SuCrest Corp.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 596 (N.L.R.B. 1967)

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SuCrest Corporation and Burton Hall.
Sugar Workers Council of North America,
I.L.A., AFL-CIO and Burton Hall.
Sugar Workers Council of North America,
I.L.A., AFL-CIO and Burton Hall and
Pepsi-Cola Company , Party in Interest.
Cases 29-CA-217, 29-CB-69, and 29-CB-78.
June 19, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On July 14 , 1966 , Trial Examiner Ramey Donovan
issued his Decision in the above -entitled proceeding,
finding that Respondents SuCrest Corporation and
Sugar Workers Council of North America , I.L.A.,
AFL-CIO, had engaged in certain unfair labor
practices , and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision . Thereafter , Respondents and the General
Counsel filed exceptions to the Decision and
supporting briefs, and the Charging Party filed a
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The 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 to the extent consistent herewith:
As more fully appears in the Trial Examiner's
Decision , Respondent Council , in letters dated
April 13 and 14, 1965 , demanded that SuCrest and
Pepsi-Cola discharge certain named employees" for
failing to pay dues claimed by Respondent Council.
Thereafter , the named employees paid the dues
demanded to the Respondent Council . The payment
by the SuCrest employees followed SuCrest's
April 16 posting of a notice warning that those
employees delinquent in their Council dues would
be "subject to layoff" if they did not pay the dues.
Respondent SuCrest posted its notice as a result of
i Respondents ' requests for oral argument are hereby denied,
since, in our opinion , the record, exceptions , and briefs
adequately set forth the issues and positions of the parties.
2 Forty-six employees were listed in the April 13 letter to
SuCrest , and thirty -one were named in the April 14 letter to
Pepsi-Cola.
' Pepsi-Cola is not a respondent in this case.
The validity of the asserted affiliation under the I.L.A.
constitution is a question relating to internal union government,
Respondent Council's urging that it take action in
the matter. Plainly, the Council attempted to, and-
did, cause discrimination against employees for
nonpayment of union dues in violation of Section
8(b)(2) of the Act, unless its conduct was sanctioned
by a union-security agreement lawful under the
proviso to Section 8(a)(3) of the Act. Absent the
existence of such an agreement, SuCrest's
discrimination against its employees was also not
protected and it must be held in violation of Section
8(a)(3), as the Examiner finds.3
The proviso to Section 8(a)(3) specifies that union-
security agreements are available only to a "labor
organization [which] is the representative of the
employees as provided in section 9(a) . . . ." We
agree with the Examiner that, on the facts presented
here, Respondent Council had not, at times relevant
herein, achieved the status of bargaining
representative for either group of the employees
involved; and that its participation in the negotiation
and signing of the contracts asserted as a defense
herein appears to have been only as a "servicing or
coordinating body." The Council therefore was not
party, as a Section 9(a) representative, to any union-
security contract with SuCrest or Pepsi-Cola which
would have entitled it to take the action complained
about in this case. And we reach this conclusion
notwithstanding the purported affiliation of Local
1476 with the Council; for, assuming arguendo, that
the affiliation was properly accomplished,4 it does
not follow, nor has it been shown, that such
affiliation invested the Council with such status as
would have permitted it under the Act to enforce its
dues collection as herein. Accordingly, we conclude
that Respondent Council violated Section 8(b)(2) and
(1)(A) of the Act, and that Respondent SuCrest
violated Section 8(a)(3) and (1) of the Act.5
In remedying these violations,'' we shall order the
reimbursement of Council dues paid as a result of
Respondents' unlawful conduct. Thus, we shall
direct Respondent Council to reimburse those 46
SuCrest employees named in the April 13, 1965,
letter and the 31 Pepsi-Cola employees named in the
April 14, 1965, letter for the Council dues they paid
from April to September 1,1965,' under the threat to
their employment posed by the April letters. We
shall also order that Respondent SuCrest, because
of its unlawful discriminatory action in forcing the
payment of Council dues, be jointly and severally
liable for the dues reimbursement to the SuCrest
employees. However, in the attendant circumstances,
including the fact that Respondent SuCrest acted
properly addressed to another forum
' In view of our holding, we deem it unnecessary to pass on
other grounds advanced by the Examiner to support his finding of
violations.
" As already indicated, we find that Respondent Council's
violations date from April 13 and 14, 1965, and Respondent
SuCrest's violation dates from April 16, 1965
' No Council dues were demanded of SuCrest and Pepsi-Cola
employees after September 1, 1965.
165 NLRB No. 72
SUCREST CORP.
at the insistence of Respondent Council in
pressuring the employees to pay Council dues, we
deem it appropriate to make the Respondent Union
primarily responsible for the reimbursement of dues
to SuCrest employees, with the Respondent SuCrest
only secondarily liable.8 The dues are to be repaid
with interest in accord with Isis Plumbing & Heating
Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent Sugar Workers
Council of North America , I.L.A., AFL-CIO, its
officers , agents, and representatives, and
Respondent SuCrest Corporation , Brooklyn, New
York, its officers , agents, successors , and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order , as herein modified:
1. Delete paragraphs 2(a) and 2 (b) of the
Order against Respondent Council and substitute
the following:
"(a) In conjunction with Respondent SuCrest,
with Respondent Council primarily liable, reimburse
the 46 SuCrest employees for the Council dues they
were unlawfully compelled to pay between April and
September 1, 1965."
"(b) Reimburse the 31 Pepsi -Cola employees for the
Council dues they were unlawfully compelled to pay
between April and September 1, 1965."
2. Delete paragraph 2(a) of the Recommended
Order against Respondent SuCrest and substitute
the following:
"(a) In conjunction with Respondent Council,
with the Respondent Council primarily liable,
reimburse the 46 SuCrest employees for the Council
dues they were unlawfully compelled to pay between
April and September 1, 1965."
3. Delete paragraphs 3 and 4 of the "Appendix,"
and substitute the following:
WE WILL , in conjunction with SuCrest
Corporation, with ourselves primarily liable,
reimburse to members of Local 1476 employed
at SuCrest Corporation all Sugar Workers
Council dues unlawfully exacted for the period
between April and September 1, 1965.
WE WILL repay to members of Local 1476
employed at Pepsi -Cola Company all Sugar
Workers Council dues unlawfully exacted
between April and September 1, 1965.
4. Delete paragraph 3 of "Appendix A," and
substitute the following:
WE WILL, in conjunction with Sugar Workers
Council , with said Council primarily liable,
reimburse to members of Local 1476 employed
at SuCrest Corporation all Sugar Workers
Council dues they were unlawfully coerced into
597
paying for the period between April and
September 1, 1965.
" See Zoe Chemical Co , Inc, 160 NLRB 1001, N L R.B V.
