Teamsters Local 776 (Carolina Freight Carriers)

National Labor Relations Board - Board Decisions

Nov 7, 1997

324 N.L.R.B. 1154 (N.L.R.B. 1997)

1154
324 NLRB No. 176
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and positions of the parties.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(b)(1)(A) by requiring the objecting Charging Party to pay the full
initiation fee without apportioning it into chargeable and noncharge-
able expenses, we rely on California Saw & Knife Works, 320
NLRB 224, 235 fn. 59 (1995).
3 There are no exceptions to the judge’s finding that the Respond-
ent did not breach its duty of fair representation by including in its
computation of ‘‘core’’ expenses chargeable to objecting nonmem-
bers, its costs of organizing other units. Thus, we do not reach the
issue raised by Chairman Gould. Chairman Gould agrees that there
were no exceptions to the judge’s dismissal of allegations that the
Union violated Sec. 8(b)(1)(A) by including organizing expenses as
chargeable in the computation of ‘‘core expenses.’’ But, as he stated
in his partial dissent in Teamsters Local 443 (Connecticut Limousine
Service), 324 NLRB 633, 638 (1997), in his view, the Supreme
Court’s decision in Ellis v. Brotherhood of Railroad, Airline &
Steamship Clerks, 466 U.S. 435 (1984), compels the finding that or-
ganizing costs are not chargeable as a representational expense under
the Act.
We note that the complaint does not allege that the language of
the union-security clause requiring unit employees to ‘‘become and
remain members in good standing’’ renders the clause facially in-
valid. Thus, we do not reach the issue raised by Chairman Gould.
Chairman Gould agrees that the complaint does not allege that the
union-security clause is facially invalid because of its requirement
that unit employees ‘‘become and remain members in good stand-
ing.’’ But, as stated in his partial dissent in Connecticut Limousine
Service, supra at 638, and his concurring opinion in Monson Truck-
ing, Inc., 324 NLRB 936, 941 (1997), he agrees with the Sixth Cir-
cuit, except to the extent that its reasoning relies on Pattern Makers’
League v. NLRB, 473 U.S. 95 (1985), that clauses containing such
language are facially invalid. See Buzenius v. NLRB, 124 F.3d 788
(6th Cir. 1997).
4 Because the parties stipulated at the hearing that the appropriate
unit consisted of employees represented by the Respondent at the
Employer’s Carlisle, Pennsylvania facility, we have modified the
Order to require that the Respondent mail notices only to those unit
employees employed at the Carlisle facility during the period of May
27, 1994, until the facility closed in 1995.
International Brotherhood of Teamsters, Local 776,
AFL–CIO (Carolina Freight Carriers Corpora-
tion) and Timothy M. Blosser. Case 5–CB–7884
November 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On March 24, 1997, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a supporting brief1 and
the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,2 and conclusions3 and to adopt the rec-
ommended Order as modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Inter-
national Brotherhood of Teamsters, Local 776, AFL–
CIO, Harrisburg, Pennsylvania, its officers, agents, and
representatives, shall take the action set forth in the
Order.
Substitute the following for paragraphs 2(a) and (b),
and reletter the subsequent paragraph:
‘‘(a) Within 14 days after service by the Region,
post at its business office and meeting halls copies of
the attached notice marked ‘‘Appendix.’’12 Copies of
the notice, on forms provided by the Regional Director
for Region 5, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places where no-
tices to employees and members are customarily post-
ed. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or
covered by any other material. Inasmuch as the Em-
ployer has gone out of business during the pendency
of these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to
all employees in the collective-bargaining unit de-
scribed herein who were employed by the employer at
its Carlisle, Pennsylvania facility at any time from
May 27, 1994 until the closing of that facility. The no-
tice shall be mailed to the last known address of each
of the employees, after being signed by the Respond-
ent’s authorized representative.’’
Stefan Jan Marculewicz, Esq., for the General Counsel.
Ira Weinstock, Esq., for the Respondent.
