Teamsters Local Union No. 326

National Labor Relations Board - Board Decisions

Dec 3, 1980

253 N.L.R.B. 551 (N.L.R.B. 1980)

TEAMSTERS LOCAL UNION NO) 326h
General Teamsters Local Union No. 326, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America and The Firestone Plastics Compa-
ny. Case 5-CB-2556
December 3, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.LO
On June 25, 1980, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
and the Charging Party filed exceptions and sup-
porting briefs, and Respondent filed a brief in op-
position to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
I The General Counsel and the Charging Party have excepted to cer-
tain credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect Standard Dry Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir 1951) We have carefully examined the record and find
no basis for reversing his findings. In so holding, however, we do not
adopt the Administrative Law Judge's overly broad interpretation of
Eastern Engineering & Elevator Co., Inc., 247 NLRB No. 4 (1980).
In addition, in adopting the Administrative Law Judge's finding that
Respondent did not violate Sec. 8(bH5) of the Act, we find t unnecessary
to rely on his statement in the penultimate paragraph of his "Conclu-
sions" section that "My review of the Board cases leads me to conclude
that an initiation fee which is less than two times the weekly earnings of
the employees affected is not, absent unusual factors, excessive."
Finally, we do not rely on the Administrative Law Judge's application
of the following cases cited in fn. 16-19 of his Decision: New York Local
II. National Association of Broadcast Employees and Technicians. AFL-
CIO (American Broadcasting Company. A Division of American Broadcast-
ing Companies. Inc.), 164 NLRB 242 (1967); General Longshore Workers.
International Longshoremen ' Association, Local Union No 1419, AFL-CIO
(New Orleans Steamship Association), 186 NLRB 674 (1970); Local Union
No. 749, International Brotherhood of Boilermakers. Iron Ship Builders,
Blacksmiths, Forgers Helpers. AFL-CIO (California Blowpipe d Steel
Co., Inc), 192 NLRB 502 (1971); and Motion Picture Screen Cartoonists,
Local 841, International Alliance of Theatrical Stage Employees and Moving
Picture Operators of US. d Canada. AFL-CIO (National Broadcasting
Company. Inc.), 225 NLRB 994 (1976). Thus, in each of the cases cited,
the initiation fee which the Administrative Law Judge herein pointed to
as having been found reasonable by the Board was not the initiation fee
alleged to have been violative of Sec. 8(b)(5), but rather the original fee.
abandoned in favor of an upwardly revised figure
253 NLRB No. 74
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMINT O t IFl' CAS
HERBERT SIIBERMAN, Administrative Law Judge:
Upon a charge of unfair labor practices filed by The
Firestone Plastics Company, herein called the Company,
on February 16, 1978, a complaint was issued on July 11.
1979, alleging that the Respondent, General Teamsters
Local Union No. 326, affiliated with the International
Brotherhood ot Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union or
Local 326, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(5) of the
National Labor Relations Act, as amended. Respondent
duly filed an answer to the complaint denying that it had
engaged in the alleged unfair labor practices. A hearing
in this proceeding was held in Baltimore, Maryland, on
October 29 and December 10, 1979. At the hearing Re-
spondent amended its answer to allege the statute of limi-
tations as an affirmative defense. Respondent in its brief
does not pursue this defense and, in any event, I find that
there is no merit thereto. Motion Picture Screen Cartoon-
ists, Local 839, 1. A. T S. E. (Animated Film Producers
Association, et al.), 121 NLRB 1196, fn. 2 (1958). In sub-
stance, the complaint alleges that the Union, which is the
recognized representative of a unit of the Company's em-
ployees and which has a collective-bargaining agreement
covering such employees that includes a union-security
clause, since August 17, 1977, has required employees
covered by the agreement as a condition of acquiring
membership to pay an initiation fee of $300 which fee is
alleged to be excessive. Following the close of the hear-
ing each of the parties filed briefs with me.
Upon the entire record in the case, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
The Company, an Ohio corporation, manufactures
resins and related compounds at its Perryville, Maryland,
location. The Company's annual purchases of products
and supplies which are shipped to its Maryland facility
through channels of interstate commerce exceed $50,000
in value. The Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act and during the times material
hereto has been the recognized collective-bargaining rep-
resentative of a unit of the Company's employees.
1. THE ALLEGED UNFAIR LABOR PRACTICES
The Union, which, under its charter from the Interna-
tional, has jurisdiction in the State of Delaware and in
adjacent areas in Maryland and Pennsylvania. is a miscel-
laneous local; that is, it represents employees in diverse
industries and occupations. It has agreements with ap-
551
I)LCISI()NS OF NATIONAL LABOR RELATIONS BOARD
proximately 160 employers and has a membership of be-
tween 2,7(00 and 2,800 persons. The Union has been the
representative of a unit of the Company's production and
laboratory employees at its Perryville, Maryland, plant
since 1969 and during the times relevant hereto has been
party to a collective-bargaining agreement with the
Company which contains a valid union-security clause
requiring membership in the Union as a condition of em-
ployment. The Company manufactures polyvinyl chlo-
ride resins at its Perryville facility.
