Bricklayers

National Labor Relations Board - Board Decisions

Jan 29, 1992

306 N.L.R.B. 229 (N.L.R.B. 1992)

229
306 NLRB No. 42
BRICKLAYERS
1 The Respondents also filed a request for leave to submit a Divi-
sion of Advice memorandum in Case 30–CB–3144, which they con-
tend supports the judge’s recommended dismissal of the complaint
in this case. The General Counsel filed an opposition. Without need
to rely on the Respondents’ submission, we agree with the judge that
the complaint should be dismissed and therefore find it unnecessary
to rule on the request.
2 Member Raudabaugh notes that the General Counsel did not con-
tend that the amount of union dues, in the context of union-security
and checkoff clauses, is a mandatory subject of bargaining. In the
absence of such a contention, Member Raudabaugh does not pass on
whether he agrees with the Board’s current position that union dues,
in the context of a union-security clause, is not a mandatory subject.
See Service Employees Local 535 (North Bay Center), 287 NLRB
1223 fn. 1 (1988), enfd. 905 F.2d 476 (D.C. Cir. 1990).
1 Errors in transcript have been noted and corrected.
International Union of Bricklayers and Allied
Craftsmen, AFL–CIO, International Union of
Bricklayers and Allied Craftsmen, District
Council of Wisconsin, AFL–CIO and Daniel J.
Titulaer. Cases 30–CB–2813 and 30–CB–2914
January 29, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 29, 1990, Administrative Law Judge
Bernard Ries issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondents filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.2
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Gerald McKinney, Esq., for the General Counsel.
Matthew R. Robbins, Esq. (Previant, Goldberg, Uelman,
Gratz, Miller & Brueggeman, S.C.), of Milwaukee, Wis-
consin, and Sarah Fox, Esq., of Washington, D.C., for the
Respondents.
DECISION
BERNARD RIES, Administrative Law Judge. This matter
was tried in Green Bay, Wisconsin, on January 30 and 31,
1990.
For reasons which will become evident, these cases have
set no speed records in getting to this point. The charge in
Case 30–CB–2813 was filed on December 11, 1987, and the
complaint did not issue until August 9, 1988. The charge in
30–CB–2914, essentially a sequential extension of the first
case, was filed on August 11, 1988, the complaint issued on
September 19, 1988, and the cases were consolidated by an
order published the following day. On January 10, 1989, the
hearing scheduled for January 17 was indefinitely postponed
‘‘pending resubmission of the matters to the Division of Ad-
vice’’ for the Office of the General Counsel. Thereafter, 8
more months passed before the hearing was, on September
14, 1989, reset for January 30, 1990, or in excess of 2 years
from the filing of the first charge. On January 16, 1990, 2
weeks prior to the scheduled resumption, the Regional Direc-
tor issued amendments to the consolidated complaints,
changing, inter alia, the alleged identity of the exclusive bar-
gaining representative involved in these matters.
Thus, more than 2 years passed from initial charge to
hearing. Briefs were received from the General Counsel and
the Respondents on April 4, 1990. While the issues presented
here are difficult, one cannot help but feel that the adminis-
trative process has not lived up to its promise in this matter;
I regret to say that the present decision may not add any lus-
tre to the record made thus far.
The unusually complex problems raised by this proceeding
suggest that the various issues can most usefully be indicated
after the pertinent facts have been discussed. My findings of
fact,1 conclusions of law, and recommendation follow.
I. FACTUAL FINDINGS
Respondent International Union of Bricklayers and Allied
Craftsmen, AFL–CIO (IU) has been functioning as a labor
organization in the United States and Canada for many years.
In the State of Wisconsin, as in other States, it has operated,
probably always pursuant to Section 8(f) of the Act, through
an unknown number of local unions and also through ‘‘dis-
trict councils’’ which, under the IU constitution, may be cre-
ated by the IU Executive Board from two or more locals in
any geographical area determined by the Board. Under the
most recent IU constitution in the record, a district council
is at first composed of at least one ‘‘initial representative’’
from each constituent local, with each local delegation cast-
ing votes equal in number to its membership; the district
council (operating under a constitution drawn up by itself or,
failing that, by the IU Board) ‘‘shall negotiate agreements
with employers covering work performed within the trade
and geographic jurisdictions of the constituent Locals
through a Negotiating Committee of at least three (3) of its
members . . . .’’
More than 15 years ago, all eight of the BAC locals hav-
ing jurisdiction over various sections of the Fox River Valley
area of Wisconsin were formed into a group called the ‘‘Fox
River Valley Mason’s Executive Committee.’’ There can be
little doubt that, although not at first called a ‘‘district coun-
cil’’ (the earlier constitution may have had somewhat dif-
ferent provisions), the ‘‘Executive Committee’’ was the func-
tional equivalent of what is now a district council; a letter
from the committee to the Fox River Valley Contractors As-
sociation dated January 13, 1975, makes that quite clear. The
letter notes that ‘‘all the Locals in the Fox River Valley have
been formed into a District Council’’ to be known as the ex-
ecutive committee, and that ‘‘these Locals will negotiate one
Labor Agreement for’’ 16 named counties, with the ‘‘bar-
gaining committee’’ to be composed of ‘‘the three full time
Business Agents and the President of the Council.’’ The let-
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Fox River Valley ‘‘Executive Committee’’ constitution pro-
vided that the Committee ‘‘shall negotiate and consumate [sic] all
trade agreements.’’ and that the ‘‘President and three B.A.’s shall
negotiate [the] contract.’’