Timothy Blosser, pro se, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in York, Pennsylvania, on December 16,
1996, based on a charge filed by Timothy M. Blosser, an in-
dividual (Blosser or the Charging Party), on June 22, 1994,
and a complaint and notice of hearing which was issued on
March 30, 1995, by the Regional Director for Region 5 of
the National Labor Relations Board (the Board), as amended.
The complaint alleges that International Brotherhood of
Teamsters, Local 776, AFL–CIO (Respondent or the Union)
violated Section 8(b)(1)(A) of the National Labor Relations
Act (the Act) by failing to advise Blosser of his legal rights
with respect to his union membership and financial obliga-
tions when seeking to enforce a union-security agreement
with respect to his employment by Carolina Freight Carriers
Corporation (Carolina or the Employer). Respondent’s timely
filed answer denies the commission of any unfair labor prac-
tices.
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1155TEAMSTERS LOCAL 776 (CAROLINA FREIGHT CARRIERS)
1 The parties stipulated that the Employer ceased its operations in
the summer of 1995 and is no longer in business.
2 Included in that unit are the employees ‘‘in the classifications of
work covered by th[e] National Master Freight Agreement’’ and ap-
proved supplements thereto. The unit includes dock laborers and the
contract’s definition of employees obligated under the union-security
clause includes casuals.
3 All dates hereinafter are 1994 unless otherwise stated.
4 Electrical Workers IUE Local 444 (Paramax Systems), 311
NLRB 1031 (1993).
5 Communications Workers v. Beck, 487 U.S. 735 (1988).
6 His letter continued, setting out claimed ‘‘procedural safeguards
before there can be any collection/deduction of dues or fees from
nonmembers’’ following Chicago Teachers Union Local 1 v. Hud-
son, 475 U.S. 292 (1986). These included a requirement that the
dues be properly reduced before any payment is exacted, rather than
rebated, a justification of the amounts demanded and prompt review
of disputed amounts by an impartial decisionmaker. Hudson was a
public sector case, implicating state action and Constitutional limita-
tions not necessarily controlling, but providing guidance, to the pri-
vate sector. California Saw & Knife Works, 320 NLRB 224 (1995).
On the entire record, and after considering the briefs filed
by the General Counsel and Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Employer, a North Carolina corporation, with an of-
fice and place of business in Carlisle, Pennsylvania, was, at
all material times, engaged in the interstate transportation and
delivery of freight and commodities.1 In the 12 months pre-
ceding issuance of complaint, a representative period, the
Employer derived gross revenues in excess of $50,000 for
the transportation of freight and commodities from within the
State of Pennsylvania directly to points located outside of
that State. The complaint alleges, Respondent admits, and I
find and conclude that Carolina was at all times material an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Collective-Bargaining Relationship
Since before 1994, the Employer had recognized Respond-
ent (and the Teamsters National Freight Industry Negotiating
Committee) as the exclusive collective-bargaining representa-
tive of its employees in a unit appropriate for collective-bar-
gaining purposes.2 The collective-bargaining agreement in-
cludes a ‘‘Union Shop’’ clause which requires existing union
members to maintain their membership in good standing and
[a]ll present employees who are not members of the
Local union and all employees who are hired hereafter
[to] become and remain members in good standing of
the Local Union as a condition of employment on and
after the thirty-first (31st) day following the beginning
of their employment or on or after the thirty-first (31st)
day following the effective date of this subsection or
the date of this Agreement, whichever is later.
It further provides that an employee ‘‘who has failed to ac-
quire, or thereafter maintain, membership in the Union . . .
shall be terminated seventy-two (72) hours after his Em-
ployer has received written notice from . . . the Local
Union.’’
This agreement, the parties stipulated, had been maintained
and enforced with respect to the employees at Carolina’s
Carlisle, Pennsylvania terminal.
B. Blosser’s Hire
Carolina hired Timothy Blosser on May 2, 1994,3 as a cas-
ual dock laborer. As a casual, he had no set or guaranteed
hours; his schedule was determined each week. It was
Blosser’s understanding, consistent with the language of the
collective-bargaining agreement, as referenced in footnote 2,
that he was included within the bargaining unit and obligated
to pay dues and initiation fees pursuant to the union-security
clause.