Local 138, Operating Engineers (Nassau and Suffolk Contractors'
Assn), 293 F 2d 187, 199 (C.A 2).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RAMEY DONOVAN, Trial Examiner: Burton Hall, an
individual,' filed a charge against SuCrest Corporation,
Respondent Company herein, on April 16, 19652; and, on
the same date, Hall filed a charge against Sugar Workers
Council of North America, I.L.A., AFL-CIO, Respondent
Union herein,3 involving conduct of Respondent Union
with respect to Respondent Company and the latter's
employees. On May 18, 1965, Hall filed a charge against
Respondent Union involving conduct of Respondent Union
with respect to the Pepsi-Cola Company, herein Pepsi,
and the latter's employees.4
The General Counsel of the Board, through the Regional
Director of the Board's Region 29, issued a complaint
against Respondent Union on August 13, 1965, in Case
29-CB-78. The allegation of the complaint, as amended on
August 30, 1965, is that, pursuant to a contract between
Pepsi and Local 1476, I.L.A., AFL-CIO, containing a
union-shop provision, Respondent Union and Local 1476,
as agent of Respondent, have and are requiring employees
covered by the contract to pay moneys to Respondent
Union as a condition of employment although Respondent
Union is not the representative of said employees as
provided in Section 9(a) of the Act. Such conduct is alleged
to be in violation of Section 8(b)(1)(A) and (2) of the Act.
After consolidating Cases 29-CA-217 and 29-CB-69,
the General Counsel issued a complaint on August 20,
1965, against Respondent Company and Respondent
Union. The allegation therein is that, pursuant to a
contract between Respondent Company and Local 1476
and Local 976-4, I.L.A., AFL-CIO, containing a union-
shop provision, Respondent Union and Respondent
Company have required employees covered by the
contract to pay moneys to Respondent Union as a
condition of employment although Respondent Union is
not the representative of said employees as provided in
Section 9(a) of the Act. Such conduct is alleged to be in
violation of Section 8(a)(1) and (3) and (b)(1)(A) and (2) of
the Act.
Respondent Union and Respondent Company in their
answers to the complaints have denied the commission of
the alleged unfair labor practices.
The three cases aforementioned were thereafter
consolidated for the purposes of a hearing and a hearing
was held before this Trial Examiner on the two complaints
aforedescribed in Brooklyn, New York, on March 14 and
15,1966.5
' Mr Hall is an attorney and entered an appearance at the
hearing as Burton H Hall, Esq , appearing pro se
1 Case 29-CA-217
' Case 29-CB-69
4 Case 29-C B-78
s After convening the hearing, it appeared that a stipulation of
facts by the parties was in a progressive and advanced stage of
discussion . The hearing was adjourned on March 14 to facilitate
299-352 0-70-39
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FACTS
SuCrest Corporation, Respondent, at all times material,
maintains its principal office and place of business in New
York City, New York, Borough of Manhattan, and a place
of business in New York City, New York, Borough of
Brooklyn, and places of business in various other States of
the United States, where it engages in the processing, sale,
and distribution of sugar, molasses, and related products.
During the past year, a representative period,
Respondent SuCrest, in the course of its business
operations, manufactured, sold, and distributed, at its
Brooklyn plant, products valued in excess of $50,000, of
which, products valued in excess of $50,000 were shipped
from said plant in interstate commerce directly to States of
the United States other than the State of New York.
Respondent SuCrest is engaged in commerce within the
meaning of the Act.
Pepsi-Cola Company is a New York corporation with its
principal office and place of business in New York City,
New York, Borough of Manhattan, and a plant in New
York City, New York, Borough of Queens, and other
places of business in various States of the United States,
where it, at all material times, engages in the manufacture,
sale, and distribution of carbonated beverages and related
products.
During the past year, a representative period, Pepsi, in
the course of its business operations, manufactured, sold,
and distributed, at its Queens plant, products valued in
excess of $50,000, of which, products valued in excess of
$50,000 were shipped from said plant in interstate
commerce directly to States of the United States other
than the State of New York.
Employer Pepsi is engaged in commerce within the
meaning of the Act.
The International Longshoremen's Association,
AFL-CIO, herein I.L.A.; Sugar Refinery Workers Local
1476, I.L.A., herein Local 1476; Local 976-4, I.L.A.,
herein Local 976-4; Sugar Workers Council of North
America, I.L.A., AFL-CIO, herein the Council or
Respondent Council, are labor organizations within the
meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Background and Facts
For many years, Local 1476 and Local 976-4 have
represented units of production and maintenance
employees and warehouse employees, respectively.6
SuCrest has had a series of contracts with the aforesaid
unions. Typical of past contracts is an agreement
executed, on February 4, 1963, for the term, October 1,
1962, to September 30, 1963. The introductory paragraph
of the agreement states that it is between SuCrest and the
I.L.A. "and the latter's local unions," Local 1476 and
Local 976-4 "(the three latter parties hereinafter called
the `union')." Except as stated, the provisions of prior
agreements are extended and continued in the February
1963 contract. The signatures to the latter are the I.L.A.;
the accomplishment of a complete stipulation On March 15, an
executed stipulation of facts was submitted into the record and
oral argument was made on the record Briefs and memoranda
were subsequently filed with the Trial Examiner on April 4, 1966.
Local 1476; Local 976-4; and SuCrest.
On March 16, 1964, SuCrest entered into a contract with
the unions for a term from October 1, 1963, to
September 30, 1965. On its caption the printed contract is
described as "Agreement between SuCrest Corporation
and I.L.A." In the introductory paragraph the agreement
is described as between SuCrest, party of the first part,
and I.L.A., representing its affiliated Locals, Local 1476,
Sugar Workers Council of North America; and Local
976-4 "(the three latter parties hereinafter called the
Union), as party of the second part." The recognition
clause states that the Company "recognizes the union" as
the sole bargaining agency of its employees. The union-
security clause requires membership in "the union" as a
condition of employment. With respect to checkoff of
dues, the contract provides, inter alia, that "Each of said
Local Unions agrees to indemnify and save harmless the
Company of and from all liability with respect to
deductions made from the wages of its members pursuant
to the provisions of this [checkoff] Article." Article
1I(e)(4) of the contract provides: "It is distinctly
understood that the Warehouse Department is a separate
bargaining unit represented by Local 976-4 and that the
Production and Maintenance Departments constitute a
separate bargaining unit represented by Local 1476." The
signatories to the contract were the I.L.A.; Local 1476;
Respondent Council; the Company; and Local 976-4.
Pepsi has also had a past history of union contracts. On
January 16, 1963, a contract was entered into between
Pepsi and "Local 1476, Sugar Refinery Workers of the
International Longshoremen's Association, hereinafter re-
ferred to as the `Union'...." The term of the contract was
January 16, 1963, to September 30, 1965. The union-
security clause requires membership "in the Union." The
signatories of the contract were Pepsi and Local 1476, by
the latter's business agent and committeemen.
