Trico Workers Union

National Labor Relations Board - Board Decisions

Nov 20, 1979

246 N.L.R.B. 514 (N.L.R.B. 1979)

DECISIONS OF NATIONAl LABOR RELATIONS BOARD
Trico Workers Union Independent (Trico Products
Corporation) and International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, UAW and Willie J. Lee and
Gerda A. Kristensen. Cases 3-CB 3073, 3CB
3069 -, and 3 CB 3069-2
November 20, 1979
SUPPLEMENTAL I)DECISION AND ORDER
BY CIIAIRMAN FANNING ANI) MIMHBIRS MURPIIY
ANI) TRUESDAI.E
On July 31, 1979, Administrative Law Judge Wal-
ter H. Maloney Jr., issued the attached Supplemental
Decision in this proceeding.' Thereafter, Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, 2 and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
1. In his Supplemental Decision, the Administra-
tive Law Judge found that certain statements and
conduct of Respondent violated Section 8(b)(1)(A).
We agree with those findings. The Administrative
Law Judge also found that certain other alleged state-
ments and actions of Respondent did not violate Sec-
tion 8(b)(l)(A). We agree with his findings in this lat-
ter regard with one exception. Thus, contrary to the
Administrative Law Judge, we find that Union Stew-
ard Gilewski acted in violation of Section 8(b)(1)(A)
when she informed employee Kristensen that she
(Gilewski) could not represent certain people, includ-
ing Kristensen, because their names were on a list of
those who had not paid their dues. The Administra-
tive Law Judge found no violation because Gilewski
assured Kristensen that she would not comply with
Respondent's policy and, instead, would continue to
'The Supplemental Decision of Administrative Law Judge Maloney was
issued pursuant to our Decision and Order dated February 16. 1979 (240
NLRB 810), where we remanded the instant matter to the Administrative
Law Judge for a determination on the merits. Administrative Law Judge
Maloney. by Decision dated November 9. 1978. had recommended dismissal
of the complaint on the ground that the issues presented were moot.
2 The General Counsel has expected to certain 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 incorrect. 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.
represent all employees, including those on the afore-
mentioned list. Under these circumstances, the Ad-
ministrative Law Judge was of the view that Gilew-
ski's remarks amounted to a reassurance of continued
representation, rather than a threat to discontinue
representation.
We find, however, that Gilewski's statement vio-
lated Section 8(b)(1)(A). Unlike the Administrative
Law Judge, we do not believe that Gilewski's "reas-
surance" vitiated the clear threat embodied in the
statement that it was the Union's policy not to repre-
sent delinquent dues payers. Gilewski's statement
that she would not adhere to the policy is of minimal
significance since her role as union steward in pro-
cessing a grievance is confined to the initial stages. If
a grievance progressed beyond the initial stage, there
would be no reason for Kristensen to believe that the
union policy as stated by Gilewski would not take
effect, thereby preventing the grievance from being
processed.
2. We also disagree with the Administrative Law
Judge's finding that Respondent violated Section
8(b)(5) by establishing a reinstatement fee of $75 for
members who had been expelled from the Union for
failure to pay dues. For the reasons set forth below,
we find, contrary to the Administrative Law Judge,
that the $75 fee was neither discriminatory nor exces-
sive within the meaning of Section 8(b)(5).
Respondent and the employer, Trico Products Cor-
poration, had successive collective-bargaining agree-
ments since 1942. However, in 1977, International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW)3 sought
to displace Respondent as the collective-bargaining
representative. On May 9, 1977, an election was con-
ducted pursuant to a Stipulation for Certification
Upon Consent Election, in which a majority of the
valid ballots were cast in favor of the UAW. Objec-
tions to the election were timely filed. Ultimately, on
September 26, 1978, the Board overruled the objec-
tions and certified the UAW. Trico Products Corp.,
238 NLRB 380 (1978).
During the intervening period between the May
1977 election and the September 1978 certification of
the UAW, the collective-bargaining agreement be-
tween Respondent and the employer expired. How-
ever, under the circumstances, Respondent thereafter
properly continued to function as, and the employer
properly continued to recognize Respondent as, the
defacto bargaining agent, pending finalization by the
Board of the outcome of the aforementioned election.