On May 27, the Union sent Blosser a registered letter out-
lining what it asserted were his union membership and finan-
cial obligations. That letter stated:
Our Constitution states that after thirty (30) calendar
days, you are required to join the Local Union. . . .
Your initiation fee is $200.00 plus the first month’s
dues which is two times your hourly rate, plus one dol-
lar ($1.00) assessment for the death benefit. . . .
According to our records, your first day of employ-
ment at Carolina Freight was May 2, 1994. Therefore,
per the terms of our agreement with Carolina Freight
and as outlined above, you are hereby notified that you
must come into the Local Union office and join and/or
become a member in good standing in the Local Union
on, but not before June 2, 1994. Upon failure to comply
on this date, we shall contact your employer to inform
him that you are not eligible to work.
If you have any questions regarding Teamsters Local
Union No. 776 or are no longer employed by the
above-mentioned company, please feel free to call.
The letter omitted any reference to employee rights to opt
out of full membership or pay less than the full amount of
dues.
On June 1, Blosser responded to the Union’s demand. Cit-
ing Paramax Systems,4 he described, as a violation of the
duty of fair representation, a union’s maintenance and appli-
cation of a union-security clause requiring membership in
good standing without advising the unit employees that their
obligation was limited to the payment of uniform initiation
fees and dues.
Additionally, citing Beck,5 Blosser asserted that nonmem-
bers ‘‘do not have to pay a fee equal to union dues,’’ that
they ‘‘can only be required to pay a fee that equals their
share of what the union can prove is its costs of collective
bargaining, contract administration, and grievance adjustment
with their employer.’’6
Finally, asserting that the Union’s demand was not in
compliance with ‘‘the NLRB General Counsel’s memo-
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1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The letter, of course, was the result of communications with and
guidance by the ‘‘Right to Work’’ Committee.
8 He referenced, and attached, portions of NLRB Memorandum
GC 88–14 concerning the Beck guidelines.
randum on Beck and Hudson, he stated that he would file an
unfair labor practice charge against it with the Board.7
The Union replied on June 3, notifying Blosser that ‘‘the
fees established by our auditor is [sic] 87% of the two times
the hourly rate, and $1.00 for the death benefit, plus the
$200.00 initiation fee.’’ Accordingly, the dues, he was told,
would be $26.10 per month. He had, he was told, 7 days to
comply before the employer would be informed not to assign
him work.
The correspondence continued. Blosser replied, insisting
that, ‘‘before the union demands fees, an independent ac-
countant’s verification of the union’s cost of collective bar-
gaining, NOT the union’s interpretation’’ must be provided.
Because no such verification had been provided, Blosser as-
serted that no payment could be demanded and that he would
await receipt of that verification.8 He also asserted that the
initiation fee should similarly be reduced by the appropriate
percentage, 87 percent according to the Union’s calculation.
Finally, he requested a copy of the collective-bargaining
agreement.
On June 20, the Union sent Blosser the ‘‘latest auditor’s
verification of the core fees,’’ those for 1993, noting that the
computations of the core fees using the 1994 financial infor-
mation was in process. The computation showed the Union’s
expenses and the portion of those expenses, if any, which
were chargeable under Beck. It concluded that the expenses
chargeable to protesting members amounted to 86.7 percent
of the total expenses.
Blosser was also told that copies of the National Master
Freight Agreement and the supplement applicable to Carolina
are ‘‘given to all members when they become members of
the Union.’’ A hope was expressed that his dues and initi-
ation fee would be received within 72 hours.
On June 24, the Union sent Blosser a computer-generated
letter reiterating his obligation to pay the initiation fee and
dues. The sums demanded were the full dues and initiation
fee; there was no reference to any adjustments under Beck.
It also reiterated his obligation to ‘‘become a member in
good standing’’ with no reference to his right to chose finan-
cial core membership and it threatened to notify his em-
ployer that he was ineligible to work if he did not comply
within 72 hours.