With respect to both the most recent SuCrest and Pepsi
contracts, aforesaid, representatives of Respondent
Council participated in the contract negotiations, together
with counsel of the Council, and the latter was paid by the
Council.7 Before execution of the contracts, they were
ratified by the membership of Local 1476.
The Council
In 1957, the I.L.A. adopted a resolution authorizing the
issuance of a charter for Respondent Council. In 1961, a
number of local unions in the sugar industry, that were
affiliated with the I.L.A., organized and became affiliated
with the Respondent Council and adopted a constitution.
In July 1963, the I.L.A. held an international convention,
and, although Local 1476 was entitled to have its
delegation attend the convention and participate therein,
Local 1476 did not send any delegates to said convention.
At the aforesaid convention, the delegates thereto
resolved, inter alia , to amend article V, section 1 of the
I.L.A. constitution by adding the following:
The Convention or the Executive Council by two-
thirds vote shall be empowered to establish Councils
to coordinate the activities of Local unions in the
same craft or branch of the industry with such powers
6 Counsel for Respondent Council stated at the hearing that the
local unions had been certified for at least 20 years
' Counsel for the Council was apparently also counsel for Local
1476
SUCREST CORP. 599
and functions as the Convention or Executive Council
shall prescribe.
In August 1963, the I.L.A. executive council met and
approved a proposal that: (1) the existing Respondent
Council be incorporated into the I.L.A. structure pursuant
to the powers vested in the executive council;
(2) Respondent Council possess the powers and rules
under which it had been operating; (3) all local unions
representing employees in the sugar industry be required
to affiliate with the Council.
Following the foregoing, the I.L.A. secretary advised
Local 1476 of the aforesaid action of the executive board,
and advised that Local 1476 should become affiliated with
Respondent Council. The International Union and the
Council have adhered to this position.
At no time did the executive board or membership of
Local 1476 vote to affiliate with Respondent Council, and,
at, at least, two membership meetings of Local 1476, the
latter voted not to affiliate with Respondent Council.
Respondent SuCrest had no knowledge or notice of these
last mentioned facts.
Thereafter, Respondent Council, pursuant to its
constitution, convened a special convention on August 31,
1964, upon notice to all local unions affiliated with it. All
said local unions were affiliated with the I.L.A. At said
convention, the constitution of Respondent Council was
amended by unanimous vote of the delegates. A resolution
was adopted requiring all members of each local union
affiliated with Respondent Council, while employed by an
employer under contract with an affiliated local union, to
pay Respondent Council dues in the sum of $2 per month.
Local 1476 had failed and refused to send delegates to the
aforementioned special convention of the Council.
An action was brought under Section 102, Title I of the
Labor-Management Reporting and Disclosure Act of 1959,
herein LMRDA, by employee King and others, individually
and on behalf of all other members of Local 1476, against
Randazzo, as president, or Borrazas, as secretary-
treasurer, of Respondent Council, in the United States
District Court (King v. Randazzo, 234 F.Supp. 388)."
The district court had before it, initially, the facts
described hereinabove respecting Respondent Council
and Local 1476 from 1957 to November 1963. The court, in
an opinion, dated July 17, 1964, found "that the action of
the Executive Council in establishing the Sugar Council
and compelling affiliation of Local 1476 was invalid insofar
as it required members of Local 1476 to pay dues to the
Sugar Council." The defendants were enjoined from
collecting or attempting to collect the dues assessed
against the members of Local 1476 by the Sugar Council.
Thereafter, on motion to modify its injunctive order
aforedescribed, the court issued a further decision and
order under date of October 13, 1964. At this time the
court had before it the more recent events involving
Respondent Council and Local 1476, including the special
convention in August 1964, described hereinabove. The
court decided that the Council was a labor organization
and had a right to increase dues by a majority vote of
delegates voting at a convention. The court found that the
Council had acted in accordance with statutory
requirements for the increase of dues and the court
removed its injunctive prohibition. The court stated that
its conclusion "does not constitute a finding by this Court
that the Sugar Council has authority from either the ILA
or its executive council to impose such an increase in dues
upon the members of the various locals; nor is it a finding
that such authority is necessary .... "This Court's
jurisdiction is ... limited to the determination as to
whether such processes as are set forth in the provisions of
the LMRDA, were complied with by the Sugar Council in
imposing the increase in dues."'
Action by Respondent Council
On April 13, 1965, on a letterhead of Local 1476, I.L.A.,
Borrazas wrote to SuCrest. SuCrest knew that Borrazas
was an elected official, business agent, of Local 1476. The
record is not clear whether SuCrest also knew that
Borrazas was an official secretary-treasurer of Respondent
Council. The letter stated:
We enclose a list submitted by the Sugar Workers
Council, representing these employees who are in
arrears in the payment of their dues to the Sugar
Workers Council.10 [Forty-six names are listed.]
Inasmuch as these members have failed to meet their
financial obligation, we request that they be
discharged in accordance with the Union Shop
Provision of the contract.
Upon receipt of the foregoing letter, counsel for SuCrest
spoke on the telephone with counsel who represented
Respondent Council as well as Local 1476. SuCrest's
counsel said that the Company, purely on the basis of the
notice, would not discharge all the employees listed in the
notice of April 13, 1965. Counsel for Respondent Council
and Local 1476 replied that the Company had the
minimum duty of explaining to the listed employees the
possibility of discharge under the contract. SuCrest then
spoke to the employees and the latter indicated that they
would pay up the aforementioned dues in arrears. On
April 16, 1965, SuCrest posted at its plant the following
notice:
We have received a notice from the union to the effect
that 46 of our employees are delinquent in their dues
and, therefore, subject to discharge under the
provisions of the union contract. We have reached an
agreement with the Union whereby we will designate
5 men each day who will be subject to layoff unless
they live up to their contract and pay up their
delinquent dues. These dues, payable to the Sugar
Workers Council, amount to a total of $10 for the
period from December through April and must be
" Sec 101(a)(3), LMRDA, provides "Except in the case of a
federation of national or international labor organizations, the
rates of dues and initiation fees payable by members of any labor
organization in effect on the date of enactment of this Act shall
not be increased . except---(A) in the case of a local labor
organization , (i) by majority vote by secret ballot of the members
. or (B) in the case of a labor organization , other than a local
labor organization or a federation of national or international labor
organizations , (i) by majority vote of the delegates voting at a
regular convention , or at a special convention , or (u) by
majority vote of the members voting in a membership
referendum , or (iii ) by majority vote of the members of the
executive board pursuant to express authority contained in
the constitution and bylaws of such labor organization "
v Affil 346 F 2d 307 (C A 2)
The dues to Local 1476 were not in arrears As appears, the
issue was the dues to Respondent Council
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid in full on the date shown. In order that you may
be aware of your responsibilities, we are listing below
the names of the delinquent members and the day for
which they have been designated to fulfill this
obligations. [Forty-six names on various dates from
April 19 to 30.1
Thereafter, all employees listed in the letter of April 13,
1965, paid their dues to Respondent Council as requested
in the letter.