3 The format of the individual agreements, for reasons unclear,
continued to read in places like those of multiemployer associations,
and several references were made to functions which were to be per-
formed by the Contractors Association. E.g., G.C. Exh. 3, pp. 3, 8.
4 Executive Vice President John Flynn testified that a number of
local leaders in Wisconsin had come to the IU soon after the 1985
convention to ask for the creation of a statewide unit. Thereafter, ac-
cording to a letter in evidence which I have no reason to doubt,
hearings on this issue were held throughout the State.
5 The clause was eventually accepted, as we shall see, and appears
in the latest contracts as:
Section 5.1b The Employer shall deduct from the wages of each
employee who has signed a checkoff authorization conforming
to federal law, and transmit monthly to the Union (or to any
agencies designated by said Union for the collection of such
money), the sum for each hour paid which the Union has speci-
fied, or specifies from time to time and so advises the Employer
in writing, as the portion of each employee’s Union dues to said
Union, to its International Union, or to any other affiliate of the
International Union, subject to checkoff. The sums transmitted
shall be accompanied by a statement, in a form specified by the
Union, reporting the name of each person whose dues are being
paid and the number of hours each employee has been paid.
ter requested a date to begin negotiations for a new labor
agreement.2
In January 1983, after hearings, the IU Executive Board
ordered a merger of the eight existing locals, leaving in ex-
istence Locals 3, 9, and 11; ordered certain restructuring of
the District Council; and directed the District Council to ‘‘es-
tablish a uniform rate of dues to be paid by members
throughout the three local unions and to review the current
level of per capita payments to ensure that the District Coun-
cil is properly financed in order to carry out the duties as-
signed to it.’’
The earliest bargaining agreement entered into evidence
(1985–1987) declares it to have been made by and between
the ‘‘Fox River Valley Contractors Association’’ and ‘‘Fox
River Valley Masons District Council of Wisconsin rep-
resenting Wisconsin Local Unions #3, 9, 11 all of whom are
affiliated with the International Union of Bricklayers and Al-
lied Craftsmen, AFL–CIO [and a local of the Operative Plas-
terers International, which was dropped from the next con-
tract] hereinafter referred to as the ‘Union’ or ‘Unions,’ for
the employees represented by them, having jurisdiction as
follows: [naming 17 counties].’’ For the succeeding contract
(1987–1990), the members of the Fox River Valley Contrac-
tors Association decided to negotiate individually, but the
foregoing paragraph remained virtually identical to the pre-
vious one, other than showing each employer signatory by its
own name rather than subsumed within the Contractors As-
sociation.3
Of the two 1987 individually signed contracts in evidence,
the one dated June 15, 1987, pertaining to Jacob C. Basten
Construction Co., Inc., was signed ‘‘For the Union’’ by
Clifford Heyrman, who identified himself in the document as
‘‘Business Manager BAC Local 3,’’ and the July 8, 1987
Oscar J. Boldt Construction Company contract by Ed Jeske,
the business agent for Local 9, who simply referred to him-
self as ‘‘Business Representative.’’ Heyrman was paid by the
executive committee from 1982 to 1984 and then served as
the paid manager of Local 3 from 1984 until 1987.
On July 10, 1987, the IU Executive Board announced, by
letters sent to all BAC locals in Wisconsin, its decision, pur-
suant to the constitution, to establish, effective August 1, a
‘‘statewide District Council of Wisconsin’’ (also referred to
as a ‘‘State Administrative Unit’’) composed of all BAC
locals in Wisconsin.4 The purpose of creating the council
was to ‘‘streamline union functions within the state’’ and
achieve economies in the face of a declining membership.
Leslie Strand, then business manager of Local 8, was ap-
pointed director of the new unit, with five other representa-
tives from four locals, including Heyrman of Local 3, as the
initial executive committee. While each local was to ‘‘remain
intact as a politically autonomous organization,’’ the District
Council would ‘‘conduct the union’s administrative func-
tions, with input from the affiliated local unions.’’ The letter
also established a new dues structure for all the locals, ac-
cording to which journeymen and others would pay a certain
amount of monthly base dues and, in addition, journeymen
would pay ‘‘hourly working dues in an amount equal to
1.75% of the total basic journeyman wage, including fringes,
currently in force under the applicable collective bargaining
agreement.’’ The new unit was not only to ‘‘handle all the
routine administrative functions for the local unions through-
out the state,’’ but also ‘‘all collective bargaining and con-
tract enforcement functions on behalf of its affiliated local
unions.’’ This new entity resulted in the dissolution of the
Fox Valley District Council effective August 1, as well as
in the demise of the ‘‘Wisconsin State Conference’’ (about
which we know almost nothing).
Prior to the establishment of the District Council, the Fox
River Council had been negotiating with various contractors
for new contracts to replace the one expiring in June. At a
meeting of the union membership on May 30, the purpose
of which was to allow the membership to ‘‘ratify’’ the latest
agreement between the employers and the Fox River Coun-
cil, Cliff Heyrman stated that he had been directed by the
IU to see that the new contracts contained dues-checkoff
clauses, which had not been true of the previous contracts.
He also presented to the members a clause which the IU had
furnished (and as to which Heyrman’s testimony is in con-
flict regarding whether the contractors had rejected because
of complaints from some of their employees).5
Daniel J. Titulaer, a member of Local 3 and the Charging
Party here, testified that at the May 30 meeting, the ‘‘general
consensus’’ of the members (the attendance, Titulaer
guessed, was 115–130 members out of a combined three-
local membership of about 300) was opposition to the con-
cept of checkoff and a desire to have ‘‘the right to ratify it,’’
as well, evidently, as the right to vote on any dues increase.