Blosser wrote back on June 27, asserting that he was enti-
tled to the independent auditor’s complete audit or his com-
plete review, as well as his opinion letter, for the Local’s ex-
penses as well as those of the Union’s District and National
levels, where some of the dues money goes. He also threat-
ened to file an additional unfair labor practice charge if he
did not get a copy of the collective-bargaining agreement, to
which he claimed entitlement as a member of the unit.
On June 29, the Union gave him a copy of the contract.
The other information he sought, the Union stated, was
‘‘being investigated as to the legality;’’ he was promised a
subsequent response.
Blosser never became a member of the Respondent; nei-
ther did he pay it any fees or dues. He voluntarily left Caro-
lina’s employ on June 29.
C. Issues
The issues here all involve questions of whether the Union
breached its duty of fair representation, in violation of Sec-
tion 8(b)(1)(A) of the Act, by:
1. Failing, at various times, to notify Blosser of his
right to be and remain a nonmember of the Union, i.e.,
of those rights which derive from NLRB v. General
Motors, 373 U.S. 734 (1963).
2. Failing, at various times, including when it was at-
tempting to enforce the contractual union-security
clause and require payment of the full initiation fee and
dues, to provide Blosser with the information required
pursuant to Communications Workers of America v.
Beck, 487 U.S. 735 (1988).
3. Failing, at various times, to provide Blosser with
sufficient information and time within which to satisfy
whatever dues obligation he bore.
4. Insisting that Blosser pay the full initiation fee,
without apportionment for the Union’s nonrepresenta-
tional expenses.
5. Including, within the expenses deemed representa-
tional, the moneys spent by the Union in organizing
other workers.
Additionally, the Union raises the question of whether,
even assuming that its conduct is otherwise violative, those
violations are de minimus and not worthy of a remedy.
D. Analysis and Conclusions
1. The legal parameters
In General Motors, supra, the Supreme Court held that the
obligation to acquire membership in a union pursuant to a
union-security clause under Section 8(a)(3) had been, ‘‘whit-
tled down to its financial core.’’ That is, employees could
satisfy the membership requirements of a lawful union-secu-
rity clause by merely meeting the financial obligations of
such a clause, paying the uniform dues and initiation fees,
without acquiring such membership as would subject them to
the union’s regulations and discipline.
In Beck, supra, the Court narrowed the financial obliga-
tions which could be imposed to those which were ‘‘germane
to collective bargaining, contract administration, and griev-
ance adjustment.’’ Thus, it found that Section 8(a)(3) ‘‘au-
thorizes the extraction [from objecting nonmembers] of only
those fees and dues necessary to ‘performing the duties of
an exclusive representative of the employees in dealing with
the employer on labor-management issues.’’’
In California Saw & Knife Works, 320 NLRB 224, 231–
235 (1995), the Board held:
that if a union seeks to apply a union-security clause
to unit employees, it has an obligation under the duty
of fair representation to notify them of their Beck rights
before they become subject to obligations under the
clause.
. . . .
. . . that the Union has an obligation under the duty of
fair representation to give Beck rights notice to . . .
newly hired nonmember employees at the time the
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1157TEAMSTERS LOCAL 776 (CAROLINA FREIGHT CARRIERS)
9 I reject Respondent’s argument in brief that art. 3, sec. 1(e)(1)
clarifies the membership obligation so as to be consistent with Gen-
eral Motors. That section sets out an agency shop provision to be
applicable ‘‘in any state where the provisions of this Article relating
to Union shop cannot apply,’’ i.e., which have a ‘‘right to work’’
law. There is no evidence that it was applicable in Pennsylvania. I
find that its limitation to those states which prohibit traditional
union-security clauses renders it sufficiently ambiguous as to pre-
clude it being considered a notification of rights under General Mo-
tors.
Union seeks to obligate these newly hired employees to
pay dues . . .
. . . .