On April 14, 1965, on the letterhead of Local 1476,
I.L.A., Borrazas, "Business Manager, Local 1476" wrote
to Pepsi as follows:
We enclose a list submitted by Sugar Workers
Council, representing those employees who are in
arrears in the payment of their dues to this
organization. [Thirty-one names.]
Inasmuch as these members have failed to meet their
financial obligation we request that they be
discharged in accordance with the Union Shop
Provision of the contract.
Pepsi knew that Borrazas was an elected official of
Local 1476. Again, as in the case of SuCrest, it is not clear
whether Pepsi knew that Borrazas was an official of
Respondent Council. In any event, thereafter, all
employees listed in the letter to Pepsi paid their dues to
Respondent Council as requested in the letter.
In July 1965, the I.L.A. executive council established a
trusteeship over Local 1476 and appointed an I.L.A. vice
president, Scotto, as trustee.
Thereafter, Scotto, as trustee, recommended to the
I.L.A. executive council that it modify its action of August
1963, described hereinabove, by providing that affiliation
by locals with Respondent Council be only after the
affirmative vote of the Local's membership, and that, until
such affirmative vote, the local be deemed not affiliated
with the Respondent Council or be required to affiliate.
In August 1965, the I.L.A. executive council adopted the
aforementioned recommendation of Trustee Scotto and
amended its action of August 1963 effective September 1,
1965.
Since September 1, 1965, Local 1476 is not affiliated
with Respondent Council and the members of the Local
have not made and have not been required to pay dues to
Respondent Council. When, or if, Local 1476 was affiliated
with the Council will be considered at a later point.
CONCLUSIONS
(1) It is well established that a local union, such as
Local 1476 in the instant case, is a distinct legal entity
apart from the International union with which it is
affiliated." By the same token we believe that the
Respondent Council was a separate and distinct legal
entity from either Local 1476 or the I.L.A., the
International union. 12
In addition to the basic legal distinction between a local
union; a coordinating body such as Respondent Council;13
and an International union , which, in a broad sense, is not
only a parent body but also a coordinating body, there is
also a distinctive status that resides in a particular labor
organization under Section 9(a) of the Labor Management
Relations Act, 1947. The specific certified or recognized
labor organization that has been designated or selected by
the employees in the appropriate bargaining unit is the
exclusive representative of said employees. The right of
the parties to a contract to include a union-security clause
in their agreement is dependent upon, and directly related
to, the fact that the labor organization , in which
membership is required as a condition of employment, is
"the representative of the employees as provided in
section 9(a) .. ." 14
Although the voluntary addition of a party to a contract
is permissible, we find nothing in the instant record that
persuades us that Local 1476 was not at all times the
representative of the unit employees as provided in
Section 9(a) of the Act, and that the membership and dues
requirements of the union-security clause could and
should have related only to that organization. 15 The
participation of the Council in the negotiations and its
signing of the contract, in addition to the Locals and the
International , indicates no more than participation in
contract negotiation by the Council as a servicing or
coordinating body that also signed the contract. A labor
organization does not become the representative, of
employees under Section 9(a) of the Act by contractual
osmosis. t 6
Our view that the labor organization, that is the
bargaining representative of the employees under Section
9(a) of the Act, is the labor organization whose dues
employees are required to pay as a condition of
employment under Section 8(a)(3) of the Act, is borne out
by a number of considerations. Union-security clauses are
a specific exception to the Act's proscription of
discrimination against employees for joining or not joining
11 Coronado Coal Company v United Mine Workers ofAmerica,
268 U S 295 , 299, United Mine Workers v Coronado Coal Co , 259
U S 344, 393 , Di Giorgio Fruit Corp v N L R B , 191 F 2d 642
(CADC)
12 We have previously cited portions of the LMRDA with
respect to the distinction made therein regarding the
requirements for increasing dues, a distinction being made
between a labor organization "other than a local labor
organization or a federation of national or international labor
organizations ." In its definition of a labor organization the above
act also makes it clear that , in addition to the more common types
of labor organizations , the term also includes "any conference,
general committee, joint or system board , or joint council
(Sec 3(i) )
" The Council has its own constitution and officers
14 Section 8 (a)(3) and its proviso Cf N.L R B v Wooster
Division of Borg- Warner Corp , 356 U S 342 , 350, where the
employer 's insistence upon a recognition clause, which excluded
a certified International union and substituted in its stead an
uncertified local union affiliated with the International , was held
to be a refusal to bargain in violation of Section 8(a)(5) of the Act
The Board has also found that an employer's insistence that the
local union's parent international become signatory to the
contract was a violation of Section 8(a)(5) of the Act, where the
local union alone had been certified as the employees ' exclusive
bargaining representative Kit Manufacturing Company, Inc., 150
NLRB 662,672
15 As we have seen, the applicable contract expressly stated,
inter alia , that the production and maintenance departments
"Constitute a separate bargaining unit represented by Local
1476 " The union-security clause, however, required membership
in the ambiguous phrase embraced by the term, "the Union."
16 Cf. Univac Division, Sperry Rand Corporation, 158 NLRB
997, where the Board held "that during the years of collective
bargaining between the parties [in centralized negotiations] the
Minneapolis servicemen have not been merged into one overall
unit , nor has their participation in the centralized negotiations
constituted a waiver or loss of their separate indentity, as
originally certified in 1950."
SUCREST CORP. 601
a labor organization . Such an exception to the general
intendment of Section 8(a)(3) and (1) of the Act requires
strict construction. Consequently, when the proviso or
exception to Section 8(a)(3) requires that the labor
organization be the representative under Section 9(a) of
the Act, it refers to a specific statutory representative. By
the same token, it is that same labor organization that is
contemplated under the provisions that permit such a
labor organization , in a union -shop contract, to require the
payment of its membership dues as a condition of
employment. To permit the exaction of membership dues
in some other labor organization either in place of, or in
addition to, the membership dues in the Section 9(a)
representative, is, in our opinion, not contemplated or
permissible under the terms of the Act.
In the instant case, the employees paid the membership
dues of Local 1476, the Section 9(a) representative.
Respondents then required that these Local 1476
employees pay separate and additional dues to another
labor organization, the Council, as a condition of
employment. The Council was not the Section 9(a)
representative of the employees. The employees remained
solely members of Local 1476 and at no time were
members of the Council. At most, the local union, Local
1476, had purportedly become affiliated with the Council,
with the employees remaining members of Local 1476,
which, in turn, was asserted to be affiliated with the
Council, which was affiliated with the I.L.A., and the latter
was affiliated with the AFL-CIO. The logic of
Respondents' position would seem to lead to the untenable
proposition that membership dues described in the Act to
be a condition of employment would be dues payable not
only to the Section 9(a) representative, Local 1476, but
separate dues that might be imposed by each of the three
other bodies, the Council, the I.L.A., and the AFL-CIO.
