Teamsters Local 420 (Gregg Industries)

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 603 (N.L.R.B. 1985)

TEAMSTERS LOCAL 420 (GREGG INDUSTRIES)
Building Material and Dump Truck Drivers, Local
420, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America and Gregg Industries . Case 21-CB-
7511
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On a charge filed on 9 October 1980 by Gregg
Industries (the Charging Party or the Employer),
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
21, issued a complaint and notice of hearing on 15
January 1981 against Building Material and Dump
Truck Drivers, Local 420, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Respondent or the Union).
The complaint alleges that the Respondent violated
Section 8(b)(1)(A) of the National Labor Relations
Act.' The Respondent filed an answer to the com-
plaint in which it admitted certain allegations of
the complaint and denied others, including all those
charging it with the commission of any unfair labor
practices.
On 21 July 1981 the General Counsel, the
Charging Party, and the Respondent Union entered
into a stipulation in which they agreed to certain
facts relevant to the issues in this proceeding. They
also agreed to waive a hearing before an adminis-
trative law judge, the issuance of an administrative
law judge's decision, and the presentation of any
evidence other than that contained in the stipula-
tion of facts. By order dated 18 November 1981
the Board approved the stipulation and transferred
the proceeding to the Board. Thereafter, the Gen-
eral Counsel, the Charging Party, and the Re-
spondent filed briefs with the Board
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Charging Party, Gregg Industries, is a Cali-
fornia corporation with a place of business at El
Monte, California, where it has been engaged in
the manufacture of iron castings. During the past
year, Gregg Industries purchased and received
goods and products at its California operations
' Pursuant to Sec 102 17 of the National Labor Relations Board Rules
and Regulations , the Regional Director for Region 21, on 10 July 1981,
filed an amendment to the complaint deleting the words , "interfered
with" and "interfering with" from par 7 of the complaint
603
valued in excess of $50,000 directly from suppliers
located outside the State of California. According-
ly, we find, in agreement with the parties, that
Gregg Industries has been at all times material an
employer engaged in commerce and in operations
affecting commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction in this
proceeding.
II. THE LABOR ORGANIZATION
Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
On 17 September 1980 the Respondent Union
filed a petition2 to represent all employees em-
ployed by Charging Party Gregg Industries at its
facility located at 10460 Hickson Street, El Monte,
California, excluding all office clerical employees,
professional employees, guards, watchmen, and su-
pervisors as defined in the Act.
At a meeting held 27 September 1980, during
which union representation was discussed, the Re-
spondent's business representative Horace Miran-
da3 stated to a substantial number of the Employ-
er's employees that if they paid dues before the Re-
spondent was selected as their collective-bargaining
representative the normal $180 initiation fee would
be waived. At another meeting of employees held
11 October 1980, Miranda promised that the em-
ployees could have a reduced initiation fee of $10
until 24 or 25 October 1980. Pursuant to Miranda's
promises, a number of the employees paid $10 per
month to the Respondent.
Following the filing of the instant charge, the
Regional Director stayed the processing of the Re-
spondent's representation petition, and on 10 July
1981 the Respondent submitted a request to with-
draw the petition. On 13 July 1981 the Regional
Director for Region 21 issued an order permitting
withdrawal of the petition with prejudice.
The complaint issued 15 January 1981 and as
amended 10 July 1981 alleges that the Respondent,
by promising employees that they would be per-
mitted to loin the Union for $10 dues rather than
$180 initiation fee if they joined before the Re-
spondent was selected as their collective-bargaining
representative, restrained and coerced, and is re-
straining and coercing, employees in the exercise of
the rights guaranteed them in Section 7 of the Act,
2 Case 21-RC-16515
3 The parties have stipulated that, at all times material herein, Miranda
was acting as an agent of the Respondent Union within the meaning of
Sec 2(13) of the Act
274 NLRB No. 85
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thereby engaged in , and is engaging in, unfair
labor practices under Section 8(b)(1)(A) of the Act.
IV. CONTENTIONS OF THE PARTIES
The Respondent, citing NLRB v. Savair Mfg.