. . . that when or before a union seeks to obligate an
employee to pay fees and dues under a union-security
clause, the union should inform the employee that he
has the right to be or remain a nonmember and that
nonmembers have the right (1) to object to paying for
union activities which are not germane to the union’s
duties as bargaining agent and to obtain a reduction in
fees for such activities; (2) to be given sufficient infor-
mation to enable the employee to intelligently decide
whether to object; and (3) to be apprised of any internal
union procedures for filing objections. If the employee
chooses to object, he must be apprised of the percent-
age of the reduction, the basis for the calculation, and
the right to challenge these figures.
In footnote 57 of California Saw, the Board further noted
that:
. . . the Beck rights accrue only to nonmembers. Thus,
in order to fully inform nonmember employees of their
Beck rights, a union must tell them of this limitation,
and must tell them of their General Motors right to be
and remain nonmembers. [Id. at 235.]
Application of the legal precedent to the stipulated facts as
set forth above requires, for most of the issues, little discus-
sion.
2. General Motors notice
The union-security clause in Respondent’s collective-bar-
gaining agreement requires all employees ‘‘to become and
remain members in good standing.’’9 On May 27, and on
June 24, the Union demanded that Blosser ‘‘join and/or be-
come a member in good standing in the Local Union.’’ At
no time was he told that he had a right to be and remain
a nonmember. By failing to so inform him, Respondent
breached the duty of fair representation owed to him as a
member of the bargaining unit and thereby violated Section
8(b)(1)(A). California Saw & Knife, supra; Paperworkers
Local 1033 (Weyerhaeuser Paper Co.), 320 NLRB 349–350
(1995). In the latter case, the Board noted that employees
were apt to be misled as to the extent of their obligations
by a demand that they join and pay dues. It stated:
Because of this potential to mislead, we held [in
California Saw] that the union acted arbitrarily and in
bad faith in violation of the duty of fair representation
by failing to give notice of Beck rights to newly hired
nonmember employees. [Fn. omitted.] We accordingly
held that basic considerations of fairness obligate a
union to notify newly hired nonmember employees of
their rights under Beck and General Motors, at the time
the union first seeks to obligate these newly hired non-
member employees to pay dues.
. . . .
. . . we hold that in order for all unit employees sub-
ject to a union-security provision to exercise their Beck
rights meaningfully, the law requires that notice of
those rights include notice that the only way in which
they can do so is to exercise the right under General
Motors to become nonmembers. On this basis, we
[find] that the Respondent violated Section 8(b)(1)(A)
by failing to give the requisite notice.
2. Beck rights
As set forth in California Saw, a union, when it seeks to
enforce a union-security clause, is required to inform the em-
ployees of their rights under Beck. Thus, they must tell the
employees that they are not required to pay the full dues and
fees, give those employees information on which to intel-
ligently decide whether to object and apprise them of the
union’s internal procedures for filing objections. Respondent
did none of these when it made repeated demands upon
Blosser that he join the Union and pay dues. It thus failed
in its duty of fair representation, in violation of Section
8(b)(1)(A).
3. Failure to afford adequate time to act—threat
of discharge
In its various demands that he pay the dues and the initi-
ation fee and join the Union, Respondent gave Blosser only
3 to 7 days in which to decide and act, on pain of the loss
of his job if he failed to comply. At the times it did so, Re-
spondent had not yet provided him with the Beck notifica-
tions to which he was entitled. The General Counsel argues
that by failing to give Blosser a reasonable time within
which to satisfy his dues obligation, Respondent further
breached its duty of fair representation. In support of that ar-
gument, the General Counsel cites Electrical Workers IBEW
Local 99 (Electrical Maintenance), 312 NLRB 613 (1993);
and Radio Electronic Officers Union (Sea-Land Service Inc.),
306 NLRB 43 (1992), wherein the employees were given but
5 and 15 days, respectively, to meet their dues obligations
before the unions involved caused their discharges.