The employers were also proposing a controversial 20-per-
cent decrease in wages and change of Sunday pay from over-
time to straight time. The employees voted not to ratify the
contract and to strike. They were on strike from June 1–15.
During this period, the negotiators met and tentatively
agreed to a contract. Toward the end of the strike, a member-
ship meeting of the three locals ratified the contract, which
now contained both the clause contained in the preceding
footnote and the following new clause which was drawn up
231BRICKLAYERS
6 The record does not indicate that there are any other pending
charges challenging the ‘‘supplanting’’ of all the other Wisconsin
locals by the new statewide district council.
by Heyrman and accepted by the employers and, thereafter,
the employee voters:
Section 5.1a Local Dues & Dues Checkoff. It is un-
derstood and mutually agreed that dues checkoff and
local dues are subject to ratification by the members of
the bargaining unit.
Upon ratification of dues checkoff the contract may
be reopened at any time to initiate the amount ratified
and such amount to be taken from the Base Rate at the
time of ratification.
There never was any sort of subsequent ratification vote held
by ‘‘the members of the bargaining unit.’’
It was following this series of events that the two contracts
in evidence were signed (and, presumably, others) and then,
in July, came the announcement of the formation of the
statewide district council. The dues structure announced in
the same letter increased the monthly dues for working jour-
neymen in Local 3, or so the evidence suggests, from $30
per month to perhaps $70 or more.
In response to communications and rumors about the new
District Council, Charging Party Titulaer arranged for a spe-
cial meeting of Local 3 on July 29 (at which a few represent-
atives of Locals 9 and 11 were also present). Some of the
estimated 40–50 Local 3 members in attendance registered
complaints about the District Council and the dues checkoff,
and an ad hoc committee (called, simply, the ‘‘Executive
Committee’’) was appointed to investigate the possibility of
‘‘going independent,’’ among other things. The committee
included the president, vice president, financial secretary, and
treasurer of Local 3.
Another meeting was set for August 10, and in early Au-
gust printed postcards were sent out to members of all 3
locals, ‘‘suggest[ing] it is in your best interest to postpone
signing the dues checkoff cards’’ until the ‘‘informational
meeting’’ was held on August 10. Letters on Local 3 sta-
tionery were also sent to contractors by the ‘‘Executive Com-
mittee’’ stating, in part, ‘‘Dues checkoff has not been ratified
by the rank and file. It is in violation of our contract to sub-
tract dues checkoff from our payroll checks.’’
On August 6, the IU wrote a letter placing Local 3 in
trusteeship (or ‘‘receivership,’’ as the IU constitution refers
to it) for various reasons having to do with the conduct of
the July 29 meeting. The trusteeship was implemented and,
by letter of August 13, ‘‘all Fox River Valley Contractors’’
were notified by Leslie Strand, director of the new District
Council, of the Council’s formation and far-reaching author-
ity; of the lack of significance of the communication about
checkoff sent by an unauthorized group of BAC members;
that ‘‘on a statewide basis dues check-off language is cur-
rently in place in ‘B.A.C. Collective Bargaining Agreements’
including those affiliate locals formerly referred to as the Fox
River Valley Council’’; and that the new Council would pro-
ceed ‘‘with a working dues assessment, the most reasonable
being the dues checkoff,’’ and checkoff authorization cards
were being sent to all BAC members ‘‘urging compliance.’’
On September 5, 1987, a complaint was filed with the
Secretary of Labor protesting the imposition of the trustee-
ship on Local 3. On April 17, 1989, the trusteeship having
been rescinded in February of that year and an election of
Local 3 officers held in March, the Department closed the
file without taking any action.
Daniel Titulaer adhered to the position that the failure to
accomplish ratification of the dues increase, as set out in the
contracts, meant that the Local 3 dues figure of $30 per
month had not been properly changed. He refused to pay
more than that amount, and after several warnings and let-
ters, the Union terminated his membership effective April 15,
1988, and, pursuant to the union-security clause in the con-
tract, he was subsequently terminated by Basten Construction
Co.
II. THE ESTABLISHMENT OF THE DISTRICT COUNCIL
The first substantive (and amended) complaint allegation is
that Respondent IU violated Section 8(b)(1)(A) by estab-
lishing Respondent District Council to ‘‘supplant’’ BAC
Local Union #3 as the ‘‘exclusive bargaining representative
of the employees’’ in a unit composed of bricklayers and as-
sociated tradesmen employed by Basten Construction Co. It
is the General Counsel’s theory that prior to August 1, 1987,
Local 3 was the exclusive bargaining agent of those employ-
ees (although, as indicated above, this theory came into being
only 2 weeks prior to the hearing; before that, and since at
least August 9, 1988, the Regional Director had believed that
the Fox River Valley District Council had been the one true
bargaining representative).6
Respondents argue, to the contrary, that the Fox River
Valley Council was and had been the exclusive bargaining
representative of the employees, and that this defect in the
complaint allegation makes it fall of its own weight.
The question of precisely what organization served as
‘‘the’’ collective-bargaining agent of Fox River Valley em-
ployees is abstractly interesting. I assume that, prior to 1975,
the locals engaged in individual bargaining. When the em-
ployers’ association was notified in January 1975 that ‘‘all
the Locals in the Fox River Valley have been formed into
a District Council’’ and that these Locals will negotiate ‘‘one
Labor Agreement’’ through a ‘‘bargaining committee’’ com-
posed of three business agents (who serviced all eight Fox
River locals) and the president of the council, it could be ar-
gued either that the locals were thereby indivisibly amal-
gamated into one labor organization for purposes of bar-
gaining or, less likely, that they somehow retained exclu-
sivity over their historic geographic portion of the Fox River
Valley. The earliest bargaining agreement in evidence (1985–
1987) does not give us a more definitive answer; as set out
above, it states that the contract is made ‘‘by and between’’
the Contractors Association and the District Council ‘‘rep-
resenting’’ the three locals ‘‘for the employees represented
by them’’; who ‘‘them’’ refers to is not explained; the gram-
mar could mean that the reference is to the locals or to the
locals and the council as joint representatives.