But not one of the latter is the Section 9(a) representative
and whatever dues or other requirements they might
impose would not be enforceable under the sanction of the
union-shop clause, which is the specific prerogative of the
Section 9(a) representative.17 Section 8(b)(1)(A) is not to
the contrary.
The district court, supra, in an adjudication expressly
limited to the LMRDA, held that although the $2 per
month required by the Council from members of Local
1476, was specifically designated by the enacting body, the
Council, as a "per capita tax" and not dues, the $2 was, in
fact, dues within the contemplation of the LMRDA. The
court also decided, under the same statute, that the $2
represented an increase in dues as such term was used in
the statute. We have no reason to express our view on such
matters within the court's jurisdiction under the LMRDA
and we defer to the decision thereon.
Considering the $2 as dues under both the LMRDA and
the LMRA, we deem it appropriate to express our view of
the nature of such dues under the LMRA.18 We believe
that the $2 represented an increase in the dues of
members of Local 1476 only in the sense that the total
amount of money that they were required to pay, in dues of
all kinds, had been increased. Instead of paying $8 dues to
the Local,19 the employees were now required to pay $8 to
the Local and $2 to the Council, or a total in dues of $10,
which, in that sense, was an increase in dues. It is
comparable to a citizen who pays Federal income tax. The
State, in which he resides, then imposes a State income
tax. In the broad sense, the man's income taxes have been
increased. But it is quite evident that his Federal income
tax has not been increased. By the same token, in the
instant case, the dues of employee members to Local 1476
remained the same, $8, but a new dues requirement, to
another labor organization, the Council, in the amount of
$2 was imposed .LO This was not an increase in dues owed
to Local 1476, the Section 9(a) representative. It is not the
dues, which, in our view, were emcompassed in Section
8(a)(3) and 8(b)(2) of the Act and which could be exacted
under threat of loss of employment pursuant to a union-
shop contract.
(2) On the terms of the March 1964 contract, we regard
the status of the Council and the obligation of the unit
employees thereto, as unclear. As previously described,
the caption of the contract states that it is a contract
between the Company and the I.L.A., the International
union. This description is repeated in an introductory
paragraph where the parties are, again, the Company and
the I.L.A. It is stated, at this point, the I.L.A. is
representing its affiliated locals, Local 1476 and Local
976-4, both being expressly named as such affiliated
locals. The Council, of course, was not a local union and
neither claimed to be such nor was it named as such.
However, after the words about the local unions that the
I.L.A. was representing, the name of the Council followed
the name of Local 1476.21 Respondent SuCrest argues that
it is significant that a semicolon was used after the
Council's name "whereas commas are used elsewhere to
set apart the names of other parties. . . . Respondent
SuCrest suggests that such punctuation was intentionally
used to indicate and be consistent with the special
affiliation of Respondent Union [the Council] and Local
1476...."
In naming the two affiliated locals that the I.L.A. was
representing, a comma followed "Local 1476," and then
appeared the Council's name. We are inclined to view the
comma as indicating that what immediately followed was
descriptive. In other words, if the International union
writes its full title as "I.L.A., AFL-CIO," the "AFL-CIO"
is descriptive and does not mean that the AFL-CIO
federation is a coparty with the I.L.A. By the same token,
the semicolon separating "Local 1476, Sugar Workers
Council of North America" from Local 976-4 would tend
to confirm that in the contract negotiations the I.L.A. was
representing the two locals as parties and that the Council
it As our previous citations demonstrate, an international
union, or a council , or a federation can be, in a particular case, the
Section 9 ( a) representative But in the instant case such is not the
fact.
1N If the $2 were not dues, it would, presumably , be a per capita
tax, which was the description used by the Council when it
imposed the obligation Such a tax , of course , would not be
enforceable under penalty of loss of job pursuant to the union-
shop contract
'" Eight dollars is an arbitrary figure We do not know the
amount It may have been $5 or $10
2° As we have seen, in April 1965, the Local 1476 members
were not delinquent in dues to the Local They were delinquent in
dues to the Council These latter dues were enforced as a
separate dues obligation payable to the Council and were so
described.
21 " and I L A , representings its affiliated Locals, Local
1476, Sugar Workers Council of North America, and Local 976-4
11
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not a party . The contract refers to "the three latter
parties hereinafter called the union." Since the contract,
as we have seen, is described as between the Company
and the I.L.A. and, considering the punctuation described
above, it is arguable that the three parties described as
"the union" are the I.L.A. and its two locals whom it was
representing . 22 Respondent SuCrest, in its brief, p. 9,
states that the term "the Union" "was used expressly for
the purpose of including , as a party , Respondent Union
[the Council] as well as Local 1476 and Local 976-4."
The checkoff provision makes no reference to the
Council but expressly provides that the two local unions
will indemnify the Com`panyfom liability with respect to
deductions made from wages pursuant to the checkoff
provision . The contract also states that the two units are
separate bargaining units, one represented by Local
976-4, and the other "represented by Local 1476." The
Council is not referred to as representing the employees in
either of the two-named units.
Accordingly, although we do not regard the terms of a
contract as dispositive of the basic statutory rights and
obligations of employees , we view the instant contract, in
any event , as ambiguous with respect to the status of the
Council and with respect to the obligations of the
employees who are members of Local 1476.23
(3) The General Counsel has stated in his brief that he
"does not deal with the problem of whether Local 1476
was affiliated with Respondent [Council] because he feels
that it makes no difference whether such affiliation, took
place or not." This position apparently stems from the
General Counsel ' s contention that although a union,
pursuant to Section 8(b)(1)(A ), may make its own rules
regarding acquisition or retention of membership, it may
not enforce such rules by job discrimination affecting
employees . Cases are cited on this point.24
The difficulty with the foregoing position is that the
cited cases and similar cases relate to fines and do not
involve union dues in the context of a contract containing a
union-security clause. Where the internal union rule
relates to dues, in the context of a union- shop contract, the
Act does permit job discrimination against employees for
nonpayment of such dues.25
Without expressly adverting to the abovementioned
distinction , although undoubtedly aware of the legal
proposition , the General Counsel then states that "no
version of the union 's constitution , or Respondent's By-
Laws or Local 1476's By-Laws can destroy the right of an
employee not to pay dues to a labor organization which is
not his collective bargaining representative ." This we view
as a somewhat different point than the proposition about
internal union rules and what such rules may or may not
do with respect to membership in the Union and job tenure
of employees 26 We wish to prescind at this juncture from
the question of the Council ' s status under Section 8(a)(3)
and Section 9(a). We have discussed this matter earlier in
our decision . We also wish to prescind , at this point, from
another facet that we have previously discussed , namely,
the ambiguity of the contract.