On April 1, 1977, the Union increased its initiation fee
from $100 to $300. The increased fee was applicable to
the represented employees of all employers with whom
the Union had collective-bargaining agreements, except
one for whose employees there was a lower initiation fee
of $10. Also, a special initiation fee of only $10 is re-
quired of employees in newly organized units until the
first collective-bargaining agreement is executed where-
upon the initiation fee becomes $300. Pursuant to a re-
quest made on behalf of the employees of the Company,
in May or June 1977 the time within which newly hired
employees of the Company were required to pay the ini-
tiation fee was extended from 30 days to 60 days.
Thomas Byron, secretary-treasurer of the Union, testi-
fied that the only reason the Union increased its initiation
fee was to improve its financial situation. He explained
that the expenses of the Union during the 2 preceding
years had exceeded its income and the decision to raise
additional revenue by increasing the initiation fee rather
than by increasing the dues was made because the dues
had been raised $2 per month effective in October 1976
with an additional $1 per month effective in October
1977 and the Union therefore was reluctant to increase
further its regular dues. As the allegation in this case is
that the initiation fee is excessive, and not that it is dis-
criminatory, the specific reasons for the increase in the
initiation fee and whether or not the Union's financial
objectives could have been better achieved in some other
manner, as for instance by more efficient management of
its affairs, would appear to be irrelevant to the issues in
this case.
The statute does not define the term "excessive."' The
legislative history of the Act shows that the purpose of
Section 8(b)(5) was to prevent the circumvention of Sec-
tions 8(a)(3) and 8(b)(2), which interdict closed shops, by
the device of requiring new members to pay exorbitant
initiation fees. 2
In support of his complaint the General Counsel ad-
duced evidence regarding the initiation fees imposed by
the labor organizations which represent employees of
Sec. (b(5) reads
to require of employees covered by an agreement authorized
under subsection (a}(3) the payment, as a condition precedent to be-
coming a member or such organization, of a fee in an amounlt which
the IBoard finds excessive or discriminatory under all the circum-
stances. In making such a finding, the Board shall consider, among
other relevalt factors, the practices and customs of labor organiza-
tions in the particular industry. and the wages currently paid to the
employees affected
11 Leg Itist 1544) (LMRA. 1974). The briefs filed by the General
Counsel and by Respondent contain good summaries of the legislative
history of Sec S(b)(5) It. therefore, is nriot necessary to repeat here what
has been well explicated in the briefs.
other polyvinyl chloride resins manufacturers and by the
labor organizations which represent employees of em-
ployers located near the Company's Perryville plant,
plus evidence as to the entry level wage rates of such
employees and evidence purporting to show the effect of
the Union's increased initiation fee upon the recruitment
of new employees by the Company.
What is intended by the term "particular industry" as
used in Section 8(b)(5) is not clear. The General Counsel
contends that the manufacturers of polyvinyl chloride
compose a "particular industry." The Standard Industrial
Classification Manual (Office of Management and
Budget, 1972) lists polyvinyl chloride resins as one of ap-
proximately 70 products manufactured under industry
no. 2821, "Plastics Materials, Synthetic Resins, and Non-
vulcanizable Elastomers." This industry number, which
appears on paqe 114 of the Manual, falls under the major
group heading, "Chemicals and Allied Products," which
in turn is divided into several subgroups. Industry No.
2821, "Plastics Materials, Synthetic Resins, and Nonvul-
canizable Elastomers," is listed under the subgroup head-
ing, "Plastics Materials and Synthetic Resins, Synthetic
Rubber, Synthetic and Other Man-Made Fibers, Except
Glass." Thus, the manual does not list the manufacture
of polyvinyl chloride resins as an industry but only as
one of more than 70 products which together compose
an industry. It is my opinion that the manufacturers of
polyvinyl chloride resins alone do not constitute a "par-
ticular industry."
The evidence in the record regarding the initiation
fees charged by unions which represent employees who
work for employers that manufacture polyvinyl chloride
resins is as follows:
Union
Teamsters, Local
326
Rubber Workers,
Local 336
Paper Workers,
Local 1134
Glass & Ceramic
Workers, Local
482
Allied Industrial
Workers, Local
88
Chemical Workers,
Local 553
Distillery Workers,
Local 72
O)CAW, Locals
8890 and 8716
Chemical Workers,
Local 801
Textile Workers,
ACTWU
PVC Manufacturer Initiation Fee
Firestone
(Perryville, MD)
Firestone
(Pottstown, PA)
Stautfer (Delaware
City, DE)
Hooker Chemical
(Burlington. NJ)
Borden Chemical
(Illiopolis, IL)
Borden, Inc.