Since, after 1975, the Fox River Council was authorized
to negotiate ‘‘one labor agreement’’ for all the locals, one
might well conclude that the Council was the bargaining rep-
resentative for each local, with the latter subordinately ad-
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 An undated copy of the constitution of Local 3 (and, at that time,
Local 26) provided that ‘‘[n]egotiations shall be conducted in accord
with the provisions in the Constitution of the District Council,’’ by
a committee composed of the three business agents and the president
of the council, which ‘‘shall take such final and binding actions as
in its sole discretion are in the best interests of the membership.’’
ministering the contract as it applied to each of them.7 What-
ever the correct resolution of this legal issue, it should be re-
called that for 12 years prior to the outbreak of hostilities in
1987, the Fox River Valley locals never exclusively bar-
gained for themselves, but rather surrendered their powers to
a central council. It is therefore difficult to say, as does the
complaint, that Respondent District Council ‘‘supplanted’’
Local 3 as the ‘‘exclusive bargaining representative’’ of the
employees in August 1987.
The term ‘‘exclusive bargaining representative’’ is perhaps
not, in the present context, the most appropriate phrase. As
the parties have stipulated, the locals involved have been at
all times granted recognition under Section 8(f) of the Act,
the provision which allows building industry employers to,
inter alia, enter into agreements with unions which do not
necessarily represent a majority of their employees. Appar-
ently because of this exception to the majoritarian principle
espoused by Section 9(a) of the Act, the Board has seem-
ingly been willing to allow unions relatively free play in 8(f)
settings to realign and restructure intraunion relationships. In
Associated General Contractors, 182 NLRB 224, 225 (1970),
a case on which Respondents strongly rely and which Gen-
eral Counsel assiduously seeks to distinguish, the Board, dis-
cussing a situation in which an International union trans-
ferred jurisdiction over millwrights from Local 90 to Local
1080 at the request of the contractors’ association, stated:
In our opinion the shift in recognition in this case,
prompted by the International’s jurisdictional deter-
mination, was not sufficiently offensive to employee in-
terests to warrant Board intervention. In the construc-
tion industry, where the instant dispute arises, the onsite
craftsmen are not members of a fixed and stable work
force having an identity with a specific employer. They
look to the hiring halls maintained by unions, rather
than employers, for work opportunities. They are highly
organized and rarely are involved in Board-conducted
elections. Representation rights customarily accrue to
the ‘‘referring’’ union. There are important practical
business reasons for employers in the industry to ac-
commodate their labor relations practices to the prac-
tices of the Unions operating in the industry.
These are among the considerations that bear on stat-
utory bargaining conceptions as they apply to this in-
dustry. Congress has given light to these considerations
by enacting 8(f) which makes prehire agreements law-
ful for this industry despite the fact they run counter to
provisions of other sections of the Act.
In this case the contracts negotiated between the
AGC and Locals 90 and 1080, though not of the type
specifically privileged under Section 8(f), see Brick-
layers, Local No. 3, 162 NLRB 476 [(1966)], and also
Dallas Building and Construction Trades Council, 164
NLRB 938 [(1967)], are basically prehire in nature with
respect to future projects. Thus, the effect, basically, of
AGC’s shift in recognition will result in little more than
a shift in the source of labor for these projects. Re-
quests for millwrights will be directed to the hiring hall
administered by Local 1080 rather than Local 90. As
there is no evidence that Local 1080 has operated or
will operate its hiring facilities on other than a non-
discriminatory basis, without preference for union mem-
bership, we must assume that qualified millwrights
working out of Local 90 will receive the same job op-
portunities as those historically working within the ju-
risdiction of Local 1080.
In these circumstances, and as there is no evidence
or suggestion that the International’s action was moti-
vated by considerations other than the fostering of effi-
cient industrial conditions, we are not persuaded that
the record establishes that AGC, by recognizing Local
1080, engaged in conduct having a sufficiently detri-
mental effect upon employee interests to warrant a re-
fusal to bargain finding. For similar reasons, we dis-
agree with the Trial Examiner’s finding that Local 1080
violated Section 8(b)(1)(A) by accepting recognition
and executing a contract with AGC. Accordingly, we
shall dismiss the complaint in its entirety.
It will be noticed that the Board did not conduct a ‘‘con-
tinuity of identity’’ inquiry in this analysis, as it might be
expected to do. See NLRB v. Financial Institution Employ-
ees, 475 U.S. 192, 199–200 (1986). The fact that the Board
was considering an 8(f) situation rather than an 9(a) relation-
ship seems to account for that. Even though it is true that
John Deklawa & Sons, 282 NLRB 1375 (1987), has now af-
forded ‘‘limited exclusive representative status’’ (Kamdor
Plumbing Corp., 299 NLRB No. 18, slip op. at 3 (July 26,
1990)) to building industry unions during periods in which
contracts are in effect, Deklawa & Sons, supra at 1385, the
Board also recognizes that the ‘‘limitation’’ on the exclusiv-
ity it has adopted as a policy measure is necessary because
8(f) contracts, by definition, are, unlike 9(a) recognition, not
based on a majority choice by employees as required by Sec-
tion 9(a). Thus, where Section 8(f) is the foundation of the
relationship, and the employees have made no choice of an
exclusive bargaining representative, a change in the nature or
identity of that representative becomes of slight consequence.