Co., 414 U.S. 270 (1973), acknowledges that the
conduct it engaged in constituted an "improper in-
ducement" sufficient to invalidate an election if one
had been held, but nonetheless asserts there is no
basis in law for finding that such conduct also con-
stitutes an unfair labor practice under Section
8(b)(1)(A) of the Act.
The General Counsel, on the other hand, asserts
that the Respondent's conduct violated Section
8(b)(1)(A) because it is analogous to an employer's
promise of economic benefits to influence an elec-
tion which in addition to being objectionable con-
duct violates Section 8(a)(1).
The Charging Party also analogizes the Union's
conduct to an employer's unlawful promise of ben-
efits and, in addition, contends that just as an em-
ployer's objectionable conduct is frequently found
to violate Section 8(a)(1) also, so should a union's
objectionable conduct be violative of 8(b)(1)(A). It
further likens the effect of the Union's conduct
here to an unlawful attempt to make union mem-
bership a precondition of employment; to a dis-
criminatory operation of a hiring hall against non-
members of the Union; and to a threat "to fire"
employees who fail to join the Union before the
election.
V. DISCUSSION
We agree with the General Counsel's and the
Charging Party's contentions that the Respondent
violated Section 8(b)(1)(A) of the Act by offering
to waive or reduce initiation fees for those employ-
ees who joined the Respondent Union prior to the
election. However, we do so for reasons analogous
to those relied on by the Supreme Court in NLRB
v. Savair Mfg. Co., 414 U.S. 270 (1973).
In Savair, the Supreme Court found that a
union's offer to waive initiation fees for only those
employees joining prior to the election warranted
setting aside the election. Although the Court was
not faced with the question of whether such an
offer also violated Section 8(b)(1)(A) of the Act,
the Court's analysis of the offer's impact on em-
ployee rights persuades us that such an offer is also
an unlawful restraint or coercion within the mean-
ing of Section 8(b)(1)(A). The Court reasoned that
such an offer was offensive for two reasons: First,
because it amounted to endorsement buying ena-
bling the union to paint a false portrait of employee
support for it and in turn influence other employ-
ees to give their support to the union, and second
and more importantly for present purposes, such an
offer had a coercive aspect to it.
Thus, the Court analogized the union's offer to
waive initiation fees to an employer's promise to
increase fringe benefits during a union campaign-a
practice found objectionable in NLRB v. Exchange
Parts Co., 375 U.S. 405 (1964), because, as quoted
by the Court in Savair, employees were "not likely
to miss the inference that the source of benefits
now conferred is also the source from which future
benefits must flow and which may dry up if it is
not obliged." NLRB v. Savair Mfg. Co., 414 U.S.
270, 280 quoting id. at 409. The Court further
stated, as follows:
If we respect, as we must, the statutory right
of employees to resist efforts to unionize a
plant, we cannot assume that unions exercising
powers are wholly benign towards their an-
tagonists whether they be nonunion protago-
nists or the employer. The failure to sign a
recognition slip may well seem ominous to
nonunionists who fear that if they do not sign
they will face a wrathful union regime, should
the union win. [Savair at 280-281.]
The above-quoted language convinces us that the
Savair Court recognized that restrictive offers to
waive initiation fees, when made in the course of a
union campaign, have a reasonable tendency to
coerce those employees who desire to refrain from
joining or assisting the union at a time when they
were within their Section 7 rights to do so.4 There-
fore, the Respondent's conduct here was sufficient
to fall within the scope of 8(b)(1)(A) proscription.
Our reading of the legislative history of the
"coerce" and "restrain" language of Section
8(b)(1)(A) further convinces us of this view. Thus,
Senator Ball, a cosponsor of the amendment which
became Section 8(b)(1)(A), said of the amendment:
"What we are trying to reach here, it seems to me,
is the coercive activity in which some unions and
agents indulge in their organizational and election
campaigns." I Leg. Hist. 1203 (LMRA 1947). In
subsequent debate on the amendment, Senator Ball
supplied, among others, the following example of
union conduct at which the amendment was direct-
ed: "If an individual is not willing to ,loin, they [the
union] threaten that when they get a majority and
obtain a contract they will charge him twice as
high an initiation fee, or higher dues." Id. at 1200.