(Leominster,
MA)
B.F. Goodrich
(Louisville, KY)
Tenneco, Inc.
(Burlington, NJ)
Tenneco, Inc.
(Flemington, NJ)
Hooker Chemical
(Hicksville, NY)
$300.00
15.31 (79)
13.01 (78)
11.85 (77)
25.00
5.00
45.00
25.00
25.00
25.00
50.00
20.00
Low-
est3
Hour-
ly
Wage
$6.83
6.76
5.80
7.08
6.26
6.02
7.09
7.11
7.34
5.16
552
TEAMSTERS LOCAL UNION NO. 32
Union
OCAW, Local 8-
277
Rubber Workers,
Local 595
Machinists, Local
598
OCAW, Local
3727
Steelworkers,
Local 12900
Allied Oilworkers
Textile Workers,
Local 293
PVC Manufacturer Initriation Fee
Goodyear Tire &
Rubber (Niagara
Falls, NY)
General Tire &
Rubber Co.
(Ashtabula, OtH)
Union Carbide (S.
Charleston, WV)
Air Products
(Calvert City,
KY)
Ethyl Corp. (Balon
Route, LA)
Ethyl Corp. (Baton
Route, LA)
Panllasote
Company
(Passaic, NJ)
25.00
27.26
25.00
25.00
10.(X)
5.(X)
X ()
Low-
es 3
llour-
iy
Wage
U nion
6.52 Rubber Workers,
Local 797
7.10 Steelworkers,
L.ocal 15198
Plastics and
7.77 Molders Union,
Local 61
P'('C Manujcturer Initiation FIte
Pantasote
Company (Point
Pleasant. WV)
Conoco Chemicals
(Aberdeen. MS)
Great American
Chemical
(Fitchberg. MA)
2()(X)
I (.IX)
15.(X)
Low-
Hour-
Iv
Wage
6.64
5.32
3.50
6 40
Thus, the initiation fee charged by Local 326 is six
times more than the next highest fee listed above (that of
Chemical Workers Local 801) and is 10 times more than
the fee charged by 16 of the remaining 17 listed unions.
Further. of the 19 unions representing employees of man-
5 04 ufacturers of polyvinyl chloride resins, the starting
hourly wage for the employees at the Company's plant is
near the middle, with 7 other PVC manufacturers having
higher starting wages.
The evidence with respect to the initiation fees
charged by five unions which represent employees of
employers whose plants are geographically close to the
Company's Perryville facility is as follows:
nonion
Teamsters, Local 326
Paper Workers, Local 1134
Marine and Shipbuilding Workers,
Local 85
IBEW, Local 1800
Steelworkers, Local 13930
Auto Workers
Initiation
Fee 644', V14.ak·
Maonufacturer
Firestone (Perryvile, MD)
Stauffer Chemical (Delaware City, DE)
Wiley Manufacturing (Port Deposit, MD)
Perielli Cable (Elkton, MD)
Air Products (Elkton, MD)
Chrysler Corp. (Newark, DE)
25.(X) 5. ()
5000(X) (79) 5.54
While the hourly wage rates paid by such en
are from $1 to $1.80 less than the wage rates pa
level employees by the Company, the initiation
from $250 to $293 less than the initiation fee cha
Respondent.
Evidence also was introduced concerning the i
fees paid by various locals of the Teamsters Unio
are headquartered between Washington, D.C., a
York, New York, as follows:
TEAMSTER LOCAL
Local 107
Local 115
Local 158
Local 312
-100................................
Address
Philadelphia, PA
Philadelphia, PA
Philadelphia, PA
Chester, PA
nployers
lid entry
f- .
TEAMSTER LOCAL
....... i Local 331
arged by Local 355
Local 384
nitiation Local 513
)n which Local 570
nd New Local 623
Local 639
Local 676
Local 876
Initiation Local 992
Fee Local 557
$ 50 Local 27
100 Local 445
50-75 Local 805
I.ocal 813
Local 817
Address
Atlantic City, NJ
Baltimore, MD
Norristown, PA
Philadelphia, PA
Baltimore, MD
Philadelphia, PA
Washington, DC
Collingswood, NJ
Salisbury, MD
Hagerstown, MD
Baltimore. MD
New York, NY
Yonkers, NY
New York, NY
Nesw York. NY
Ncs York, NY
3 The Board holds that the lowest or starting wages are of primary
significance in evaluating the impact of an initiatiln ee, rather han
wages that may be earned later, since it is the new employee wuho has to
pay the initiation fee. See l'vision and Radio Broadcaiing Studio Em
ploee. Local 804 (Radio and lievsio.sn )vin Dion ofrangh Puhhealin
Inc. Radio Station WI11.. t./-T.I and IM and WEll.- I ). 15 Nt RBt
632. 636, fi 11 ( 1962), enfd 315 1 2d 39 (3d Cir 1'l3)
S 3(00.() 56 8 3
3()(X) (78)
700
I) 0)
2((X)
5.(5)
5 57
NA
Initiation
Fee
25-550
50- 150
25 1(X)
100
5-50
10 50
10) I (X)
5 50
15)- 3(X)
25- 25)
5 25O
25 -25)
300-400
125 4(0)
553
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1'TEAMSTIER LOCAL.