Trico Products Corp., 238 NLRB 1306 (1978).
The collective-bargaining agreement in force be-
tween Respondent and the employer at all times ma-
terial herein contained a valid union-security clause
I Hereinafter called the UAW
246 NLRB No. 83
514
TRICO WORKERS tUNION
requiring union membership as a condition4 of em-
ployment. Trico Products Corp., 238 NLRB 1306
(1978). The collective-bargaining agreement also pro-
vided for a dues checkoff. Article 111, section 3, of
Respondent's constitution and bylaws provides that a
member loses goods standing in the Union for non-
payment of dues and that:
Members who lose good standing by reason of
nonpayment of dues, assessments or fines shall
stand automatically expelled and void of mem-
bership rights, and shall not be reinstated in
good standing except on such terms as the Union
shall decide.
Prior to the promulgation of the $75 fee here in ques-
tion, Respondent had no set fee for reinstatement of
members expelled for failure to pay dues. Respondent
did require a $5 reinstatement fee of members who
left the Union voluntarily and subsequently returned.
Respondent also required an initiation fee of $10. as
well as dues in the amount of $1 per week.
Several months after the election, commencing in
September 1977, several members of Respondent re-
voked their dues-checkoff authorizations and ceased
paying dues to Respondent. On October 5, 1977, the
membership of Respondent voted to establish a rein-
statement fee of $75 to he paid by members who
wished reinstatement after having been expelled from
union membership as a result of becoming delinquent
in dues payments. The reinstatement fee was to be-
come effective on November 1, 1977.
On or about October 13, 1977, Respondent's pres-
ident, Norman J. Kapp, sent a letter to each of the
members who had ceased payment of dues. Each let-
ter informed the particular member of the amount of
his or her delinquency. The letter went on to state
that nonpayment of dues resulted in automatic expul-
sion from the Union and further stated, "[Y]ou are
required as a condition of continued employment, to
become and remain a member of the TWUI to the
extent of paying Union dues." The letter also notified
the delinquent members of the newly enacted $75 re-
instatement fee for members expelled for nonpay-
ment of dues, noting that the provision was to be-
come effective November 1, 1977. Finally, each letter
stated that the member had 8 days, until October 21,
1977, to pay the dues and thereby avoid a demand by
the Union of the employer that the member/
employee be terminated pursuant to the union-secu-
rity clause. The letter did not demand payment of the
$75 reinstatement fee.
Based on the foregoing, the Administrative Law
We note an apparently inadvertent typographical error in the Adminis-
trative Law Judge's Decision relating to the union-security clause. In the
second sentence of par. 9. sec. I,C. the word "thirteenth" should be "thirti-
eth." This error in no way affects the decision of this case
Judge found that the $75 reinstatement fee promul-
gated by Respondent was both discriminatory and
excessive within the meaning of Section 8(b)(5). The
Administrative Law Judge found the $75 fee discrimi-
natory based primarily upon the timing of its promul-
gation and the disparity between this and the other
applicable initiation and reinstatement fees. He also
found that the fee was intended to deter defections to
the UAW and to punish those who had ceased paying
dues and wished to regain their good standing in Re-
spondent. In finding the $75 fee excessive, the Admin-
istrative Law Judge relied exclusively upon the dis-
parity in amount between the initiation fee and
reinstatement fee lor members who voluntarily left
the Union as opposed to the $75 fee for those who
were automatically expelled for dues delinquencies.
Contrary to the Administrative Law Judge, we find
the $75 fee neither discriminatory nor excessive
within the meaning of Section 8(b)(5). In so holding,
we begin with the established principle that a union
may establish certain categories which require differ-
ent fees so long as the categorization is reasonable
and not discriminatorily motivated. Metal Workers'
A lliance, Incorporated (TR W Metals Division, TR W,
Inc.), 172 NLRB 815, 816 (1968); Food Machinery
and Chemical Corporation, 99 NLRB 1430. 1431
(1952). A classification providing one reinstatement
fee for members who had left the union voluntarily
and another, higher, reinstatement fee for members
expelled because of dues delinquencies is such a rea-
sonable classification. Cf. Local 173, International
Molders and Foundry Workers Union of North Amer-
ica, AFL- CIO (Hubley Manufacturing Company), 121
NLRB 170 (1958): Food Machinery, supra. Thus, the
Administrative Law Judge's reliance upon the dispar-
ity in reinstatement fees for those delinquent in dues
as opposed to those who had left the Union voluntar-
ily is misplaced.