Senator Taft, another cosponsor of the amendment,
offered a similar example. He stated: "in the case of
4 See NLRB v Plasterers Local 90, 606 F 2d 189 (7th Cir 1979), Oper-
ating Engineers Local 542 v NLRB, 328 F 2d 850, 852-853 (3d Cir 1964),
cert denied 379 U S 826, NLRB v Service Employees Local 254, 535 F 2d
1335 (1st Cir 1976)
TEAMSTERS LOCAL 420 (GREGG INDUSTRIES)
unions, in the first place, there might be a threat
that if a man did not join, the union would raise
the initiation fee to $300, and he would have to pay
$300 to get in . . . ." Id. at 1205.
These two examples supplied by the chief spon-
sors of the 8(b)(1)(A) amendment leave little room
to doubt that the amendment was intended to pro-
scribe union solicitation of membership with threats
of exacting higher fees later when maintenance of
membership may be a condition of employment.
See Maritime Union 5 a case decided shortly after
enactment of the Taft/Hartley amendment, in
which the Board also reviewed the legislative his-
tory of Section 8(b)(1)(A) and stated that it strong-
ly suggests that Congress wanted to eliminate,
among other things, "the use by unions of threats
of economic action against specific individuals in
an effort to compel them to join."6
The fact that here, unlike in the examples sup-
plied by Senators Ball and Taft, the Union offered
to reduce or waive its customary fee for those em-
ployees who joined prior to the election rather
than to increase its fee for those who joined after-
ward does not alter the offer's coercive nature.
Rather it is the suggestion of discrimination predi-
cated on an employee's exercise of his Section 7
rights which underlies both types of proposals that
brings each into conflict with the prohibitions of
the Act. And, it is a union's potential acquisition of
majority status with the impending power to en-
force the higher discriminatory rate which supplies
both with their coercive force and renders them
unfair labor practices. We thus conclude that the
Respondent's offer to waive or reduce its initiation
fee for those employees who joined prior to the
election violated Section 8(b)(1)(A) of the Act.7
VI. THE REMEDY
Having found that the Respondent had engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act, we
shall order that it cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the purposes of the Act.
The Board, on the basis of the foregoing facts
and entire record, makes the following
5 78 NLRB 971 (1948), enfd 175 F 2d 686 (2d Cir 1949)
6 Id at 985
' In addition to the rationale of the decision, Chairman Dotson is of
the view that Sec 8(b)(I)(A) is the counterpart of Sec 8(a)(1) and is as
broad in scope See Helton v NLRB, 656 F 2d 883 (D C Cir 1981) Ac-
cordingly, since it would violate Sec 8(a)(1) if the employer had offered
an economic inducement to influence the employees' decision on union
representation, it violates Sec 8(b)(1)(A) for the union to do likewise
CONCLUSIONS OF LAW
605
1. Building Material and Dump Truck Drivers,
Local 420, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica is a labor organization within the meaning of
Section 2(5) of the Act.
2. Gregg Industries is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
3. By inducing employees to join the Respondent
by offering to waive or reduce its initiation fee for
only those employees who joined the Respondent
prior to the election , the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Building Material and Dump
Truck Drivers, Local 420, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Coercively soliciting membership with offers
to waive or reduce initiation fees for only those
employees who join the Respondent in advance of
a representation election.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its business office and meeting halls
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Furnish the Regional Director for Region 21
signed copies of such notices for posting by Gregg
8 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industries if willing, in places where notices to em-
ployees are customarily posted.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively solicit membership
from employees of Gregg Industries with offers to
waive or reduce our initiation fee for only those
employees who became members in advance of a
representation election.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
BUILDING MATERIAL AND DUMP
TRUCK DRIVERS , LOCAL 420, INTER-
NATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS , WAREHOUSE-
MEN AND HELPERS OF AMERICA