Local 1034
Address
New York, NY
Initiation
Fee
50-300
On behalf of Respondent evidence was introduced
showing that Division 842, Amalgamated Transit Union,
which represents drivers and mechanics within the
Greater Wilmington, Delaware, area, increased its initi-
ation fee in February 1979 from $125 to $300 and that
the employees represented by this union received starting
wages of between $5.25 and $6.03 per hour. Also, Re-
spondent adduced evidence that Local 199 of the Labor-
ers Union, which represents production and maintenance
employees as well as construction employees in the Wil-
mington, Delaware, area, charges an initiation fee of
$225.
I agree with the Charging Party and the General
Counsel that evidence regarding the initiation fees paid
by unions in completely unrelated industries such as the
transportation industry and the construction industry and
by unions which represent employees in distant labor
market areas have little probative value as to whether
the initiation fee imposed by the Union in this case is ex-
cessive.
The General Counsel also adduced evidence purport-
ing to show that the increase in the Union's initiation fee
made recruitment of new employees by the Company
more difficult. Thus, Russell Burroughs, who interviews
applicants for hourly rated positions with the Company,
testified that prior to April 1, 1977, when the Union's ini-
tiation fe was increased, on the average he interviewed
two applicants in order to fill each of at least 20 vacan-
cies, whereas after April 1, 1977, this ratio changed and
he found it necessary to interview approximately seven
applicants for every position that had to be filled. Since
April 1, 1977, the Company has hired 47 employees in
positions within the bargaining unit; 3 in 1977; 31 in
1978; and 13 in 1979. These employees were hired into
the service classification except for one who was hired as
a janitor.4
The collective-bargaining agreement betwee
326 and the Company established the followil
rates for the service employee and the janitor c
tions:
Efective
12/1/76
12/1/77
12/1/78
Service
$4.59-$4.79 $4
4.79-4.99
4.99-5.19
n Local
nq wage
zlassifica-
Janitor
.30-$4.50
4.50-4.70
4.70-4.90
The most recent collective-bargaining agreement, ef-
fective December 1, 1979, established a starting, or
"entry" rate for newly hired service employees at $6.83
per hour. During the term of the 1976-79 collective-bar-
gaining agreement, cost-of-living adjustments were made
to the basic wage rates set forth in the contract so that
The General Counsel called as a witness Walter Gilbert, who testi-
fied that in the last week of October or the first week of November 1977
he was offered a position by the Company but refused to accept the posi-
tion when he was informed that he would be required to pay a $300
union initiation fee within 30 days.
the wage rates listed above were increased by 88 cents
per hour effective December 1, 1978. With the cost-of-
living adjustment included, the wage rates of the service
and janitor employees effective December 1, 1978, were:
Service employees-$6.07 per hour; Janitor employees-
$5.78 per hour.