Even if continuity of identity were significant here, it is
less than clear that a meaningful change occurred when the
Wisconsin State District Council was instituted in 1987.
Local 3 had already been subordinated, 12 years earlier, to
the Fox River Council, which had been composed of eight,
and later three, locals. From what evidence there is in the
record, neither Local 3 nor any of the affiliated locals had
exercised any substantial authority during that entire period.
The forced affiliation of all of the Wisconsin locals into one
unit has not been shown to have adversely affected whatever
‘‘autonomy’’ remained to Local 3.
I accordingly conclude that even if Local 3 is considered
to have been, vis-a-vis the Fox River Valley District Council,
the bargaining representative of all bricklayers employed by
contractors who had signed bargaining contracts and who
came to work in Local 3’s area of the Fox River Valley, the
‘‘supplanting’’ of Local 3 by the Wisconsin State District
Council effective August 1, 1987, did not violate Section
8(b)(1)(A). See Southern Stevedoring Co., 230 NLRB 609,
613 (1977).
233BRICKLAYERS
8 Under union-security contracts, employees must pay initiation
dues and fees to satisfy the union-security clause. Whether they pay
automatically, by authorizing deduction from their pay, or whether
they pay in person out of their own pockets, would ordinarily seem
a matter of little moment. In this case, however, the higher dues im-
posed by virtue of the existence of a checkoff clause at the local
level made a meaningful difference.
III. THE RECEIVERSHIP
The complaint next alleges that Respondent IU violated
Section 8(b)(1)(A) when it placed Local 3 in receivership on
August 6, 1987, ‘‘because members of said union opposed
Respondent’s actions.’’
General Counsel argues that the ‘‘reason’’ for the trustee-
ship was that ‘‘Local 3 refused to agree to the checkoff of
the higher dues and their remittance to Respondent District
Council as part of Respondent International’s transfer of
Local 3’s representative status to Respondent District Coun-
cil.’’ Some background information is in order.
At the 1983 meeting of the IU General Board, there was
considered at length a task force report on adoption of a re-
vised dues structure to ‘‘cope with the fiscal problems facing
our union,’’ the membership of which had seriously declined.
It was decided that the most equitable system was one under
which all members would pay base dues, and working mem-
bers would, in addition, pay an extra percentage based upon
the number of hours which they worked. It was further con-
cluded that the intricacies of ‘‘working dues’’ would be such
that collection of these dues would be ‘‘feasible only through
employer deductions under a check-off system.’’ The Board
decided that locals which did not have a checkoff provision
in their contracts ‘‘must make every effort to negotiate one.’’
The relationship of the checkoff clause to the ‘‘working
dues’’ system was considered so significant that members of
locals which had not been able to negotiate checkoff would
continue to pay fixed dues, while those with checkoff would
pay lesser base amounts plus a fraction of ‘‘the average na-
tional hourly wage package for each hour of employment.’’
It appears that dues were (or were perceived to be) consider-
ably lower under this system for those bargaining units with-
out checkoff clauses. Presumably because of this perception,
and, as noted, to make the structure ‘‘feasible,’’ the IU set
a goal of every local and affiliate negotiating a checkoff
clause by 1990 (recognizing, of course, that every employer
might not agree to such a provision).
Although the testimony is confusing on this subject, and
the briefs do not discuss it at all, it is this background—a
fear of higher dues for working journeymen—which evi-
dently led Charging Party Titulaer and other members of
Local 3 to mount an opposition in June 1977 to a dues
checkoff clause, an otherwise seemingly innocuous provision
generally preferred by unionists.8
As set out earlier, Titulaer arranged a special meeting of
Local 3 on July 29, attended by about 50 members (of an
estimated total (by Heyrman) of 165 active members). On
August 6, the IU president wrote a letter stating that he had
been informed that at the July 29 meeting, ‘‘the Local and
its officers decided to refuse to pay the Local’s assessment,
to block the implementation of the dues check-off provision
in the Local’s collective bargaining agreement, to advocate
that members refuse to sign dues check-off authorization
cards, and to discuss the possibility of disaffiliation from this
International Union. The clear intent of these actions is to
interfere with the implementation of the newly established
District Council of Wisconsin. Therefore, in order to prevent
interference with the operation of the District Council of
Wisconsin, to assure the performance of the lawful directives
of the IU Executive Board, and to forestall and prevent the
conduct of the Local’s affairs in such a manner as to jeop-
ardize the interests of the International Union and its affili-
ates, IU Vice President Noble B. Cain is hereby appointed
as receiver with full powers over the affairs of Local 3.’’
After a subsequent hearing, the receivership was continued.
It appears that the evidence supports, in general, the IU’s
understanding of the events of July 29. Titulaer testified that
the Local 3 membership present (which included four offi-
cers) was not ‘‘happy with . . . how they were taking us
over and merging us—getting us into dues checkoff.’’ Notes
made by Clifford Heyrman show that ‘‘no one stood up’’
when asked who favored dues checkoff. Vice President
Badeau said that he thought the ‘‘whole plan was illegal be-
cause it was violating a signed contract.’’ Titulaer at one
point testified that at the meeting, ‘‘people were saying’’ that
‘‘Local 3 and the members did not want this reorganization.
