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09/11/81 No. 8, v. National Labor

September 11, 1981

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS LOCAL UNION

v.

NATIONAL LABOR RELATIONS BOARD NO. 80-1692 1981.CDC.258



Before MacKINNON, MIKVA and GINSBURG, Circuit Judges.

Petition for review and Cross-Application for enforcement of an Order of the National Labor Relations Board.

APPELLATE PANEL:

Opinion for the Court filed by Circuit Judge MIKVA.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

This case involves a troublesome conjunction of a union constitutional requirement and a clause in the collective bargaining agreement between the union and employer. The union constitution requires members to pay fines before dues; the collective bargaining agreement contains a union security clause requiring the employer to fire any employee who fails to join and maintain membership in the union. The National Labor Relations Act (the "Act") allows union security clauses, but not as a means to collect fines. The National Labor Relations Board (the "Board") found that the conjunction of these two requirements coerced employees in violation of Section 8(b)(1)of the Act, 29 U.S.C. § 158(b)(1)(1976), and ordered the union to delete the clause from its constitution. We grant enforcement of the Board's order. I. THE FACTUAL BACKGROUND

The International Union of Elevator Constructors (the "International") and the national elevator industry have for a number of years negotiated a union security clause in their collective bargaining agreement. The clause requires all covered mechanics and helpers to join the union within thirty days of employment. Employers must dismiss employees who lack the required membership, unless they have reasonable grounds for believing membership was unavailable to the employee on generally available terms or was denied for reasons other than failure to pay dues or initiation fees. *fn1

James Finney, an employee of the San Francisco Elevator Company (the "employer") covered under the union security clause, is a member of Local No. 8 of the International Union (the "Local"). After a dispute at a meeting of the Local, Finney was charged by the Local's Business Manager with violating the International constitution by attempting to override a union official's decision to deny attendance cards to several disorderly members. A regional hearing panel of the International fined Finney $2000, ordered his removal from the Local executive board, and permanently banned him from union office. The International General Executive Board modified the penalty to a $1000 fine and one-year ban. The letter from the Local's Business Manager informing Finney of the modified penalty concluded with a reminder that "Article XI, Section 3 of Local 8's By-Laws states that all fines imposed ... shall stand and be payable before dues. Your next quarter dues are due and payable December 31, 1977." Joint Appendix at 30.

Finney did not pay the fine, but paid regular dues in December 1977, March 1978, May 1978 and September 1978. The Local accepted the payments and did not credit them against the fine. No action was taken to collect the fine and no suggestion was made that the unpaid fine would affect Finney's job. Indeed, the Local appears to have ignored the uncollected fine altogether. J.A. 31.

Nevertheless, Finney filed an unfair labor practice charge under 29 U.S.C. § 160(b) (1976) on January 10, 1978. The Regional Director, acting on behalf of the General Counsel, issued a complaint charging that the Local had violated Section 8(b)(1)by maintaining the bylaw requiring payment of fines before dues in conjunction with the union security clause, and by disciplining Finney in order to deprive him of the right to participate fully in internal union affairs. The basis for the second charge was Finney's allegation that the Business Manager of the Local did not like him because Finney had opposed him in union elections.

The complaint was tried before an administrative law judge on August 22, 1978. The judge ruled against the Local on both counts, finding that the conjunction of the union security clause and the payment of fines requirement (the "fines payable bylaw") coerced employees in violation of Section 8(b)(1) and that the disciplinary action against Finney was a pretext disguising a union political struggle. J.A. 39. The Local filed exceptions to the administrative law judge's ruling. The Board found the evidence insufficient to sustain the charge that the disciplinary actions against Finney were improperly motivated. In a footnote, however, the Board agreed that the fines payable bylaw in conjunction with the union security clause was an unfair labor practice: "We agree with the finding of the Administrative Law Judge that Respondent violated Sec. 8(b)(1)by maintaining art. XI, sec. 3, of its constitution and bylaws which, in essence, provides that all fines and assessments have to be paid by members before dues." J.A. 9. Pursuant to 29 U.S.C. § 160(c) (1976), the Board ordered the Local to abolish the fines payable bylaw.

When the Local moved for reconsideration, the Board denied the motion but amplified its reason for finding the violation. The Board held that while a union has a legitimate interest in collecting fines, and while union security provisions which condition continued employment on the payment of union initiation fees and dues are legal, employment pressure may not be used to collect union fines. The fines payable bylaw, the Board found, constituted just such illicit pressure when coupled with a union security clause in the collective bargaining agreement:

Employees, knowing that their payment of dues is conditioned on prior payment of any fines and assessments owed, can reasonably assume that they must make all of those payments in order to avoid the risk that Respondent will seek their discharge. The Act does not require them to take the risk in order to test the validity of their assumption, nor does it permit Respondent to threaten action indirectly which it cannot threaten directly.

... The implicit threat imposed by the coordinated operation of (petitioner's) rule and a union-security clause is an actual threat. No more explicit coercion is necessary to find a violation of Section 8(b)(1).

J.A. 4-5 (citations omitted). Member Truesdale dissented, arguing that the panel had failed to articulate a rationale for finding the fines payable bylaw an implicit threat: "It seems to me a long leap in logic to conclude that a rule that says nothing about the employment relationship nevertheless impliedly threatens the employees' ...


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