Under the collective-bargaining agreement, unit em-
ployees receive overtime at 1-1/2 times their regular rate
of pay for hours worked in excess of 40. The parties stip-
ulated that, during 2 representative weeks in 1979, serv-
ice employees averaged 43.7 and 42.8 hours of work, re-
spectively. Using this data as the basis for determining
the average weekly wages of the Company's employees
affected by the $300 initiation fee, the results are as fol-
lows:
Avg Hlrs/WA
43.7
42.8
% of
Wage/ A.vg Wkly Intia- Avg
Hr Wage tion Fee WAly
Wage
$6.07 $276.49
6.07 268.29
$300 109
300 112
When the initiation fees are considered as a percentage
of an employee's average weekly earnings, the disparity
between the $300 initiation fee charged by Local 326 and
the labor organizations listed above is as follows:
Avg
Employer Hrs/
Wk
Firestone
(Perryville)
Firestone
(Pottstown)
Borden
(Illiopolis)
43.7*
(3/79)
42.8
(6/79)
40
Borden
(Leominster)
Goodrich
(Louisville)
Tenneco
(Burlington)
Tenneco
(Flemington)
Hooker
(Hicksville)
Hooker
(Burlington)
Goodyear
(Niagara Falls)
General Tire
(Ashtabula)
Union Carbide
(Charleston)
Air
Products
(Kentucky)
Ethyl
(Baton Rouge)
Pantasote
(Passaic)
40
48
Avg Initi- % of
Wage/Hr Wkly ation avg
Wage Fee kly
wage
$6.07 $276.49 $300.00 109
6.762 (79)
5.582 (78)
6.26
40 5.53
48
40 7.09 (79)
40 7.11 (79)
6.22 (78)
42' 7.34 (79)
6.64 (78)
40 5.16
5.31
46* 6.62 (79)
6.13 (78)
40 6.52 (79)
40 7.10
40 7.77
40
48*
41
40
6.40
8.19
5.04
5.25
268.29
270.48
223.28
250.40
300.48
221.20
265.44
283.60
284.40
248.80
315.62
285.52
206.40
212.40
324.38
300.37
260.80
284.00
310.80
256.00
332.80
335.79
201.60
210.00
112
15.31 5.6
13.01 5.8
45.00 18
15
25.00 11
9
25.00 9
25.00 9
10
50.00 16
17.5
20.00 10
9
5.00 1.6
1.5
25.00 9.5
27.26 9.6
25.00 8
25.00 9.7
7.5
10.00 3
10.00 5
4.7
554
TEAMSTERS LOCAL UNION NO. 326
A
Employer H
Pantasote
(West
Virginia)
Conoco
(Aberdeen)
Great
American
(Fitchburg)
Stauffer
(Delaware)
Wiley
(Port Deposit)
Perielli
(Elkton)
Air
Products
(Elkton)BN
The allegation
spondent's $300 i
meaning of Sectic
issue in all prior
unlawful fee was d
some of those case
also excessive, the
the meaning of the
soned that an initia
sarilv is also exces
g AvYg mnii- of, tain closed-shop conditions by discouraging new employ-
Tr/ Wage/llr Wkly aotio avg ees from entering the industry." where the initiation fee
Vk Wage Fee Wklv was raised to inhibit the layoff of incumbent employees
Wage' by discouraging new employees from accepting positions
40 6.64 265.60 20.00 7.5 with the employer? and where the initiation fee was
raised to discourage nonunion employees from accepting
part-time positions with the employer thereby reserving
46* 5.32 255.36 410. ) 4 10 the part-time jobs for union members. 'o4.77 228.96 4.4
50' 5.32 287.28 3.4 The terms "excessive or discriminatory" as they
4.77 257.58 3.9 appear in Section 8(b)(5) are used in the disjunctive. As-
cribing, as I believe Congress intended, different mean-
45* 3.50 166.25 15.(X) 9 ings to the terms "excessive" and "discriminatory,"
48' 182.00 8.2 thereby broadening rather than narrowing the reach of
42* 6.61 (78) 284.23 25(X) 8.8 Section X(b)(5), I am of the opinion that unlike a "dis-
580 (78) 249.40 10.0
6.06 (77) 260.58 9.6 criminatory" initiation fee, which embraces elements of
5.32 (77) 228.76 1 10 motive and of disparate treatment, an "excessive" initi-
40 5.94 (79) 237.60 50.00 21 ation fee has a more absolute meaning which does not
5.54 (78) 221.60 30.00 13.5 depend upon its motive, its purpose, or its object. Thus,
40 5.15 206.00 7.00 3.4 the reasons for the adoption of an initiation fee while rel-
evant to the consideration of whether such fee is discrim-
40 5.57 (79) 222.80 10.00 4.5 inatory are not relevant to whether such fee is excessive.
5.09 (78) 203860 45.i The object of, or the purpose to be achieved by, an initi-
ation fee is necessarily outside the scope of the term "ex-
cessive." To use concepts such as purpose or object to
define excessive would involve the Board in the regula-
Conclusions tion of the normal activities of trade unions because then
in the instant complaint is that Re- the Board would be required to consider the needs of
nitiation fee is excessive within the unions for funds and how unions properly could raise
on 8(b)(5). With one xce ptionn the funds. The legislative history shows that Senatoron 8(b)(5). ith one exception' the
8(b)(5) cases was whether the alleged Murray, speaking for the minority, expressed the fear
Discriminatory. While the complaints in that Section 8(b)(5) would make the Board, "in effect,
es alleged that the initiation fees were the Budget Bureau for the trade-union movement" with
decisions did not attempt to ascertain "power to direct how, when, and for what, labor unions
term excessive because the Board rea- shall spend their funds .. ."" That this was not the
tion fee which is discriminatory neces- purpose of Section 8(b)(5) is reflected by the later re-
ssive. 6 In those cases the reasons for sponse of Senator Taft:
the imposition of the initiation fees were considered to be
significant because proof of discrimination usually de-
pends upon establishing unlawful motivation as well as
disparate treatment. 7 Thus, violations of Section 8(b)(5)
were found where the initiation fee was raised to main-
S Local Union No. 749. International Brotherhood of Bodermakers Iron
Ship Builders. Blacksmiths. Forgers & Helpers. AFL-CIO (California d
Blowpipe & Steel Co.. Inc.), 192 NLRB 502 (1971). Although in that case
it was found that a reinstatement fee was excessive within the meaning of
Sec. 8(bXS), the Decision offers no guides as to what principles or meas-
ures should be applied in any other situation to determine what is an ex-
cessive initiation fee. In the Boilermakers aseconsiderable emphasis was
given to the fact that the union's reinstatement fee was higher than its
initiation fee and was also considerably higher than the reinstatement fees
of other unions in the particular industry. Thus, there is merit to Re-
spondent's argument that the decision in Boilermakers is "based upon con-
siderations of discrimination, viz, discrimination as between new members
who paid the concededly reasonable initiation fee and those who let their
dues fall behind, and were thus saddled with he higher reinstatement fee.