We were getting it shoved down our throats.’’ Although he
later replied ‘‘no’’ to the question whether any of the mem-
bers said anything ‘‘to indicate that they wanted to prevent
the State reorganization,’’ the latter denial is rather difficult
to accept. An ‘‘executive committee’’ was appointed to ‘‘see
what legal rights we had on fighting them taking away Local
3’s autonomy legally from the inside’’ (having allegedly de-
cided that ‘‘you can’t fight an organization such as the Union
from the outside.’’). Notes taken by Heyrman state that Vice
President Badeau made a motion, seconded by Titulaer, to
appoint a committee to hire a hall and call a ‘‘special meet-
ing in the Valley of all locals as soon as possible,’’ with a
‘‘suggestion not to sign dues checkoff cards until after that
meeting.’’ An amendment was made by a member, seconded
by financial secretary, Clark, and passed, ‘‘to discuss at that
meeting the possibility of going independent.’’ Heyrman’s
notes also show that President Champeau commented that a
special assessment levied on the locals’ treasuries in connec-
tion with setting up the District Council would not be paid
‘‘at this time’’ and would ‘‘be discussed’’ at the meeting of
August 12.
On brief, General Counsel cites no cases in support of the
allegation that the IU violated Section 8(b)(1)(A) by impos-
ing a trusteeship on Local 3. Respondent’s brief argues (1)
that a trusteeship is an internal union matter, not subject to
Board jurisdiction; (2) that the imposition of the trusteeship
here was pursuant to the broad authority granted the IU
president by the union constitution; and that after an inves-
tigation under Title III of the Labor Management Reporting
and Disclosure Act, 29 U.S.C. § 461–466, the Labor Depart-
ment did not challenge the trusteeship.
The Board has held that intraunion policy and political
conflicts may be protected by Section 7 of the Act, even
though they may also come within the purview of the free-
dom of speech and assembly guaranteed by the Landrum-
Griffin Act. Carpenters Local 22 (Graziano Construction),
195 NLRB 1 (1972); Jacobs Transfer, 201 NLRB 210, 218–
219 (1973); Operating Engineers Local 400, 225 NLRB 596
(1976). It also may be, due to the proviso to Section
8(b)(1)(A) (‘‘Provided, that this paragraph shall not impair
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the right of a labor organization to prescribe its own rules
with respect to the acquisition or retention of membership’’)
that the proviso ‘‘extends some protection to union conduct
that would otherwise fall within the prohibition against re-
straint or coercion in the exercise of Section 7 rights.’’
Helton v. NLRB, 656 F.2d 883, 893 (D.C. Cir. 1981). The
limitations on such union rules, as enunciated by the Su-
preme Court in Scofield v. NLRB, 394 U.S. 423, 430 (1969),
are that the rule must be ‘‘properly adopted,’’ ‘‘reflects a le-
gitimate union interest,’’ ‘‘impairs no policy Congress has
imbedded in the labor laws,’’ and is ‘‘reasonably enforced
against union members who are free to leave the union and
escape the rule.’’
In determining the validity of the trusteeship imposed here,
it seems appropriate to consider Section 302 of the LMRDA
(29 U.S.C. § 462), which describes the parameters within
which trusteeships may be created:
Trusteeships shall be established and administered by
a labor organization over a subordinate body only in ac-
cordance with the constitution and bylaws of the orga-
nization which has assumed trusteeship over the subor-
dinate body and for the purpose of correcting corrup-
tion or financial malpractice, assuring the performance
of collective bargaining agreements or other duties of a
bargaining representative, restoring democratic proce-
dures or otherwise carrying out the legitimate objects of
such labor organization.
There is no claim here that the IU failed to act in accord-
ance with its constitution in imposing the trusteeship. Nor do
I think it can be said that the ‘‘purpose’’ of the trusteeship
was not a good-faith effort to ‘‘carry [] out the legitimate ob-
jects’’ of the IU, as it conceived them to be. The efficiency
and economy contemplated by the establishment of the Wis-
consin District Council, by the creation of a new dues struc-
ture, and by the perceived supporting need of checkoff provi-
sions were well within a sensible range of action, and it rea-
sonably appeared that the actions that Local 3 officers and
members were taking, and threatening to take, probably
using and/or seizing the assets of that local, were designed
to inhibit and thwart neutral and legitimate IU policies. Let-
ter Carriers v. Sombrotto, 449 F.2d 915, 923 (2d Cir. 1971)
(‘‘Although § 1203(c) [of the Postal Reorganization Act] pro-
tects the rights of employees or labor organizations to seek
a new bargaining representative when they have become dis-
satisfied with the existing one, it does not necessarily mean
that they are immune from discipline by the parent body as
provided in the union constitution. The union is entitled to
protect itself, and actions taken toward this end appear to us
directed toward a ‘legitimate object’ within the meaning of
29 U.S.C. 462.’’); Executive Board Local 1302 v. Car-
penters, 477 F.2d 612, 615 (2d Cir. 1973) (in case of dis-
affiliation attempt by local from council, trusteeship properly
imposed ‘‘to prevent the destruction of the bargaining unit
and to preserve the status of the bargaining representative.’’)
In response to a complaint filed on September 5, 1987, by
a member of Local 3, the Department of Labor did not get
around to taking action until April 17, 1989, 2 months after
the trusteeship had been rescinded. In its letter closing the
file for mootness, however, the Department stated, ‘‘It ap-
peared from the initial investigation that the trusteeship had
been imposed for an allowable purpose under Section 302 of
the Labor Management Reporting and Disclosure Act, 29
U.S.C. § 462.’’ It does, in fact, seem that the trusteeship was
valid under the LMRDA. It may, however, also be argued
that the activities which induced the trusteeship are, accord-
ing to the Board precedent cited above, protected from dis-
cipline.
