NRTW

California Saw and Knife


320 NLRB 224 320 NLRB No. 11,

151 L.R.R.M. (BNA) 1121, 1995-96 NLRB Dec. P 15,922

*1 CALIFORNIA SAW AND KNIFE WORKS

AND

PETER A. PODCHERNIKOFF

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL–CIO;

AND ITS DISTRICT LODGES NOS. 50, 66, 115, 120, 508, 720, AND 751;

AND ITS LOCAL LODGES NOS. 78, 354, 821, 946, 1125, 1327, 1871, 1916, 2024, 2227

AND 2230 (VARIOUS EMPLOYERS)

AND

VARIOUS INDIVIDUALS

Cases 34-CA-5160, 34-CB-1313, 34-CB-1314, 34-CB-1315, 34-CB-1316, 34-CB-1323, 34-CB-1324, 34-CB-1360, 34-CB-1361, 34-CB-1362,34-CB-1363, 34-CB-1408, 34-CB- 1409, 34-CB-1421, 34-CB-1422, 34-CB-1440(4-30), 34-CB-1440(32-48), 34-CB- 1440(50-61), 34-CB-1440(63-64), 34-CB-1440(67-68), 34-CB-1440(86), 34-CB-1450, 34-CB-1451, 34-CB-1452, 34-CB-1453, 34-CB-1454, 34-CB-1455, and 34-CB-1510

Dated, Washington, D.C. December 20, 1995

DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS BROWNING, COHEN, AND TRUESDALE On May 29, 1992, Administrative Law Judge Clifford H. Anderson issued the attached decision. The General Counsel, the Respondent Unions, and various Charging Parties filed exceptions and supporting briefs.

The General Counsel, the Respondent Unions, the Respondent Employer, and various Charging Parties filed answering briefs. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions as modified and to adopt the recommended Order as modified and set forth in full below.

I. INTRODUCTION

In Communications Workers v. Beck, 487 U.S. 735 (1988), the Supreme Court held that Section 8(a)(3) of the National Labor Relations Act (the Act or NLRA) does not permit a collective-bargaining representative, over the objection of dues- paying nonmember employees, to expend funds collected under a union-security agreement on activities unrelated to collective bargaining, contract administration, or grievance adjustment.3 The Court in Beck construed Section 8(a)(3) as providing that employees enjoying the benefits of union representation should bear their fair share of the cost incurred by the collective-bargaining agent in representing them.4 The Court held, however, that the expenditure of dues and fees on activities outside the union’s role as collective-bargaining representative violated the union’s duty of fair representation to nonmember employees who objected to such expenditures.5

The Beck decision has evoked immense legal and political controversy.6 This case represents the Board’s first consideration of the ramifications of the Beck decision under the NLRA.7 We review today the voluntary Beck program set up by the International Association of Machinists and Aerospace Workers (IAM, Respondent Union, or the Union). Cases originating in unfair labor practice charges against the application of the IAM’s rules and procedures under that program to employees of a number of different employers were consolidated for trial. These consolidated cases present a range of questions respecting rights and duties under union-security clauses authorized by Section 8(a)(3) that have been triggered by the holding in Beck but were unanswered by the Supreme Court. These issues include: (1) whether notice is required to nonunion members of the right to object to payment of full fees, and to fee payment objectors regarding the use of such fees; (2) whether certain restrictions may be placed on the time and manner of registering a Beck objection; (3) whether objectors may be charged only for those activities undertaken directly on behalf of their bargaining unit; (4) what types of union activities that employees may be compelled to pay for under the union-security clauses that are authorized by Section 8(a)(3) of the Act; and (5) what procedures are permissible for determining amounts owed by objectors when issues of chargeable expenses are in dispute.

*2 Prior to addressing each of those specific issues, we make the threshold determination of the standard by which a union’s obligations under Beck are to be assessed. In section II below we hold that union obligations under Beck are properly assessed under the well-established duty of fair representation owed to all members of a designated bargaining unit. In section III we determine whether various elements of the IAM’s Beck policy alleged to be unlawful violate the Union’s duty of fair representation. In section IV we address whether the IAM’s Beck policy as applied by the various Respondent District and Local Lodges violated the duty of fair representation. In making these determinations, we are mindful of the Supreme Court’s characterization of the two sets of rights and interests our decision here must serve:

    [T]he objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the union’s ability to require every employee to contribute to the cost of collective-bargaining activities.8

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1The April 30, 1991 order did not include certain cases which were added subsequently by agreement of the parties with concomitant amendments to the complaint. The order also included numerous additional charges, additional Charging Parties, additional complaint allegations, additional Respondents and counsel of record, all of whom and which are no longer part of these proceedings as a result of numerous settlements reached through the laudable efforts of counsel–both counsel remaining of record and other counsel no longer of record–at various times throughout the litigation. The complaint was amended to omit the settled allegations and further amended from time to time to add other allegations. Because a complete recitation of each case consolidation, severance, and complaint issuance and/or amendment would needlessly burden the instant decision, the normal recitation of the history of the charges and pleadings will be omitted. Individual documents are discussed below where independently relevant.

2 The General Counsel’s and Respondent Unions’ unopposed motions to correct transcript are granted.

3 As a result of the pleadings and the stipulations of counsel both orally at the trial and in the form of written stipulations and exhibits, there were few disputes of fact regarding collateral matters. Where not otherwise noted, the findings here are based on the pleadings, the stipulations of counsel, or unchallenged credible evidence. Where the pleadings, the stipulations, or the record otherwise establish uncontested facts or legal conclusions such as the agency relationship of certain individuals to particular Respondents or the Sec. 9 representative status of a labor organization or labor organizations in conjunction with particular bargaining units, the conclusions are noted without discussion.

4 Issues and arguments respecting remedy are discussed in the remedy portion of this decision, infra.

5 In certain cases 10(b) defenses relevant to particular charges are discussed under the appropriate complaint allegations, infra.

6 Where special circumstances apply to particular complaint paragraphs, this issue is again addressed under the analysis of the relevant complaint allegation, infra.

7 Sec. 8(a)(3) of the Act, as amended by the Taft-Hartly Act in 1959, contains a proviso: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization … (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. The Board in Union Starch & Refining Co., 87 NLRB 779 (1949), enfd. 186 F.2d 1008 (7th Cir.1951), cert. denied 342 U.S. 815 (1951), interpreted this language as preventing a union under a union-security clause from requiring more than the tender of dues and initiation fees. Union-security clauses may be seen to be legally equivalent to agency shop clauses which typically provide an employee must either become a union member or pay the union a service fee– usually equal in amount to union dues. NLRB v. General Motors Corp., 373 U.S. 734 (1963).

8 The policy is set forth in full in Appendix V of this decision.