The Administrative Law Judge also erred in find-
ing that promulgation of the $75 fee was intended to
punish those members who had left the Union to join
the UAW and subsequently wished to return to Re-
spondent. Although the timing of Respondent's ac-
tion gives one pause, a close analysis reveals no dis-
criminatory intent. In this regard, Respondent's
president testified, without contradiction, that the is-
sue of reinstatement for members who were expelled
for dues delinquencies had arisen in the past. As
noted above, Respondent's constitution had provided
that the terms for reinstatement of such individuals
were to be established by the Union. Since no uni-
form reinstatement terms were established, each inci-
dent was handled on a case-by-case basis. Respon-
dent's president further testified that the uniform
reinstatement fee was established not for the purpose
of discrimination, but to avoid the disparate treat-
515
DECISIONS OF NATIONAL LABOR RELAI'IONS BOARD
ment inherent in past practices, and the record con-
tains no evidence warranting a different conclusion.
In addition, any claim of retaliation or punishment
is further belied by the October 13, 1977, letter sent
by Respondent to the delinquent members. In that
letter, Respondent informed its members of the new
$75 fee. Yet, it is essential to note that the fee was
prospective in operation since it was not to take effect
until November 1, 1977. Thus, each delinquent mem-
ber was afforded a reasonable time to regain good
standing in the Union without payment of the newly
promulgated reinstatement fee. In such circum-
stances, it cannot be said that the new fee was in-
tended to punish those members who stood expelled
for nonpayment of dues.
Finally, the Administrative Law Judge was incor-
rect in finding that the $75 fee was excessive within
the meaning of Section 8(b)(5). In so finding, the Ad-
ministrative Law Judge correctly stated that, in deter-
mining whether a fee is excessive, Section 8(b)(5) re-
quires that the Board's consideration be based upon,
inter alia, the practices and customs of other unions in
the industry and the current wages of the affected
employees. He also correctly noted that the General
Counsel submitted no evidence pertinent to such rel-
evant factors. Thus, as to this portion of the com-
plaint, there is a total failure of proof since the Gen-
eral Counsel failed to establish even a primafaric case
of an excessive fee. In addition, our review of the
record as a wholes reveals no basis for the Adminis-
trative Law Judge's finding of excessiveness.
Having found that the promulgation of the $75 re-
instatement fee was neither discriminatory nor exces-
sive, we will dismiss that portion of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Trico
Workers Union Independent, Buffalo, New York, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening members of the Trico Products
Corporation bargaining unit that it will not process
their grievance during the period of time that it is the
exclusive bargaining representative of said employees,
and failing and refusing to process grievances of said
persons during the period of time that it is the exclu-
sive bargaining representative of said employees, be-
cause said employees have discontinued their check-
off authorizations or have otherwise failed or refused
to pay dues.
(b) In any like or related manner restraining or co-
5Respondent did submit some evidence of the industry practice and em-
ployees' wages which tends to support a finding that the fee was not exces-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action deemed
necessary to effectuate the policies of the Act:
(a) Post at its office in Buffalo, New York, copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by Re-
spondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by if for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Forward to Trico Products Corporation signed
copies of the notice furnished to Respondent by the
Regional Director for Region 3 for posting at the
Trico Products Corporation plant at places where
such notices to employees are customarily posted, if
said employer is willing to post such notices.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps it has taken to comply herewith.