Since we now confine ourselves to the question of dues
that members of Local 1476 were said to be obligated to
pay to the Council , we find the matter of considering the
question of Local 1476's alleged or asserted affiliation with
the Council to be an essential , indeed , an inescapable
task . The reason for this is that the basis of Respondent
Council's Section 8(b)(1)(A) defense rests on the affiliation
of Local 1476 with the Council. In effect, Respondent's
proposition is that the Local was affiliated with the
Council; the Council , pursuant to duly adopted internal
action, enacted that members of affiliated locals pay to the
Council dues in the amount of $2 per month . We have,
therefore , in Respondent 's view an internal membership
rule with respect to dues that requires certain dues from
members of Local 1476 to be paid to the Council as a
condition of employment under the terms of Local 1476's
(and I.L.A.'s and others') contract with SuCrest.
We do not read the decision of the Federal district
court in the King case, supra, as a decision on the
merits of the affiliation question involving Local 1476 and
the Council . The court expressly stated that the affiliation
issue "would involve a question of the internal
organization of the union and would not under the
circumstances be subject to the jurisdiction of this Court."
For the purposes of its initial decision the court assumed
that Local 1476 was affiliated with the Council, albeit
describing the affiliation as a "unilateral affiliation"
(supra at 391) "compelled by the Sugar Council" (supra
at 392 ). Despite the aforesaid assumption , the court
initially concluded "that the action of the Executive
Council in establishing the Sugar Council and compelling
affiliation of Local 1476 was invalid insofar as it required
members of Local 1476 to pay dues to the Sugar Council."
In its second decision, or decision upon motion to
modify, the court focused its attention upon an
amendment made by the Council to its constitution in
August 1964. The amendment provided: "Each member of
each local union affiliated with this organization [the
Council] shall pay $2 per month to this organization as per
capita tax . ..." There is little doubt that the Council
assertedly considered that Local 1476 was affiliated with
the Council but this does not establish the fact of
affiliation. The court confined itself to a very limited area,
assuming , but not deciding, the fact of affiliation. The
court decided : (1) that the $2 levy was not a per capita tax
but dues under Section 101(a)(3) of the LMRDA; (2) that
the levy constituted a dues increase under the LMRDA;
and (3) that the Council was a labor organization under the
LMRDA and had, under the statute, "a right to increase
dues by a majority vote of the delegates voting at a regular
convention. The Sugar Council having followed this
procedure , the increase in dues has been in accordance
with the statutory requirements and, therefore , this Court
must remove its injunctive prohibition."
In sum , the court decided simpl that the Council was a
labor organization that , under the LMRDA , could increase
its dues by a majority vote at a regular convention and that
the Council had done so . To make abundantly clear that it
was not passing upon the question as to whom the
22 In the immediately preceding contract , the term, "the
Union ," was used and it was limited to three parties , the I L A ,
Local1476,and Local976-4
23 Cf Don Juan Co, Inc, 79 NLRB 154, 156, where it was
stated "that union - security provisions relied upon in justification
for discharges must be expressed in clear and unmistakable
language "
24 Bay Counties Carpenters (Associated Home Builders of
Greater East Bay, Inc), 145 NLRB 1775, Local 283, UAW
(Wisconsin Motor Corp ), 145 NLRB 1097
25 Section 8(a)(3) and 8(b)(2)
26 See our discussion under (1), above
SUCREST CORP 603
Council's increase in dues applied, as a matter of lega
obligation, the court stated:
This conclusion [cited in the preceding paragraph, by
the Examiner], however, does not constitute a finding
by this Court that the Sugar Council has authority
from either the ILA or its executive council to impose
such an increase in dues upon the members of the
various locals; nor is it a finding that such authority is
necessary. [Emphasis supplied.]
This brings us back to the matter of the affiliation of
Local 1476 with the Council since the purported affiliation
is the basis of the internal rule (Section 8(b)(1)(A)),
whereby membership in Local 1476 is alleged to require
payment of dues to the Council 21
At no time did the executive board or membership of
Local 1476 vote to affiliate with the Council, and, at, at
least, two membership meetings of Local 1476, the latter
voted not to affiliate with the Council. We must therefore
look to some other basis for the claim that Local 1476
became affiliated with the Council.28
Although the Council adopted a constitution in 1961
which required payments to the Council by members of
local unions affiliated with the Council, this had no
application to members of locals that were not affiliated,
such as Local 1476. To meet this obvious problem, the
executive council of the I.L.A., in August 1963, approved a
proposal that inter alga, provided that all local unions
representing employees in the sugar industry be required
to affiliate with the Council. The secretary of the I.L.A.
then advised Local 1476 of the aforesaid action of the
executive council and further advised Local 1476 that it
should, or was required to, affiliate with the Council as of
October 1,1963.
We believe that a requirement to affiliate, which was the
extent of the I.L.A.'s action, is not the accomplishment of
the requirement and it does not constitute affiliation. A
requirement that all locals display an American flag in
their offices is not the accomplishment itself. Action may
be taken to enforce the requirement or rule, such as a fine,
expulsion, imposition of trusteeship, and so forth, but until
the requirement or rule is either voluntarily complied with
or otherwise enforced or accomplished, it remains no more
than a requirement. This situation would be the same if
the union rule or requirement was that members should
not cross picket lines or any other requirement or rule.
The requirement that Local 1476 affiliate with the Council
did not bring about the required affiliation.21
Equally evident is the fact that the subsequent action, in
August 1964, of the Council, in adopting a resolution, that
all members of local unions affiliated with the Council
should pay the Council $2 per month, did not bring about
the affiliation of Local 1476 with the Council.