Here, while Respondent told Blosser that he had but 3 to
7 days to join and pay before it would cause the employer
to discharge him, it never sought his discharge. Rather, it let
those self-imposed deadlines pass, while exchanging cor-
respondence with him concerning the extent of his dues obli-
gation. Accordingly, I find that the General Counsel has
failed to establish that the Union has breached its duty of fair
representation toward Blosser in this particular aspect. To the
extent that the complaint alleges this to be a breach of its
duty of fair representation by failing to give him adequate
time to meet whatever dues obligation he had, I shall rec-
ommend that it be dismissed.
However, the complaint further alleges this conduct more
generally as unlawful restraint and coercion. I agree. By
threatening to cause his termination if he did not join the
Union in an unreasonably short time and without the infor-
mation necessary for him to reasonably decide whether to as-
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1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The Supreme Court, in Ellis v. Railway Clerks, 466 U.S. 435,
at 452–453 (1984), rejected the chargeability of organizing expenses
as well as that of extra-unit litigation expenses. The Board, in Cali-
fornia Saw, supra at 238, expressly recognized what the Court had
said with respect to extra-unit litigation but noted that those ‘‘hold-
ings were premised in constitutional considerations.’’ It found
‘‘precedent grounded in constitutional considerations not to be bind-
ing in the context of the NLRA’’ and did ‘‘not read Ellis . . . as
foreclosing our conclusion that some litigation may be of value to
employees even when the lawsuit at issue arises out of the contract
or circumstances of employees in a different unit.’’ Organizing ex-
penses and those for litigation are remarkably similar as to their im-
pact on other units and I find the Board’s logic compelling. Indeed,
given the differences in unit compositions and the nature of organiz-
ing under the RLA, the argument that such expenses are recoverable
under the NLRA is all the more compelling.
sume objector status, Respondent has restrained and coerced
him in violation of Section 8(b)(1)(A).
4. Demand for the full initiation fee
Respondent’s repeated demands on Blosser continued to
seek payment of the full $200 initiation fee, even after it ac-
knowledged that some portion of the dues were not charge-
able to objectors as representational expenses. The General
Counsel contends that Respondent’s failure to apply the ap-
portionment to both dues and the initiation fees breached its
duty of fair representation. I agree. The Court, in Beck, at
the very outset of its decision, noted that Section 8(a)(3) per-
mitted union-security agreements which would require em-
ployees to pay ‘‘periodic dues and initiation fees as a condi-
tion of continued employment.’’ It phrased the issue as
whether that section permitted ‘‘a union, over the objection
of dues-paying nonmember employees, to expend funds so
collected on activities unrelated to collective bargaining, con-
tract administration, or grievance adjustment.’’ (Emphasis
added.) The Court made no distinction between funds col-
lected by unions as periodic dues or as initiation fees. Simi-
larly, at the conclusion of its Beck decision, the Court held
that Section 8(a)(3) authorized ‘‘the exaction of only those
fees and dues necessary to ‘performing the duties of an ex-
clusive representative of the employees in dealing with the
employer on labor-management issues.’’’
The complaint expressly raised the issue of the Union’s at-
tempt to collect the full initiation fee from Blosser. Respond-
ent offered no evidence that funds derived from initiation
fees were expended differently than those derived from peri-
odic dues and presented no argument on brief that initiation
fees should be exempt from the Beck apportionment. Accord-
ingly, I find that by seeking to require Blosser, a nonmember
objector, to pay the full initiation fee, Respondent breached
its duty of fair representation and thereby violated Section
8(b)(1)(A).
5. Organizing expenses
In its computation of ‘‘core fees,’’ the Union included, as
chargeable to objecting employees, its organizing expenses.
The complaint alleges that by the inclusion of such expenses
the Union has breached its duty of fair representation.