IT Is FURTHER ORDERE) that, insofar as it alleges
matters which have not been found herein to be viola-
tions of the Act, the complaint be, and it hereby is,
dismissed.
sive
6 In the event that this Order is enforced by a Judgment of the 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
APPENDIX
Non'ICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence and cross-examine witnesses,
The National Labor Relations Board has found that
we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice. We
intend to abide by the following:
WE WILL NOT threaten employees of the Trico
Products Corporation for whom we are acting as
exclusive bargaining representative that we will
not process their grievances, and WE WILL NOT
refuse to process the grievances of employees of
the Trico Products Corporation for whom we are
acting as exclusive bargaining representative, be-
cause they have discontinued their checkoff au-
516
TRICO WORKERS UNION
thorizations or have failed or refused to pay
union dues.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
National Labor Relations Act.
TRICO WORKERS UNION INDEPENDENT
SUPPLEMENTAL DECISION
I. FINDINGS OF FACT
A. Statement of the Case
WALTER H. MALONEY, JR., Administrative Law Judge:
On November 9, 1978, 1 issued a Decision in which I rec-
ommended the dismissal of an 8(b)(1)(A) and 8(b)(5) com-
plaint which was issued by the Acting Regional Director
for Region 3 against Respondent, Trico Workers Union In-
dependent, on the basis that the matter was moot. In a
Decision and Order, dated February 16, 1979, the Board
remanded the case to me. 240 NLRB 810. In that Decision,
the Board felt that the matters litigated at the hearing were
still live issues, despite the fact that Respondent had been
ousted as bargaining agent from the only unit it repre-
sented, so the Board remanded the case to me to prepare a
decision on the merits. In so doing, I hereby reaffirm all
previous findings of fact and conclusions of law which are
not inconsistent with the Board's Decision and Order.
B. The Unfair Labor Practices Alleged
1. Background
For more than 35 years, Respondent was the collective-
bargaining agent of about 2,500 employees of the Trico
Products Corporation, a company which manufactures
windshield wipers and related accessories at three produc-
tion plants located in various sections of Buffalo, New
York. At a representation hearing conducted on May 19,
1977, the UAW appeared to have displaced Respondent as
the collective-bargaining agent in this unit. The election
was decided by a narrow margin. About 16 months later,
the Board certified the UAW after dismissing objections to
the conduct of the election which had been filed. The events
which form the basis of this case took place in the 6-month
period following the May 1977 election, when the outcome
of the balloting was still in doubt. By that time, Respon-
dent's most recent contract with the Trico Products Corpo-
ration had expired but it was continuing to function as a de
facto bargaining agent and was recognized as such by the
employer. Respondent's right and responsibility to repre-
sent unit employees during the period when its status was in
limbo was ultimately established by the Board in Trico
Products Corporation, 238 NLRB 1306. That Decision was
issued by the Board on September 29, 1978, about a year
after the events on this case took place.
2. The 8(b)(1)(A) violations alleged in the complaint
Gerda Kristensen is a filler assembler who works on the
fourth floor of plant 2, which is located at Main and Rod-
ney in Buffalo. At the May 1977 election she was a UAW
supporter. In September 1977. she discontinued the check-
off authorization she had previously executed for the bene-
fit of the Trico Workers. In mid-September she observed a
notice posted at or near the timeclock by Jean Gilewski,
who was continuing to act as Respondent's shop steward in
the area where Kristensen worked. The notice stated that a
representative of the Trico Workers was coming around to
look into the question of plant safety. It was signed by Nor-
man Kapp, the president of the Trico Workers. Kristensen
asked Gilewski why she was coming around to look into
safety matters. Gilewski then told Kristensen that she could
not represent certain people because their names were on a
list of those who did not pay dues. Kristensen asked her if
she was going to go by that list, and Gilewski replied, "No.
I represent everyone. You voted me in, and that is it." Kris-
tensen testified that, if the employees in the area had any
complaints, they continued to call Gilewski and she has
made herself available for this purpose.
In the middle of September 1977, employee Edith
Gayles, who works on the third floor of plant 2, received a
written warning from the Company for repeated absentee-
ism. She complained to her steward, Angelo Lima, that the
Company had wrongfully charged her with a day of ab-
sence when it should have counted as a storm day. i.e., an
excused absence due to weather conditions. Lima took her
warning slip and said he would check into the matter. He
did so. A few days later he spoke with Gayles again and
told her on that occasion that he thought that the warning
was proper. He also told her that there was a union meeting
the previous evening, that her name was on a list of persons
who had not paid their dues, and that, from that point on,
he could no longer represent her. Gayles had in fact asked
the Company to discontinue checking off Trico Workers
Union's dues.