There is no evidence in this record that Local 1476 ever
became affiliated with the Council, albeit the Council and
the I.L.A. undertook to regard the Local as an affiliate of
the Council'3°
Nor is there a basis for contending that any action of
Local 1476 or its members brought about, or was
equivalent to, affiliation with the Council. We have already
noted that at no time did the executive board or
membership of Local 1476 vote to affiliate with the
Council and that on at least two occasions the membership
voted against such affiliation. Equally unavailing is a
possible contention that the payment of dues to the
Council by members of Local 1476 in some way brought
about or indicated affiliation with the Council. In the
instant case, we have seen that, in April 1965, payment of
dues to the Council was exacted under the duress of
threatened or demanded loss of jobs for asserted failure to
pay dues under the union-shop contract. The district
court, in its July 1964 decision, also noted that past dues to
the Council by members of Local 1476 were exacted under
the same duress as was subsequently used.31
The participation of the Council in the March 1964,
contract negotiations, in the ambiguous capacity
previously described, whether as a coparty or otherwise, in
no way effectuated the affiliation of Local 1476 with the
Council. Nor is the fact that counsel for the Council, who
was also apparently counsel for Local 1476, participated in
the negotiations and was paid by the Council, helpful to
any contention that Local 1476 had somehow affiliated
with the Council. Under the circumstances, the
ratification of the contract by Local 1476 does not equate
with affiliation. Whether the membership of the Local,
prior to ratification, had the advice of counsel who was
counsel for the Local and for the Council, or whether they
had other counsel, or no counsel, we do not know. It would
appear likely that, realistically, the ratification focused on
the substantive benefits of the contract, such as wages,
hours, and working conditions. Legally, ratification would
relate to the entire contract but in view of the ambiguous
nature of the contract, the contract provisions, dealing
with such matters as the contract being between SuCrest
and I.L.A.; or between SuCrest and I.L.A., representing
its two locals, Local 1476 and 976-4; or whether a nonlocal
labor organization, the Council, was in some way
27 Or, using the court's words in describing the area that it did
not pass upon, the "authority [of the Council] to impose such an
increase in dues upon the members of the various locals "
21 We shall rely upon facts in the instant record and the same or
related facts that appear in the court's decision in the King case,
supra
29 Without delving into the constitutional powers of the 1 L A ,
it may be assumed that the I L.A could pass a resolution that all
locals in the sugar industry are hereby affiliated with the Council
However , this is not the action that was taken A requirement that
citizens pay income tax comes to fruition either by voluntary
compliance or by enforcing the requirement The requirement is,
again , not compliance
30 Apparently, the Council asserts that Local 1476 is affiliated
with the Council but this is not even bootstrap evidence The
district court noted in a footnote to its original decision that the
Council, in its brief, stated that Local 1476 became affiliated with
the Council on or about October 1, 1963, pursuant to the
requirement of the I L A. executive council in August 1963,
described above In the absence of any evidence before us or
described by the court, we assume that the above-mentioned
reference in Council brief can only mean that, since the LL A
executive council required Local 1476 to affiliate with the Council
by October 1, 1963, the affiliation occurred, ipso facto, on
October 1, despite the fact that the Local neither voluntarily nor
otherwise complied with the requirement by October 1 or
thereafter We have previously indicated our view of such an
argument In the same footnote , the court also noted that Vice
President Scotto of the I L A (who was, a year after the court's
decision, appointed trustee of Local 1476, in July 1965) stated in
an affidavit that Local 1476 became affiliated with the Council as
of January 1, 1964 Again, there is no more evidence to support
the assertion of affiliation in January 1, 1964, than there is to
support the assertion of affiliation in October 1, 1963
31 "From the record, the Sugar Council admits that it has
attempted to enforce collection of these illegal dues [to the
Council] by jeopardizing the job status of members of Local
1476 "King case, supra at 393.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by the I.L.A. in the negotiations ; or in what
capacity the Council purported to be acting; or whether
"the Union" was the four unions that signed the contract,
the I.L.A., the two locals, and the Council; or whether "the
Union" was three parties, the I.L.A. and two locals; or the
two locals and the Council, we cannot attach
determinative significance to the contract ratification, at
least on the issue of Local 1476's affiliation with the
Council. Indeed, under this same ratified contract, the
members of Local 1476 were not complying with the
purportedly legal contractual requirement that they pay
dues to the Council in addition to their dues to the Local.
Under duress of discharge the members then paid their
Council dues. This scarcely bespeaks a comprehended
affiliation on the Local's part with the Council by reason of
the contract ratification.32
The cornerstone of the asserted obligation of the
members of Local 1476 to pay dues to the Council was the
alleged affiliation of Local 1476 with the Council.33 We
find the evidence to be convincing that Local 1476 did not
affiliate with the Council, albeit the I.L.A. had directed
such affiliation. Accordingly, we find no obligation on the
part of members of Local 1476 to pay dues to the Council
since such obligation, under the various enactments of the
I.L.A. and the Council, described above, emanated solely
from, and was dependent upon, the affiliation of Local
1476 with the Council. Such affiliation , in our opinion,
never occurred or existed.
For the reasons set forth above under our points (1), (2),
and (3), above, we find that Respondent Council has
violated Section 8(b)(1) and (2) of the Act with respect to
the members of Local 1476 under the SuCrest and, Pepsi
contracts as alleged in the complaint.
Regarding Respondent SuCrest, we find liability under
Section 8(a)(3) and (1) of the Act. In some respects SuCrest
came within the exemption of the second proviso of
Section 8(a)(3). Thus, we believe that on the question of
affiliation of Local 1476 with the Council, SuCrest acted
reasonably and in good faith. SuCrest reasonably believed
as a fact that the Local was affiliated with the Council. On
other questions of fact, we also incline to exculpate
SuCrest under the aforementioned second proviso. But we
do not regard the standard of reasonable knowledge or
reasonable action pursuant thereto, to refer to question of
law as contrasted to questions of fact. We believe, as we
have stated in our point (1), above, that the Council was
not the representative of the employees under Section 9(a)
of the Act and we believe that the dues obligation of the
union-security contract could run only to such
representative. Apparently SuCrest (and the Council) did
not accept this legal proposition. SuCrest presumably
believed that the Local was affiliated with the Council,
that the Council had signed the contract, ratified by the
Local, and that the Federal district court had decided that
32 There would in fact be something of an inconsistency if it
was asserted that the Union 's right to make internal rules
regarding membership, affiliation , and dues was shown to have
been exercised , or that it frunctified, by reference to an external
event, an employer contract as evidence that there was affiliation
and consequently a valid internal union rule
33 Resolution of Council, August 1964, supra, requiring all
members of each local affiliated with the Council to pay $2 per
month to Council
34 An "erroneous view of the law , even if held in good faith is
not defense to a charge of refusal to bargain "N L R B v. Burnett
Construction Co., 350 F.2d 57, 60 (C.A. 10), United Aircraft Corp
v N.L.R B., 333 F 2d 819,822 (C.A 2), cert denied 380 U.S. 910,
the dues were properly increased. Assuming, arguendo,
that SuCrest thereupon concluded in good faith that the
employee members of Local 1476 must pay the Council
dues as a condition of employment, we find such a
conclusion to have been legally erroneous.34
CONCLUSIONS OF LAW
1. SuCrest Corporation and Pepsi-Cola Company are
employers within the meaning of Section 2(2) of the Act
and are engaged in commerce within the meaning of
Section 2(2) and (7) of the Act.
2. Sugar Workers Council of North America, I.L.A.,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Since October 16, 1964, and until September 1, 1965,
Respondent Council has attempted to cause and has
caused SuCrest Corporation to discriminate against
employee members of Local 1476 in violation of Section
8(a)(3) of the Act and has thereby engaged in unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A)
of the Act.