Emphasis was placed upon the fact that the reinstatement fee constituted
a penalty 'used to limit an employee's right to his job " Furthermore. the
Boilermakers Decision indicates that an initiation fee which is 1-1/4 times
the employees' weekly pay is not unlawful
6 General Longshore Workers. International Longshoremen'r Association.
Local Union No. 1419. AFL-CIO (New Orleans Steamship .4Association), 186
NLRB 674, 678 (1970).
' Local 153, International Union. United Automobile. Aircraft and Agri-
cultural Implement Workers of America, 4 W-CIO (Bendix Aviation Cor-
porationl. 99 NLRB 1419, 1421 (195i).
Section 8(b)(5). Initiation fees: This section was
taken in part from the House bill and makes it an
unfair labor practice for a union to charge excessive
or discriminatory initiation fees with respect to em-
ployees covered by a compulsory union member-
ship agreement. It has been argued that the effect of
this section is to give the Board vast discretion in
regulating the dues and initiation fees of all labor
organizations and thereby putting the Government
in charge of the internal affairs of unions. The ex-
press language of this subsection shows how un-
founded such an argument is, for it is only in cases
in which the employees affected are covered by
union-shop or maintenance-of-membership agree-
ments that the Board has any jurisdiction. Even
then it is limited to initiation fees and does not
8 otion Picture Screen Cartoonist. Local 839 (Animated Film Produceri
Association. et al.) 121 NLRB 1196 (1958).
9 Local 611. International Brotherhood of Teamsters. Chauffeurs. Ware-
housemen and elpers of America (St. Louis Bakery Employers Labor
Council and White Baking Company of Missouri. Inc.). 125 NLRB 1392,
1398 1959)
ID American Federation of Television and Radio Artists .41-FL-CIO
(WBEN. Inc). 208 NLRH 377 (1974). and cases there cited
I I Leg Hisl 1570 (IMRDA. 1959)
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cover dues. It was the opinion of the conferees that
unless such a provision was inserted, the restrictions
on the union shop in Section 8(3) could be easily
circumvented. [Id. at 1623.]
The General Counsel argues that "[i]nitiation fees
were not intended by the Taft-Hartley Act to serve as a
vehicle for union fund raising." I find that, the legislative
history does not support such assertion. Furthermore, the
General Counsel does not state what are the legitimate
functions of initiation fees if they do not include fund
raising. While Section 8(b)(5) limits the amount that can
be charged as an initiation fee, the legislative history
does not suggest that the term "excessive" was intended
to limit the imposition of initiation fees by the purpose or
by the object for which they are adopted. Thus, whether
an initiation fee is excessive does not depend upon
whether an initiation fee was imposed to overcome an
operating deficit, to create a surplus for a strike fund, or
to accomplish some other nondiscriminatory objective
and, similarly, does not depend upon its prudence, that
is, on whether revenue could be raised more effectively
by increasing dues or whether it would be more advis-
able for the labor organization to effect economies in its
operations rather than to increase its initiation fee. Ac-
cordingly, I find that the evidence introduced in the
record in this case concerning Local 326's reasons and
justifications for increasing its initiation fee and respec-
tive counsel's arguments in regard thereto is irrelevant.
The meaning of "excessive" initiation fee is gleaned, in
part, from the purpose of Section 8(b)(5). As explained
by Senator Taft when he summarized the differences be-
tween the conference agreement and the earlier Senate
bill, Sections 8(a)(3) and 8(b)(2) protect an employee
from losing his job if a union expels him for some reason
other than nonpayment of dues and initiation fee uni-
formly required of all members; however, these sections
"[do] not sufficiently deal with the situation in which
unions wishing to continue a monopoly of certain trades
might pass a resolution requiring all new members to pay
exorbitant initiation fees and thereby frustrate the intent
of the Senate bill. The House bill limited initiation fees to
$25 per member except where a greater amount was per-
mitted by the Board. The Senate conferees were of the
opinion that it was not practical to set a definite amount
by law but were willing to accept the principle that
where employment was conditioned upon membership in
a labor organization exorbitant initiation fees should not
be charged." (Emphasis supplied.)' 2
The statute and its legislative history are clear that an
excessive initiation fee is not a fixed amount in all cases.
