power to enact
their own legislation limiting "compulsory unionism
more drastically then does Federal law" was a deliberate
judgment of Congress to permit the States to make their
own judgment on the issue of "free riders."
I do not suggest that there is no justification for the
Respondents' "free rider" argument. Not only are Re-
spondents required to render services to all employees, at
great expense, but, also, if they do not render such ser-
vices, they may be held liable for damages. Yet, I recog-
nize that under this Decision, in the four States, they
have no power to force the employees who reap the
benefits of representation to contribute their fair share to
enable Respondents to perform the functions they are le-
gally required to perform.
However, Respondents fail to recognize that they
became the exclusive collective-bargaining representative
not because of any inherent and inalienable right, rather,
" Respondents' contentions raise the additional question of whether a
"representation fee" clause may he declared valid solely because a union
does not expend the equivalent of members' dues There are many times
that a union is so inxs lved in lengthy negotiations, critical grievances.
and litigation that it must expend moneys in excess of its dues receipts
Query, whether a "representation fee" clause, valid under Resplondents'
analysis because their expenses were less than dues, becomes invalid once
expenses approach ~or exceed members' dues so that the effect of the
clause "is the same as the General Mtors agency shop arrangement "
Retadl Cle(rk v Schermerhrn, 373 U S at 754 Indeed, under Respon-
denis' proposal, which states hat "in no case will the fee exceed the dues
and assessments required of unlitil members," there is the possihilily that
r nonmember m;y hlose mphly mrinl because he did not pay more than
"periildic dues and iniliation fees." the limit permitted by Section
8(a)(3) Prh's liil and Engineering (o., III NLR B 853 (1955), enfd
231 2d (7th Cir 1956), cert. dellied 352 S 833 (1956)
13015
DECISIONS OF: NATI()NAI. I.ABOR RI.ATI()NS BO()ARI)
their status was determined by the exercise by Interna-
tional Paper's employees of their right to self-organiza-
tion under Section 7 of the Act. If those employees
sought Respondents' aid as exclusive representative, but
withheld financial support so that Respondents could not
afford to carry out their legal responsibilities, except at
their own expense, then Respondents might merely dis-
claim any interest in representing those employees.
Obviously, the "right-to-work" laws merely make
more difficult a union's task of ensuring the adherence of
employees, because their jobs may not be jeopardized if
they refuse such financial support. This is not to say that,
under Federal law, in non- "right-to-work" States, the
same situation may not apply. The first proviso to Sec-
tion 8(a)(3) permits employees to rescind the authority of
a labor organization to enter into a union-security clause,
and, if the employees do so, a labor organization is
placed on the same dilemma that it always faces in a
"right-to-work" State-where to obtain sufficient assets
to pay for its obligations. That is the practical problem
Respondents pose in this proceeding; but it is a problem
previously considered by Congress and rejected.
Although the issue presented in this proceeding has
never been decided by the Board, two related decisions
lend support to the conclusion I have reached. In Hughes
Tool Company, 104 NLRB 318 (1953), a union in a
"right-to-work" State attempted to protect the dues paid
by its members by charging nonmembers a service fee
for pursuing grievances and arbitration. The Board
wrote at 329:
The Independent is barred, by the law of the State
of Texas, from obtaining compulsory membership.
We do not believe that, in the alternative, it may re-
quire a fee from nonmember employees for services
which are due the latter as a matter of right. By
adopting such a procedure, the Independent has. in
effect, taken the position that it will only represent
its members in the important area of contract ad-
ministration.
In International Association of Machinists and Aerospace
Workers, Local Union No. 697, AFL-CIO (The H. O.
Canfield Rubber Company of Virginia, Inc.), 223 NLRB
832 (1976), the union was charged with a violation of
Section 8(b)(l)(A) for failing and refusing to arbitrate
grievances of a nonmember unless the employee paid the
cost of arbitration. The union contended that doing so
was reasonable and necessary to protect dues paid by its
members from being eroded by expenditures to protect
nonmembers and argued that it must be able to protect
itself from "free riders." The Board concluded that the
union, "by charging only nonmembers for grievance rep-
resentation, has discriminated against nonmembers. We
further find that a grievance procedure is vital to collec-
tive bargaining and that grievance representation is due
employees as a matter of right." To discriminate against
nonmembers by charging them for what is due them by
right restrains them in the exercise of their statutory
rights." (223 NLRB at 835.)