On a second occasion a few days later, Gayles called
Lima over to a machine where she and a fellow employee,
identified in the record only as Margaret, were having a
problem with the operation of their machines. They had
called a setup man but to no avail. As Lima told Gayles
that he could no longer represent her, Gayles suggested that
he represent Margaret since Margaret had continued to pay
her dues. The three of them went to the office to speak with
the foreman, Bill Mullenbeck, and apparently the problem
was adjusted satisfactorily.
Willie Lee is a trucker who works on the first floor of
plant 1, located at Main and Washington Streets. He had
revoked his checkoff of Trico Worker dues sometime in
September or October 1977. Shortly thereafter, his shop
steward, Joan Williams, told Lee that she had a conversa-
tion with Norman Kapp, the president of Respondent, dur-
ing which Kapp reportedly had said that, since Lee was not
paying any dues, she could no longer represent him. Kapp
denies making this statement to Williams or to any union
steward or official. However. Williams did not testify so her
representation to Lee stands uncontradicted in the record,
regardless of what Kapp actually told her.
Wilmalene Coleman is a machine operator who works in
plant 2. She discontinued paying dues to the Trico Workers
at or about the same time as other employees involved in
this case. From July to October 1977, she was absent from
work because of an illness which was not job related. She
517
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also had two other extended absences on her record, both of
which were apparently due to illness. When she wished to
return to work, the Company would not permit her to re-
sume her duties until she signed a statement saying, in ef-
fect, that if she got sick again, she could be fired. She re-
fused to sign the statement. She went to the plant and asked
a gate guard for permission to see a Trico Workers Union
official. (At that time the Trico Workers maintained an of-
fice in the plant.) I credit the testimony of Walter Solly, the
secretary of Respondent who was staffing the office at the
time, that he came to the guard area where Coleman was
waiting and escorted her to the union office where they
discussed her grievance. She showed him a written state-
ment presented to her by the Company, acknowledging her
liability for discharge in the event of future illnesses, and
told him that Bull in the labor relations office insisted that
she sign it before she could come back to work. Solly told
her that many other employees who had experienced long
illnesses had been required to sign similar statements and
that the statement was not as bad as it sounded. He assured
her that, should she have another prolonged illness, her at-
tendance record would still be reviewed by the Company to
determine whether she would be discharged and that the
statement was merely a warning. I credit his statement that,
contrary to the testimony of Coleman, he did not deny her
the right to file a grievance and did not tell her that she
could not file because of her lack of membership or discon-
tinuance of dues payments to the Trico Workers Union.
Coleman was unhappy about the advice she received from
Solly, so she wrote a direct letter to the company manage-
ment protesting the requirement that she sign a form ac-
knowledging her liability for future discharge in the event
of another extended absence. She received a letter, dated
October 17, 1977, from M. G. Bull, who is apparently in the
labor relations office, stating that her several extended ab-
sences made her unsuitable for continued employment, but
that the Company would permit her to return to work if she
signed the company form in question. She did so and re-
turned to work.
Respondent maintains at its office and throughout the
plant with its stewards regular grievance forms for the pur-
pose of initiating formal grievances which arise under the
terms of its collective-bargaining agreement with the Com-
pany. During her interview with Solly, Coleman did not
sign such a form or ask for one, nor did she seek to obtain
such a form or otherwise initiate a grievance by contacting
any of the Respondent's stewards who are located through-
out the three plants. Coleman had 30 days from the date on
which the grievance arose to initiate a formal complaint
under the grievance procedure, but none was filed.
Edna Barrett is a packer on the assembly line in plant 2.