What may be a reasonable initiation fee for an employee
who earns $1,000 per week could be excessive for an em-
ployee who earns $150 per week. Also, the fact that
Congress did not establish a maximum ratio between ini-
tiation fees and periodic earnings suggests that the term
"excessive" should be flexibly applied and the Board has
held that Congress intended that the Board should exam-
12 II Leg. Hist., supra at 1540.
ine alleged violations of Section 8(b)(5) on a "case-to-
case" basis.
In determining whether an initiation fee is excessive
the statute enjoins the Board to consider "among other
relevant factors, the practices and customs of labor orga-
nizations in the particular industry, and the wages cur-
rently paid to the employees affected." Evidence intend-
ed to establish these factors as well as evidence concern-
ing the initiation fees of unions representing employees
of employers geographically close to the Company's Per-
ryville plant, along with evidence of the initiation fees of
other Teamsters locals, was introduced. As further proof
that the Union's initiation fee is excessive the General
Counsel offered testimonial evidence to establish that the
Union's increased initiation fee restrained applicants from
accepting jobs with the Company. Evidence of such
nature is relevant in this case and if competent and mate-
rial would be persuasive in showing that the initiation fee
is so high that it tends to discourage employment and
thereby creates the kind of situation which Section
8(b)(5) interdicts. However, the evidence adduced by the
General Counsel has almost no probative value. One wit-
ness called by the General Counsel, Walter Gilbert, testi-
fied that he refused an offered position with the Compa-
ny when he was informed that he would be required to
pay a $300 initiation fee within 30 days. Gilbert's recol-
lection was far from precise. He testified that he had in-
terviews with personnel officer Clothier in October or
November 1977; that he first applied for a position of
safety engineer but was told that he was under qualified
and then 3 weeks later applied for a position as an opera-
tor. Russell Burroughs, another witness for the General
Counsel, testified that Gilbert may have been confused
when Gilbert testified that he had been interviewed by
Clothier, that he had interviewed Gilbert with respect to
Gilbert's application for a service employee position in
April 1977 and then subsequently contacted Gilbert in
May 1978 regarding a security officer's position, which is
a nonunit job. Burroughs did not testify that when he in-
terviewed Gilbert he informed Gilbert that the latter
would be required to pay a $300 initiation fee as a condi-
tion of employment. I find Gilbert's testimony of no pro-
bative value, not only because I consider that Gilbert
was an unreliable witness, but also because the reaction
of a single applicant does not tend to prove that the
Union's initiation fee was so high that it discouraged ac-
ceptance of employment with the Company. An addi-
tional reason is because the unfair labor practice charge
herein was filed on February 16, 1978, and Gilbert's al-
leged refusal to accept a position with the Company oc-
curred in April 1977, more than 6 months earlier.' 4
:1 Local 153, Automobile Workers (Bendix Aviation Corporation), 99
NLRB at 1421
14 Had Gilbert refused employment with the Company because as a
condition of his employment he was required to pay an "excessive" iti-
ation fee, such circumstance would constitute a violation of Sec. 8(b)(5)
Consideration of such unfair labor practice is barred by Sec 10(b) of the
Act particularly as Gilbert's testimony does not "shed light on the true
character of matters occurring within the limitations period." Local
Lodge No. 1424, Inernational .4sociation of Machinists. AFL-CIO, et al v.
N. R. B., 362 US. 411, 416 (1960).
556
TEAMSTERS LOCAL UNION NO. 326
Russell Burroughs also testified that prior to April 1,
1977, approximately 2 applicants for employment were
interviewed to fill each of about 20 vacancies, whereas
after April 1, 1977, the ratio between interviews and jobs
filled changed to 7 to . This generalized, unsubstantiat-
ed, and uncorroborated testimony is valueless. The
Board has recently held that where records are available
and not introduced into evidence the testimonial sum-
mary of a corporate official should be disregarded.
Furthermore, not only did Burroughs fail to give the
basis for his figures and fail to describe the records he
consulted to refresh his recollection, but he also failed to
give any testimony to establish that the changed ratio
was in any way related to the Union's increased initiation
fee. Absent any explanation it would be as valid to infer
that if, in fact, the ratio had increased it was due to more
stringent hiring standards established by the Company as
it would be to infer that the ratio had increased because
of the Union's higher initiation fee.