Faced with these decisions, Respondents argue merely
that they are incorrect and should be summarily re-
versed. That argument, of course, is more properly ad-
dressed to the Board, since the powers of an administra-
tive law judge are limited "to apply established Board
precedent which the Board or the Supreme Court has
not reversed." See, e.g., Capitol Foods, Inc. d/b/a
Schulte's IGA Foodliner, 241 NLRB 855 (1979). Applying
Board law, I conclude that Respondents' "representation
fee" clause would permit them to charge for grievances
and for collective bargaining which is due nonmember
employees as a matter of right and would violate Section
8(b)(1)(A) of the Act. The clause is, therefore, a nonman-
datory subject of bargaining, and Respondents violated
Section 8(b)(3) by insisting upon its inclusion in a collec-
tive-bargaining agreement.
III. 'ITHE I:FlECT OFl IHE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents, set forth in section II,
above, occurring in connection with International
Paper's operations, described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCIUSIONS OF LAW
1. The Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
2. International Paper is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
3. By refusing to bargain in good faith with Interna-
tional Paper by insisting to a point of impasse, as a con-
dition of reaching any collective-bargaining agreement
with International Paper, upon the inclusion of a repre-
sentation fee clause or any other similar fee which is a
nonmandatory subject of bargaining by virtue of any
State statute enacted pursuant to Section 14(b) of the Act
proscribing such clause and by threatening to strike and/
or picket facilities of International Paper in furtherance
of bargaining demands for inclusion of a nonmandatory
subject of bargaining in a collective-bargaining agree-
ment, Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section
8(b)(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(b) and (7) of the Act.
THE REMEDY
Having found that the Respondents violated Section
8(b)(3) of the Act, I shall order the Respondents to cease
and desist therefrom.
Normally, I would also recommend that Respondents
affirmatively bargain in good faith. However, the Gener-
al Counsel has not requested such relief, which, I agree,
is unwarranted because none of International Paper's
four facilities are presently represented by Respondents,
as a result of sales, change of operations, or decertifica-
tions. No party claims, however, that this proceeding is
moot; all of Respondents are still viable organizations,
1306
PI.UMBERS, LOCAL 141
and International Paper still operates its Arkansas and
Mississippi facilities. A notice to employees will, there-
fore, serve an important function in effectuating the pur-
poses of the Act. i
Upon the basis of the entire record, the findings of
fact, and the conclusions of law, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER '
The Respondents, the International Union of the
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, and Local Unions Nos. 141, 229, 681,
and 706, their officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with International
Paper Company, Southern Kraft Division, by insisting to
a point of impasse, as a condition of reaching any collec-
tive-bargaining agreement with International Paper, upon
the inclusion of a representation-fee clause or any other
similar fee which is a nonmandatory subject of bargain-
ing by virtue of any state statute enacted pursuant to
Section 14(b) of the Act proscribing such clause.
' International Paper has another facility at Vicksburg Mississippi
The employees are represented by the International and its Local Union
No. 619. A similar issue has been raised in collective-bargaining negolia-
lions there. and the parties entered into an agreement covering all terms
and conditions of employment, but preserved the demand for a "repre
sentation fee" pending the outcome of this proceeding
Ie In the event no exceptions are filed as provided by Sec 102 4 of
the Rules and Regulations of the National l.abor Relations Board the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations, he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
(b) Threatening to strike and/or picket facilities of In-
ternational Paper in furtherance of bargaining demands
for inclusion of a nonmandatory subject of bargaining in
a collective-bargaining agreement.
(c) In any like or related manner refusing to bargain
collectively with International Paper by insisting upon
the inclusion in a collective-bargaining agreement of pro-
visions or proposals not related to wages, hours. and
other terms or conditions of employment.
2. Take the following affirmative action to remedy the
unfair labor practices found herein and to effectuate the
policies of the Act:
(a) Post at Respondents' business offices and meeting
halls, copies of the attached notice marked "Appen-
dix."" Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly signed
by Respondents' representatives, shall be posted by Re-
spondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, at the International's and each
Local's office, including all places where notices to em-
ployees and members are customarily posted. Reasonable
steps shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Sign and mail to the Regional Director for Region
15, sufficient copies of said notice, on forms provided by
him, for posting at the premises of International Paper, if
the latter is willing.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
7 11n the eent that this Order is enforced by a Judgment of a United
States Court of Appeals. the ords in the notice reading "Posted by
Order of the National l.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1307