She was a UAW supporter who asked the Company to
discontinue her checkoff authorization to the Trico Work-
ers. Early in October 1977, Kapp, Respondent's president,
came to the plant with John Leising, the Union's job eval-
uator and chairman of its time study committee, to discuss
with a foreman the posting of a sleeve job. I credit Kapp's
testimony that, as he was passing the area where Barrett
was working on a horizontal packing machine, Barrett
shouted at him and asked him where he was going. He
replied that he was going to check on a job. Barrett then
demanded loudly that he come over to their machine imme-
diately and do something about her problem. A number of
people gathered about her as she was shouting to Kapp that
he should not be walking away from her because he should
be taking care of her problems. Kapp replied that he did
not have to take that kind of abuse from Barrett and noted
that she was not even paying dues. I credit Kapp's state-
ment that Barrett never mentioned to Kapp the specific
problem which concerned her and was speaking in an ex-
cited manner. Kapp and Leising proceeded to complete the
errand which initially brought them to the plant.
3. The 8(b)(5) violation alleged
At a general membership meeting of the Trico Workers,
which took place on September 7, 1977, a discussion took
place concerning the processing of grievances on behalf of
individuals who had ceased paying dues. Thereafter, Kapp
informed the senior representatives (stewards) to check with
the office before doing anything in this regard because he
was going to seek legal advice. He suggested there might be
a fee charged to those who did not pay dues. A list had
been prepared and was available naming those who had
failed to pay their dues.
At a Trico Workers' meeting which was held on October
5, the membership voted a new bylaw, the net effect of
which was to raise a reinstatement fee from $5 to $75 for
members who are expelled for failing to pay dues. The ini-
tiation fee remained at $5, as did the $5 reinstatement fee
for those who wished to rejoin after being off the job be-
cause of resignation from the Company or leave of absence.
Kapp explained that the reason for raising the reinstate-
ment fee was the Union's need for revenue.
C. Analvsis and Conclusions
Under Board law, a union may not refuse to process an
employee's grievance because he is not a union member,
Port Drum Company, 170 NLRB 555 (1968), or because an
individual has become involved in an intraunion or inter-
union political dispute. Local 485, International Union of
Electrical, Radio & Machine Workers, AFL--CIO (Automo-
tive Plating Corp.), 170 NLRB 1234 (1968). In the conversa-
tion between Kristensen and her steward, Gilewski, Kris-
tensen had no live grievance to present. Their conversation
took place at a chance encounter at the plant. Thus, the
statements by Gilewski were not directed toward any con-
crete problem being presented to her in her capacity as
steward. Her remarks were, at most, ambivalent. While
stating to Kristensen that her name was on a list of delin-
quent dues payers and she was not supposed to represent
such people, Gilewski also assured Kristensen that she
would continue to represent her, even though she had re-
voked her checkoff authorization. Gilewski has continued
to honor her word. Such remarks, made in this context, do
not constitute a threat to refrain from representing her. In-
deed, they amount to a reassurance to the contrary-that
she would continue to represent her-so I would dismiss so
much of the complaint that is directed toward this incident.
With respect to the refusal of Steward Angelo Lima to
file a grievance for Edith Bayles relating to her written
warnings for absenteeism, it is well to remember the words
of the Fifth Circuit in Local Union No. 12, United Rubber,
518
TRICO WORKERS UNION
Cork, Linoleum & Plastic Workers of Amlerica, AFI. (I10,
[Good Year Tire & Ruhher Co., etc.] . N.L. R. B. 368 F.2d
12 at 17 (1966):
[lit must be reiterated that every union decision which
may in some way result in overriding the wishes or
disappointing the expectations of an individual em-
ployee, or even an appreciable number of employees.
does not in and of itself constitute a breach of the fidu-
ciary duty of fair representation. ... Thus, where the
union, after a good faith investigation of the merits of a
grievance, concludes that the claim is insubstantial and
refuses to encumber further its grievance channels by
continuing to process the unmeritorious claim, its duty
of fair representation may be well satisfied.
Retail Clerks Union, Local No, 1357 (Lit Brothers), 192
NLRB 1171 (1971): Wenctel, Inc., 198 NLRB 828 (1972).
Bayles had been given several previous warnings for absen-
teeism, and there is a failure on the part of the General
Counsel to show that her grievance had colorable merit.
Her steward took her warning slip to management and,
after making an investigation, returned it with the comment
that he saw nothing wrong with the warnings. There is no
evidence in the record to contradict his basic conclusion or
to establish the validity of Gayles' complaint. Accordingly,
I would dismiss that portion of the complaint which is di-
rected at this incident.