While the Board has not in any case held that any
given relationship between an initiation fee and employ-
ees' wages was excessive (unless it found that the initi-
ation fee was discriminatory), in several cases involving
unlawful discriminatory initiation fees the Board's reme-
dial orders permitted the unions to continue to charge
initiation fees greater than 112 percent of the employees'
average weekly wages. Thus, in ANew York Local 11i
only so much of the initiation fee as exceeded $150 was
deemed unlawful although 90 percent of the employees
earned $130 per week. In Ne Orleans Steamship Associ-
ation1 7 where weekly earnings were about $170 the
Board accepted the concession of the General Counsel
that an ititiation fee of $500 is not excessive. In Boiler-
makers 8 an initiation fee of 1-1/4 times the employees'
weekly pay was considered not to be unlawful. In
Motion Picture Screen Cartoonists19 the Board found that
an initiation fee equal to 4 weeks' salary excessive and
discriminatory but ordered refunded only the excess of 2
weeks' salary. Based upon the foregoing, I conclude that
the Board does not view an initiation fee which is 112
percent of the employees' average wages as excessive.
The other factor mentioned in Section 8(b)(5) requires
consideration of "the practices and customs of labor or-
ganizations in the particular industry." According to the
evidence introduced in the record there are 18 other or-
ganized plants that manufacture polyvinyl chloride resins
and the initiation fees charged by these labor organiza-
tions vary between $5 and $50. While I sympathize with
the enormous problem involved in assembling the data,
nevertheless, I am of the opinion that the data furnished
by the General Counsel is too limited and that the manu-
"l Eastern Engineering & Elevator Co. Inc.. 247 Nl.RB No 4, sl op p
4 (1980)
'6 New York Local , National .4 sociation of Broadcast Emploves and
Technicians. AFL-CIO (American Broadcasting Compuny. A Divison of
American Broadcasting Companies, Inc.), 164 NL.RH 242 (1967).
17 General Longshore RWorkers, Longihoremrncn .A4sociation, Local Union
No. 1419 (NeV Orleans Steamship .4ssx-iiatuno, 186 NLRB 674
18 Local Union .Vo 749, Bodermakers Cal/brni & Blowpi & Steel
Co., Inc.). 192 NLRH at 506
19 .Motion Picture Screen Cartoonists, Local 41, Internationl a.lliance of
Theatrical Stage Emplhtvee. and foving Picture Operatorv of US
Canada. AF4L-CIO (.Vattonal Broadcasting Compan. Inc.). 225 NLRB 994
(1976)
facturers of polyvinyl chloride resins do not constitute a
"particular industry" within the meaning of Section
8(b)(5). Furthermore, assuming that they do, I am of the
opinion that the $250 difference between the Union's ini-
tiation fee and the next highest initiation fee is not exces-
sive.
The highest initiation fee charged by a union in a par-
ticular industry cannot automatically be unlawful as that
would lead to an absurd result where each of the differ-
ent initiation fees would sequentially become unlawful.
To compare the multiple between initiation fees can be
mathematically deceptive. As an example, although the
difference between $5 and $30 represents a multiple of 6
it nevertheless represents only a small arithmetic differ-
ence. The object of the statute is to outlaw initiation fees
which are so exorbitant that they discourage employ-
ment. The most logical factor bearing upon this object is
the relationship between the initiation fee and the
wages-certainly not the initiation fee in other plants. Of
what significance then is the factor of the practices and
customs of labor organizations in the particular industry?
I believe this factor comes into play less to assist in iden-
tifying unlawfully high initiation fees than to justify initi-
ation fees that may be high in relation to wages, as, for
instance, in the construction trades. 20
Whether or not an initiation fee is unlawfully excessive
is determined on a case-to-case basis. This does not mean
that the decision in each case is arbitrary and without
any guides. I do not believe that the Board intends to de-
velop a specific ratio between an initiation fee and an-
other factor such as wages to measure whether a particu-
lar initiation fee is unlawfully excessive. However, I be-
lieve that the Board in its Decisions is defining the gen-
eral parameters within which to circumscribe the term
"excessive." My review of the Board cases leads me to
conclude that an initiation fee which is less than two
times the weekly earnings of the employees affected is
not, absent unusual factors, excessive. Accordinqly, I
find that the Union's initiation fee of $300, which has
been applied to the employees of the Company since
April 1, 1977, is not excessive within the meaning of Sec-
tion 8(b)(5) of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
Upon the basis of the foregoing findings of fact, con-
clusion of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
20 The same consideration pertains to the relationship between the
Union's initiation fee and the initiation fees of other labor organizations in
the geographic area of the Company's Perry Ville plant
557
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 2
The complaint is dismissed in its entirety.
2i In the event no exceptions are filed as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.