In Beck, the Court pointed out that the requirement of
‘‘membership’’ within the ambit of Section 8(a)(3) had been
‘‘whittled down to its financial core,’’ pursuant to General
Motors. It further concluded that this ‘‘financial core’’ did
not include the support of ‘‘union activities beyond those
germane to collective bargaining, contract administration, and
grievance adjustment.’’ Beck, supra at 745. The Board, in
California Saw, applied this standard to all expenses, includ-
ing litigation expenses. It held, in language which I deem di-
rectly applicable to organizing expenses:
[A] union does not breach its duty of fair representation
by charging objecting employees for litigation expenses
as long as the expense is for ‘‘services that may ulti-
mately inure to the benefit of the members of the local
union by virtue of their membership in the parent orga-
nization.’’ [Quoting from Lehnert v. Ferris Faculty
Assn., 500 U.S. 507 at 524 (1991).] We believe that
this narrowly tailored approach is consistent with the
congressional intent in enacting the first proviso to Sec-
tion 8(a)(3)—to avoid the problem of ‘‘free riders’’—
in those circumstances where the union undertakes liti-
gation on behalf of one bargaining unit which is likely
to benefit other bargaining units. [Fn., noting that then
Member Cohen would find the violation, omitted.]
It is axiomatic that the organizing of other bargaining
units, at least within the same industry and/or geographical
area, strengthens a union’s hand in bargaining with the em-
ployer of objecting employees. Successful organization of the
employees of an employer’s competitors precludes that em-
ployer from arguing, at the bargaining table, that the lesser
wages and benefits paid by his union-free competition pre-
vents him from granting wage and benefit increases sought
by the union which represents his employees. It also tends
to increase the support which his employees will receive
should they find it necessary to engage in economic action,
such as a strike. Organizing of other employees thus inures
‘‘to the benefit of the members of the local union by virtue
of their membership in the parent organization.’’
Moreover, in order to avoid the ‘‘free rider’’ problem, re-
ferred to above, it is essential that a union be permitted to
charge objecting nonmembers for its expenses in organizing
other units. The bargaining unit in which the objector finds
him or herself has already been organized. The expense of
that organizational effort was borne by the union (and its
members in previously organized units) sometime in the past;
it can no longer be charged to current employees. Only by
permitting a union to pass along the cost of its current orga-
nizing efforts to the members of its already organized units
can it equitably recoup those expenses.10
It may be that some organizing expenses are too remote,
in terms of industry or geography, to pose more than a theo-
retical benefit to the objector’s bargaining unit. However,
here, as in California Saw, supra, 320 NLRB at 239, ‘‘the
General Counsel litigated this case on the proposition that
[organizing expenses] are necessarily nonchargeable.’’ The
Board disagreed with the proposition that litigation expenses
were nonchargeable ‘‘as a matter of law’’ and dismissed the
allegation. I find that organizing expenses are not ‘‘nec-
essarily nonchargeable . . . as a matter of law’’ and rec-
ommend dismissal of this allegation.
6. De minimus violations
Respondent asserts that even if some or all of its conduct
is deemed violative, those violations are de minimus. Coun-
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1159TEAMSTERS LOCAL 776 (CAROLINA FREIGHT CARRIERS)
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
12 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
sel points out, as the facts clearly show, that Blosser was
fully aware of his Beck and General Motors rights. He did
not need the Union to tell him that he could remain a non-
member or that he could pay less than the full amount of
dues and fees. Indeed, he knew that he had a right to object
and he described for the Union the information to which he
was entitled.
However, he was not in possession of all of the informa-
tion to which he was entitled. He was entitled to be told
what percentage of the dues and fees were chargeable and
the basis of that calculation, he was entitled to sufficient in-
formation to enable him to decide whether to object and he
was entitled to be apprised of his right to challenge the
Union’s figures and of any internal union procedures for fil-
ing objections.
More importantly, the test is not whether the Union’s con-
duct would restrain or coerce this particular employee but
whether ‘‘the alleged offender engaged in conduct which
tends to . . . restrain or coerce employees in the exercise of
the rights guaranteed them in the Act.’’ Steelworkers Local
5550, 223 NLRB 854, 855 (1976); Operating Engineeers
Local 542 (Giles & Ransome, Inc.) v. NLRB, 328 F.2d 850,
852 (3d Cir. 1964), cert. denied 379 U.S. 826 (1964). The
Board, in California Saw and subsequent cases applying the
Beck principles, has found this conduct to have such a tend-
ency.