At the same time, Lima told Gayles that, from that point
forward, he would not represent her because he had learned
at a meeting the previous evening that her name was on a
list of those who had not paid their dues. This statement is
uncontradicted in the record and, in and of itself, violates
Section 8(b)(l)(A) of the Act. International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers &
Helpers, AFL CIO, Local 132 (Kelso Marine, Inc.), 220
NLRB 119 (1975). When, on a later occasion, Lima refused
to take up Gayles' grievance relating to defective parts on
her machine while taking a similar complaint to manage-
ment on behalf of a dues-paying employee. he violated Re-
spondent's duty of fair representation which is owed to all
bargaining unit members by virtue of Section 8(b)(I)(A) of
the Act.
In a conversation with employee Lee, Steward Williams
made a similar statement to the one attributed to Lima. The
statement in question was couched in terms of a statement
to Williams by Kapp that Kapp would no longer process
Lee's grievances because of nonpayment of dues rather
than what Williams might or might not do. Assuming, with-
out finding, that Kapp never made the statement to Wil-
liams which is attributed to him, there is no dispute in the
record that Williams reported such a statement to Lee. The
coercive effect of that statement, whether or not it accu-
rately reflects Kapp's remarks, violates Section 8(b)(I)(A)
of the Act.
I have discredited the testimony of Wilmalene Coleman
that any agents of Respondent threatened to refuse to pro-
cess a grievance on her behalf because she was no longer a
dues-paying member, so I will recommend that so much of
the complaint which is directed toward that allegation be
dismissed. Under the cases set forth above, Respondent is
under no obligation to initiate a grievance for a unit em-
ployee just because the employee wants to file a grievance.
In this case, Coleman took the bull by the horns and wrote
her own grievance to management. It was denied, so she
complied with the company directive, signed the form pre-
sented to her, and returned to work. Solly told her that the
company directive was not an onerous requirement and
that many other employees had signed similar forms and
had returned to work without jeopardizing their job secu-
rity if they curbed their absenteeism. In effect, he was tell-
ing her that she was making a mountain out of a molehill. It
appears that union officials employed at the plant had been
required to sign such forms. I believe that Respondent's
reluctance to press a formal grievance on Coleman's behalf
was based on the bona fide belief that she had no grievable
complaint under the contract and that this belief was
founded on its experience with many other employees,
many of whom were dues-paying members, who found
themselves in similar circumstances. In one or two such
cases, where actual discharges occurred, grievances had
been filed and lost. In most cases, employees were able to
retain their jobs after signing the disputed form. Accord-
ingly, I would dismiss so much of the complaint as is di-
rected toward the refusal of Respondent to process a griev-
ance on behalf of Coleman.
With respect to the Barrett-Kapp confrontation, this inci-
dent amounted to a piece of bullyragging of a union official
by a supporter of a rival labor organization during a chance
encounter at the plant. There was in existence a structured
contractual grievance procedure which did not include di-
rect complaints to the union president as its first step. If
Barrett had a specific, definable grievance, there was noth-
ing to prevent her from presenting it to her steward and
having it processed in due course. She chose to interrupt the
schedule of the union president, who had come to the plant
on a definite errand which had for its purpose the represen-
tation of members of the bargaining unit. He was under no
duty on that occasion to drop everything and listen to Bar-
rett. Barrett failed in the course of her harangue to articu-
late a definable grievance, and she appeared more inter-
ested in a public confrontation designed to embarrass a
political adversary than in redressing some wrong which the
Company had done to her.
Kapp's rejoinder-that he did not have to take such
abuse from a nondues paying member-was merely an as-
sertion of his rights. He had no obligation to take such
abuse from anyone. His statement was not a threat not to
process a grievance. Indeed, it was not a threat to do any-
thing. Accordingly, I would dismiss so much of the com-
plaint which is addressed to this incident.