I do not find it easy to reconcile the two lines of prece-
dent. However, since Congress has established a specific
standard for assessing the propriety of trusteeships, and since
I conclude that Respondent IU instituted this receivership for
bona fide and statutorily acceptable purposes of protecting
and fostering official positions espoused by the IU and of
preventing loss of Local 3 assets, it is my conclusion that the
Union should not be held to have trespassed on 8(b)(1)(A)
rights. As the Board has held that it is ‘‘charged with consid-
ering the full panoply of congressional labor policies in de-
termining the legality of a union fine,’’ Carpenters Local 22
(Graziano Construction), supra, 195 NLRB at 2, it would
seem that the Board must respect a trusteeship established
pursuant to congressional guidelines under the LMRDA. See
Price v. NLRB, 373 F.2d 443 (9th Cir. 1967).
IV. THE ALLEGEDLY UNLAWFUL INCREASE IN DUES
The complaint alleges that Respondent District Council
unlawfully increased dues of members of, ‘‘inter alia, BAC
Local Union #3’’ on or about August 13, 1987, without fol-
lowing the ratification procedure set forth in section 5.1(a)
of the bargaining agreement, quoted above.
Actually, it was in the letter of July 10 to all BAC locals
in Wisconsin that IU President Joyce announced the forma-
tion of the State District Council effective August 1, in-
formed the members that the IU would be making a ‘‘sub-
stantial loan’’ and assessing each local’s treasury $16 per
member for startup costs, and explained in detail the ‘‘initial
District Council dues structure’’ that had been established.
General Counsel does not question the calculation or proce-
dure by which the new dues system was arrived at (other,
I suppose, than the unexpressed but logical claim that, the
creation of the District Council having allegedly been unlaw-
ful, the dues change should also fail); specifically, he states
only that ‘‘Respondents violated Section 8(b)(1)(A) when
they increased the dues without the employees’ consent as
provided in the collective-bargaining agreement.’’
Respondents argue on brief that section 5.1(a) of the
agreement does not apply because it only provides for ratifi-
cation of local dues, a distinction which, it is asserted, was
implicitly recognized in section 5.1(b) (which refers to ‘‘dues
to said union, to its International Union, or to any other affil-
iate of the International Union’’) and which had existed prior
to the reorganization as well. Finally, Respondent seems to
contend that the failure to conduct a rank-and-file ratification
amounted to an amendment of the agreement which amend-
ment the District Council was empowered to negotiate. Nei-
ther side cites any cases relating to a contractually retained
power of employees to ratify a portion of the contract in
order to give it finality.
Bargaining history leads me to think that the word
‘‘local’’ may mean less than appears here, since the clause
which the Union originally proffered for inclusion in the
agreement, and which now appears as section 5.1(b), was
labelled in the proposal as ‘‘Check-off and Local Dues’’
235BRICKLAYERS
9 As to local unions, art. VIII N. (1) and (2) provide that each
local ‘‘not affiliated with a District Council’’ shall establish a Nego-
tiating Committee, and ‘‘[t]he formulation of the collective agree-
ment shall be the work of the Negotiating Committee.’’ According
to art. IX B, ‘‘The District Council shall negotiate agreements with
employers covering work performed within the trade and geographic
jurisdictions of the constituent Locals through a Negotiating Com-
mittee of at least three of its members.’’
10 As already noted, it is difficult to envision how ratification on
such a basis would work.
11 I discredit Titulaer’s testimony (from which he appeared to re-
cede as time passed and which, in any event, is not intended by the
complaint to undergird a violation, see Tr. 15–17) that Flynn said
that if employees did not sign checkoff cards, they would be
‘‘kicked out.’’ I also credit Flynn with regard to remarks he made
about death benefits, but I see no need to extend this already pro-
tracted decision by discussing a subject which is neither alleged to
Continued
even though it clearly was aimed at a wider target. On the
other hand, I would not rely upon the rather spontaneous tes-
timony of Heyrman on the meaning of ‘‘local’’ as used in
section 5.1(a), and it may be that the parties to the contract
used the term in its normal connotation. One point made by
Respondent which is not easy to answer is that it is incon-
ceivable that the contracts intended to reserve the right for
each ‘‘bargaining unit’’ not only to fix dues for the units rep-
resented by the locals, but also for the Fox River Valley
Council, the Wisconsin State Conference, and the Inter-
national Union.
On that assumption, the failure to afford the ‘‘members of
the bargaining unit’’ (presumably on an employer-by-em-
ployer basis, as opposed to ratification by Local 3 in its en-
tirety) the right to ratify ‘‘local’’ dues cannot be shown on
this record to have coerced or restrained employees, because
there is no clear evidence that ‘‘local’’ dues were changed
for Local 3 as a result of the establishment of the State Dis-
trict Council.
It seems plain, moreover, that the amount of dues is a per-
missive, not a mandatory, subject of bargaining, in that it is
an internal union affair which does not ‘‘vitally affect’’ the
‘‘wages, hours, and other terms and conditions of employ-
ment’’ about which Section 8(a)(5) requires bargaining.
Chemical Workers Local 1 v. Pittsburgh Glass Co., 404 U.S.
157, 179 (1971); Service Employees Local 535 (North Bay
Center), 287 NLRB 1223 fn. 1 (1988), enfd. 905 F.2d 476
(D.C. Cir. 1990). Even when parties have successfully bar-
gained about a permissive subject, a party may reject the bar-
gain without violating Section 8(a)(5). Chemical Workers,
supra at 187–188. If the Union had a right under the act to
unilaterally modify the contract in this respect, its failure to
afford a ratification vote to employees would not seem to be
capable of violating Section 8(b)(1)(a).