4. Since October 16, 1964, and until September 1, 1965,
Respondent SuCrest has discriminated against employee
members of Local 1476 in violation of Section 8(a)(3) and
(1) of the Act and has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. Since January 13, 1965, and until September 1, 1965,
Respondent Council has attempted to cause and has
caused Pepsi-Cola Company to discriminate against
employee members of Local 1476 in violation of Section
8(a)(3) of the Act and has thereby engaged in unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A)
of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Council and Respondent
SuCrest have engaged in unfair labor practices as
described and found, it will be recommended that they
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As heretofore stated, we have found that Respondent
SuCrest has violated Section 8(a)(3) and (1) of the Act.
However, it is our opinion that the initiative and impetus
for the violation rested primarily with Respondent
Council. We do not believe that either equitable
considerations or the policies of the Act dictate that
responsibility for remedying the unfair labor practices
should rest in equal proportions on both Respondents. We
Florence Printing Co v N.L R.B., 333 F 2d 289, 291 (C A 4), Old
King Cole, Inc v N L R B., 260 F 2d 530, 532 (C.A 6), Taylor
Forge & Pipe Works v NLRB , 234 F 2d 227, 231 (C A 7), cert.
denied 352 U S. 942 The bargaining obligation under Section
8(a)(5) of the LMRA is simply to bargain in good faith "Good
faith" is by definition a less exacting standard than "reasonable"
or "reasonable belief," since one may act in good faith albeit not
reasonably under objective standards However, even the
obligation to bargain in good faith is not discharged if the good
faith relates to an "erroneous view of the law" and, a fortiori ,
discrimination under Section 8(a)(3) is not excused by an
erroneous legal position
SUCREST CORP.
therefore recommend that the employee members of Local
1476 be repaid the Council dues exacted from them for the
period from October 1964 to September 1965, in the case
of SuCrest employees, and, for the period from January
1965 to September 1965, in the case of Pepsi employees.
The repayment of said dues to be the responsibility and
obligation of Respondent Council in the proportion of 75
percent of the total Council dues of the SuCrest employees
for the aforesaid periods and to be the responsibility and
obligation of Respondent SuCrest in the proportion of 25
percent of the total Council dues of the SuCrest employees
for the aforesaid periods. The repayment of said Council
dues of the Pepsi employees to be the entire responsibility
and obligation of Respondent Council. It is further
recommended that the dues be repaid with interest in
accordance with the principle in Isis Plumbing & Heating
Company, 138 NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, it is
recommended that Respondent Council, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause SuCrest Corporation
or Pepsi-Cola Company to discriminate against employee
members of Local 1476, I.L.A., AFL-CIO, in violation of
Section 8(a)(3) of the Act by requiring payment of dues to
Sugar Workers Council of North America, I.L.A.,
AFL-CIO, as a condition of employment, or in any like or
related manner causing or attempting to cause SuCrest or
Pepsi to discriminate against said employees in violation
of Section 8(a)(3) of the Act.
(b) In any like or related manner, restraining or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Repay to the employee members of Local 1476,
employed at SuCrest Corporation, 75 percent of Council
dues exacted for the period from October 16, 1964, to
September 1, 1965.
(b) Repay to the employee members of Local 1476,
employed at Pepsi-Cola, all Council dues exacted for the
period from January 13, 1965, to September 1, 1965.
(c) Post at its offices, meeting halls, and hiring halls,
copies of the attached notice marked "Appendix."35
Employers SuCrest Corporation and Pepsi-Cola Company
being willing, copies of said notice to be also posted at
their respective places of business in locations where
notices to employees in the category of Local 1476
members are customarily posted. Copies of said notice, to
be furnished by the Regional Director for Region 29, after
being duly signed by Respondent Council's,
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Council to
insure that said notices are not altered, defaced, or
covered by any other material . Sign and forthwith return
sufficient copies of said notice to the Regional Director
605
aforementioned for posting by SuCrest Corporation and
Pepsi-Cola Company, the employers being willing, at
locations aforementioned.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.36
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, it is
recommended that Respondent SuCrest, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against employee members of Local
1476 I.L.A., AFL-CIO, in violation of Section 8(a)(3) of the
Act by requiring payment of dues to Sugar Workers
Council of North America, I.L.A., AFL-CIO, as a
condition of employment or in any like or related manner
discriminating against said employees in violation of
Section 8(a)(3) of the Act.
(b) In any like or related manner, interfering with,
restraining , or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Repay to the employee members of Local 1476
employed at SuCrest Corporation, 25 percent of Sugar
Workers Council dues exacted from the period from
October 16, 1964, to September 1, 1965.
(b) Post at its place of business in Brooklyn, New York,
copies of the attached notice marked "AppendixA."37
Copies of said notice, to be furnished by the Regional
Director for Region 29, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.38
In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
36 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent taken to comply herewith."
31 See footnote 35, supra
" See footnote 36, supra
APPENDIX
NOTICE TO ALL MEMBERS OF SUGAR WORKERS COUNCIL
OF NORTH AMERICA , I.L.A., AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
606 DECISIONS OF NATIONAL
Relations Act, as amended , we hereby notify you that:
WE WILL NOT cause or attempt to cause SuCrest
Corporation or Pepsi-Cola Company to discriminate
against employee members of Local 1476, I.L.A.,
AFL-CIO, in violation of Section 8(a)(3) of the Act, by
requiring payment of dues to Sugar Workers Council
of North America , I.L.A., AFL-CIO, as a condition of
employment or in any like or related manner to
discriminate against said employees in violation of
Section 8( a)(3) of the Act.
WE WILL NOT , in any like or related manner,
restrain or coerce employees in the exercise of rights
guaranteed in Section 7 of the Act.
WE WILL repay to the employee members of Local
1476, employed at SuCrest Corporation , 75 percent of
Sugar Workers Council dues exacted for the period
from October 16 , 1964 , to September 1, 1965.
WE WILL repay to the employee members of Local
1476, employed at Pepsi - Cola Company , all Sugar
Workers Council dues exacted for the period from
January 13, 1965, to September 1, 1965.
SUGAR WORKERS COUNCIL
OF NORTH AMERICA, I.L.A.,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
4th Floor, Brooklyn, New York 11201, Telephone
596-5386.
LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discriminate against employee
members of Local 1476, I.L.A., AFL-CIO, in violation
of Section 8(a)(3) of the Act, by requiring payment of
dues to Sugar Workers Council of North America,
I.L.A., AFL-CIO, as a condition of employment or in
any like or related manner discriminate against said
employees in violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of rights guaranteed in Section 7 of the Act.
WE WILL repay to the employee members of Local
1476 employed at SuCrest Corporation , 25 percent of
Sugar Workers Council dues exacted for the period
from October 16, 1964 , to September 1, 1965.
SUCREST CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
4th Floor, Brooklyn, New York 11201, Telephone
596-5386.