At a time when union officials and Trico Worker parti-
sans were concerned about the actions of some UAW sup-
porters in discontinuing their checkoff authorization, Re-
spondent voted to increase its reinstatement fee to 15 times
what it had been. However, those who sought reinsttement
because they had not been working at the plant and wished
to rejoin upon returning to the employment of the Trico
Products Corporation were still required to pay only the old
fee of $5. Despite an asserted need for revenue, no increase
was voted either in dues, the amount of the initiation fee for
new members, or the reinstatment fee for any old members
other then those who had been expelled for nonpayment of
dues. It is obvious that the change that was voted was de-
signed to deter UAW supporters from withdrawing their
519
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checkoff authorizations and to punish them in the event
they wished to rejoin when the Union tried to invoke the
union-security clause of the existing contract, an action
which the Board found in another case Respondent was
legally entitled to take. As the increase in the reinstatement
fee was discriminatory both in intendment and necessary
effect, it violated Section 8(b)(5) and 8(b)(1)(A) of the Act.
The General Counsel also urges that, quite apart from
being discriminatory, the increase in the reinstatement fee
was also excessive and therefore a violation of Section
8(b)(5) of the Act for that reason alone. As noted above, the
unit in question was covered by a valid union-security
clause which required employees to become members of
Respondent Union after the 13th day of their employment.
The precedents in this area are sketchy and provide little
guidance in determining how much in the way of dues and
fees may or may not be excessive. The statute says that the
practices and customs of labor organizations in the particu-
lar industry and the wages currently paid the employees in
question are relevant to the determination. The General
Counsel placed no such evidence on the record, although
the burden of establishing these facts falls upon the propo-
nent of the complaint. Respondent placed into evidence a
number of contracts and other data showing that, in other
industries and in other production plants in Western New
York State, dues and/or fees are higher than under the
revised Trico Workers schedule. However, there are so
many variables in comparing the situation at hand with
charges levied by unions in those plants that the informa-
tion is of little probative value. What stands out in this case
is that the revised reinstatement fee applies only to one
category of reinstatees and that it is 15 times the fee which
Respondent would charge to a new member. It is difficult to
perceive any logical explanation as to why a person previ-
ously unassociated with the Trico Products Corporation
and this Respondent should be admitted to membership for
a relatively nominal amount of money while a former mem-
ber, who has already paid an initiation fee as the price of
his original admission to membership, should be charged
many times that amount to reclaim the rights and benefits
he formerly enjoyed. No such explanation has been offered
herein. It is on the basis of this disparity, rather than on the
basis of any comparison with dues and fees charged else-
where, that I conclude that the increase in reinstatement fee
to $75 for a certain class of reinstatees is excessive within
the meaning of Section 8(b)(5) of the Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCUI.SIONS OF LAW
I. Trico Products Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Respondent Trico Workers Union Independent is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By threatening employees in a bargaining unit for
which it was the exclusive collective-bargaining representa-
tive that it would not process their grievances because they
had discontinued their checkoff authorizations; by failing to
process grievances for employees because they had discon-
tinued their checkoff authorizations; and by raising its rein-
statement fee in order to discourage employees from dis-
continuing their checkoff authorizations, Respondent
herein violated Section 8(b)(1)(A) of the Act.
4. By raising its reinstatement fee from $5 to $75 while
maintaining its initiation fee at $5 for employees who are
covered by a union-security agreement under Section
8(a)(3) of the Act, Respondent herein charged an excessive
and discriminatory fee within the meaning of Section
8(b)(5) of the Act.
5. The unfair labor practices recited above have a close,
intimate, and substantial effect on the free flow of com-
merce within the meaning of Section 2(6) and 2(7) of the
Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I will recommend that it be ordered
to cease and desist therefrom and to take other actions de-
signed to effectuate the purposes and policies of the Act. I
will recommend that it be required to rescind the increase
in its reinstatement fee. Although there is no evidence in the
record that any former member actually paid the Union the
increased fee, on the off chance that such may have oc-
curred I will recommend that Respondent be required to
refund any such fees which were collected, with interest.
Florida Steel Corporation, 231 NLRB 651 (1977); Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). I will also
recommend that Respondent be required to post a notice,
advising its members of their rights and of the remedy in
this case, and that it be required to furnish the Trico Prod-
ucts Corporation signed copies of that notice for posting, if
the Company desires to do so.
[Recommended Order omitted from publication.]
520