Respondent also points out that Blosser voluntarily ceased
his employment with Carolina Freight before the Union ef-
fectuated its threats or secured the payment of any dues or
fees from him. Additionally, it points out, Carolina Freight
has ceased all of its operations. However, the salient point
is that Respondent is still functioning as a labor organization,
applying the same agreement, or its successor, to other em-
ployers and other employees. A remedy is thus still called
for.
CONCLUSIONS OF LAW
1. By failing to notify Timothy Blosser, an employee,
when first seeking to obligate him to pay fees and dues
under a union-security clause, of his right to be and remain
a nonmember, and of the rights of nonmembers under Com-
munications Workers v. Beck, 487 U.S. 735 (1988), to object
to paying for union activities not germane to the Union’s du-
ties as bargaining agent, and to obtain a reduction in fees for
such activities, the Union has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(b)(1)(A) and Section 2(6) and (7) of the Act.
2. By failing to reduce the initiation fee demanded of Tim-
othy Blosser by the percentage attributable to nonchargeable
expenses, the Union has violated Section 8(b)(1)(A).
3. By threatening to cause the discharge of Timothy
Blosser for failing to meet his alleged union membership ob-
ligations in an unreasonably short period of time and without
providing him with the information required under NLRB v.
General Motors, 373 U.S. 734 (1963), and Beck, supra, the
Union has violated Section 8(b)(1)(A).
4. The Respondent has not, in any other manner alleged
in the complaint, violated the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, International Brotherhood of Teamsters,
Local 776, AFL–CIO, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Failing to notify employees, when first seeking to obli-
gate them to pay fees and dues under a union-security clause,
of their rights to be and remain nonmembers, and of the
rights of nonmembers under Communications Workers v.
Beck, 487 U.S. 735 (1988), to object to paying for union ac-
tivities not germane to the Union’s duties as bargaining
agent, and to obtain a reduction in fees for such activities.
(b) Failing to reduce the initiation fee demanded of object-
ing nonmember employees by the percentage attributable to
nonchargeable expenses.
(c) Threatening to cause the discharge of employees for
failing to meet their alleged union membership obligations in
an unreasonably short period of time and without providing
them with the information required under NLRB v. General
Motors, 373 U.S. 734 (1963), and Beck, 487 U.S. 735
(1988).
(d) 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 necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
business office and meeting halls, copies of the attached no-
tice marked ‘‘Appendix.’’12 Copies of the notice, on forms
provided by the Regional Director for Region 4, 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 in-
cluding all places where notices to employees and members
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. Inasmuch as the
Employer has gone out of business during the pendency of
these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to the Charging
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1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 See fn. 12, supra.
Party and all former employees employed by the Employer
at any time since June 22, 1994, as provided below.
(b) Within 14 days after service by the Region, mail a
copy of the attached notice marked ‘‘Appendix’’13 to all em-
ployees in the collective-bargaining unit described herein
who were employed by the Employer at its Carlisle, Pennsyl-
vania facility at any time from the onset of the unfair labor
practices found in this case until the closing of that facility.
The notice shall be mailed to the last known address of each
of the employees after being signed by the Respondent’s au-
thorized representative.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail to notify employees, when first seeking
to obligate them to pay fees and dues under a union-security
clause, of their rights to be and remain nonmembers of the
Union and of the rights of nonmembers under Communica-
tions Workers v. Beck, 487 U.S. 735 (1988), to object to pay-
ing for union activities not germane to the Union’s duties as
bargaining agent and to obtain a reduction in fees for such
activities.
WE WILL NOT fail to reduce the initiation fee demanded
of objecting nonmember employees by the percentage attrib-
utable to nonchargeable expenses.
WE WILL NOT threaten to cause the discharge of employ-
ees for failing to meet their alleged union membership obli-
gations in an unreasonably short period of time and without
providing them with the information required under NLRB v.
General Motors, 373 U.S. 734 (1963), and Communications
Workers v. Beck, 487 U.S. 735 (1988).
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, LOCAL 776, AFL–CIO
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