In any event, a contractual promise to let employees in the
bargaining units ratify dues increases would appear to run
afoul of both the union constitution and the gloss put on it
by experience. There is no evidence that rank-and-file mem-
bers have ever ratified contracts in the past, and no expla-
nation of why, in 1987, ‘‘ratification’’ meetings were held.
Nowhere in the constitution is there any provision for ratifi-
cation of collective-bargaining agreements, or parts thereof,
by the membership of either locals or district councils.9 Evi-
dence submitted by Respondent shows that in 1977 and
1981, attempts were made at the national convention to
amend the constitution to require submission of proposed
agreements ‘‘to a vote of the membership of the Local Union
for approval’’; these efforts failed.
Whether this analysis is useful, I am not sure. The union
members are not authorized to ratify contractual provisions,
but if their negotiating committee cedes them the right to do
so, and the employer signs a contract based upon that condi-
tion, is the union estopped from disregarding the self-im-
posed ratification requirement? One answer is that we have
heard of no complaint from any employer about this matter.
Signatory employers would have the right to waive the invo-
cation of any estoppel to which they might be entitled, and
the record indicates that, in fact, dues increases and dues
checkoffs are being honored by employers. Furthermore,
since, as discussed, the amount of dues is a permissive bar-
gaining subject, it would appear that the Union is free to uni-
laterally modify the provision without violating the Act,
whether or not it has promised ratification to ‘‘members of
the bargaining units.’’10
I reach the conclusion that the failure to afford ratification
of dues increases (the complaint make no reference to check-
off) did not violate Section 8(b)(1)(A). It should nonetheless
be pointed out that a serious question exists as to the legality
of the dues change. Article IX (‘‘District Council’’) of the
constitution makes no provision for the IU to initially set
dues for the District Council; it states, instead, that within
120 days after their first meeting, the initial representatives
of the Council shall ‘‘forward a District Council Constitu-
tion’’ covering a number of specified topics, including ‘‘the
method of financing the Council and of paying its ex-
penses,’’ after which the Executive Board shall ‘‘approve or
modify the same in its discretion.’’ Only if the District
Council fails to do so does the Board ‘‘have the authority
to promulgate a Constitution to regulate the affairs of the
District Council.’’ In the present case, however, the IU pur-
ported to establish the ‘‘initial District Council dues struc-
ture’’ in its letter of July 10, 1987.
General Counsel has not addressed this apparent discrep-
ancy, either in the complaint or on brief. There may be more
here than meets the eye; an internal grievance or appeal
might have been filed and the correct procedure thereafter
followed. Since it is impossible to say that the issue has been
fully litigated, I shall not concern myself further with the po-
tential implications under the NLRA of failing to comply
with this constitutional procedure.
V. THE OCTOBER MEETING
The complaint alleges that IU representatives, in October
1987, ‘‘threatened employees that they would be discharged
from their jobs at the request of Respondents unless they
paid the increased dues . . . .’’ The IU, in the belief that
‘‘some of the problems in Local 3 may be the result of inad-
equate communication,’’ held a meeting for the membership
in October, at which Executive Vice President John Flynn
and Noble Cain, both an International vice president and the
receiver for Local 3, made a presentation. With respect to the
statement alleged in the complaint, both Flynn and Charging
Party Titulaer basically gave the same testimony—that Flynn
told the members that if they did not pay the increased dues,
they could have their membership terminated, which could
lead to termination of employment.11 Although General
236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be violative (after two submissions to the Advice Division of the
General Counsel) nor was in fact, on my findings, violative. To the
extent that Champeau’s testimony supports that of Titulaer, I also
credit Flynn.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Counsel attacks Flynn’s credibility, sub silentio he seems to
accept that the only issue is the legal one of whether it was
unlawful for Flynn to tell the members that they could ulti-
mately be discharged unless they paid the increased dues. He
contends that the statement was violative because the dues
increase had not been ratified by the membership. Since I
have already found against General Counsel on the validity
of the increase despite the absence of ratification, I conclude
that the remarks made by Flynn were not unlawful.
VI. THE DISCHARGE OF TITULAER
Finally, the consolidated cases allege that Respondents
violated the Act by sending letters in April, May, and June
1988, seeking the discharge of Titulaer because he refused
to pay the increased dues, and by ultimately causing
Titulaer’s discharge of June 17, 1988, for that reason.
The evidence indicates (although not definitively) that
Titulaer continued to pay the previous amount of dues after
August 1, 1987. He was notified by letter on January 6,
1988, that he was delinquent and notified verbally and by
letter thereafter that he would be dropped from membership
and terminated if he did not make good. After further cor-
respondence with Titulaer and his employer, the council can-
celed his membership and eventually convinced his employer
to terminate his employment under the union-security provi-
sion, effective June 14, 1988.
General Counsel submits that the threats of discharge and,
of course, the discharge itself, were violative of the Act be-
cause the bargaining unit was not allowed to vote on dues
in accordance with section 5.1(a) of the contract, and the
dues demanded were, accordingly, invalid in amount. My
earlier discussion of the point dictates a rejection of this con-
tention. So far as the record shows, Titulaer was not treated
discriminatorily and was the only member of the Union who
was terminated for failure to pay his increased dues. It ap-
pears that he holds in his own pocket the key to reemploy-
ment in this industry and locality; if he should pay a rein-
statement fee and the increased dues, he will be entitled to
work under the contracts (assuming they were renewed sub-
stantially intact after their expiration in May 1990).
In accordance with the foregoing discussion, I shall rec-
ommend dismissal of this allegation.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The complaints in Cases 30–CB–2813 and 30–CB–2914
are dismissed.