Petition for a Writ of Certiorari — Local 399, International Brotherhood of Electrical Workers v. National Labor Relations Board

JUL 16 1974

MICHAEL RODAK. JR. CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1973

No. 73-2032

LOCAL 399, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BCARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIY.

ROBERT E. FITZGERALD, JR.

EpWARD J. CALIHAN, JR.

Attorneys for Petitioner

Gunthorp-Warren Printing Company, Chicago @ 346-1717 <imse

TABLE OF CONTENTS

oR ee eee ee ee ae ee a ee

Jurisdiction .

ee

Reasons for Granting the Writ ................000005

Conclusion .

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

oe eee eee eee eee eee eee ee ee eee eee eee ene

ee |

“eee eee eee eee eee eee eee eee eee eee eeeene

|

ee

ebeaegueeeoeoeneee ae eseseoseeoeseeaseseseevneneev aes

TABLE OF AUTHORITIES CITED

Cases \

Allis-Chalmers Mfg. Co.. 388 U.S. 175 ............4. 15, 16

Beasley v. Pod Fair of North Carolina, 94 Sup. Ct. 2023.. 14

YET Ee ery eer T ... (see Industrial Towel, etc.)

Florida Power & Light Co. v. IBEW, 42 L. W. 5059 ..... 14

Idarado Mining Company, 77 NLRB 792 .............

ELSE pa RR REAR NAT ERS 7, 8,9, 10, 11, 12, 13, 14, 15, 18

Industrial Towel and Uniform Service, A Division of

Cavalier Industries Inc., 195 NLRB No. 187 .........

Rees eae Ce ee ane pe Cr a ee Ain Ro ga 8,9, 10, 11, 12, 13

International Association of Machinists v. Gonzales, 356

Ri EE ag a igs Kb a Oe Re es ae 15

NLRB v. Bell Aerospace, 94 Sup. Ct. 1757 ............ 14

NLRB v. Boeing Company, Inc., 93 Sup. Ct. 1952 ..... 15, 16

NLRB v. Granite State Joint Board, 409 U.S. 213 .....15. 16

NLRB v. International Union. United Automobile, Aircraft

and Agricuitural Workers of America, AFL-CIO, 320

fe ot: eer ree er rrr eT Te ree Te eT eT RT ee 16

| err (see NLRB v. International Union, etc.)

a me a er eer ee ee 15, 16, 17

Veto Ca Ta, TAG Pe Ge oc ccc astacianneaess il

Statutes

Be Mee 6 CRORE. hab cnee ch vc eeac ve cuabivivenes 2

, Bo) wee bs eee rere rer ey erry mre rere yt 12,14

ot ee es dd) a aera 12,14

BP Re ESD ck a ben xen Coa ee ee eee yeu 9

29 USC § 158(b)(1)(A) .........3,. 4,5, 8. 15, 16, 17, 18

Oe re. 6 PUTED. nse Oks Kd ced cei ee ne nn Ee

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1973

No.

LOCAL 399, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

a

PETITION FOR WRIT GF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

The Petitioner, Local 399, International Brotherhood of

Electrical Workers, AFL-CIO (hereinafter Local 399) prays

that a writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

—

The Opinion of the Court of Appeals, not yet reported,

appears as Appendix A of this Petition. The Court of Appeals

originally issued its opinion in an unpublished order form on

April 17, 1974, but at the request of the National Labor

Relations Board ordered, on June 24, 1974, that the previously

unpublished order be reissued as a printed opinion and that it

will be citable as precedent henceforth. (Copy of Court Order

attached as Appendix B)

The Decision and Order of the National Labor Relations

Board (hereinafter called Labor Board) is reported at 200

NLRB No. 157. The opinion plus the administrative law judge’s

decision (under title Trial Examiner’s Decision) is attached as

Appendix C.

JURISDICTION

The original unpublished order of the Court of Appeals was

issued April 17, 1974. This Court’s jurisdiction is invoked

under 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED

1. When a Union's Constitution provides for continued

membership, may an employee, who voluntarily joined that

Union, and who failed to submit a written resignation to the

Union, be absolved from his maintenance of membership obliga-

tion to resume payment of union dues upon his return to a

craftsman’s job, solely because he had worked as a foreman

for the same employer.

2. Whether the Court of Appeals properly found that Local

399 violated Section 8(b)(1)(A) and 8(b)(2), by its request-

ing an employer to terminate an employee under the provisions

of an existing collective bargaining agreement, for failure to

tender dues from the date of his return from a foreman’s job to

a craftsman’s job, and thereby give the employee a second

option to join the Union under the collective bargaining agree-

ment’s maintenance of membership provision.

STATUTES INVOLVED

The Labor Management Relations Act (LMRA), 29 USC

$151 et seq. in it Section 8(b)(1)(A) and Section 8(b)(2)

are applicable to this case. Those sections read as follows:

(b) It shall be an unfair labor practice for labor

organization or its agents—

(1) to restrain or coerce

(A) employees in the exercise of the rights

guaranteed in Section 7: Provided, That this para-

graph shall not impair the right of a labor organiza-

tion to proscribe its own rule with respect to the

acquisition or retention of membership therein;

* * *

(2) to cause or attempt to cause an employer

to discriminate against an employee in violation of

subsection (a)(3) or to discriminate against an em-

ployee with respect to whom membership in such

organization has been denied or terminated on some

ground other than his failure to tender the periodic

dues and initiation fees uniformly required as a con-

dition of acquiring or retaining membership.

STATEMENT OF THE CASE

Unfair labor practices charges alleging a violation of Sections

8(b)(1)(A) and 8(b)(2) of the Labor Management Relations

Act were filed by Hlinois Bell Telephone Company (hereinafter

Bell) on March 22, 1971. The National Lator Relations Board

(hereinafter Labor Board) through its Peoria Office, dismissed

the charges on April 2. 1971. Thereafter Bell filed an appeal

of the dismissal with the General Counsel of the Labor Board.

That appeal was denied on July 27, 1971.

Bell filed, on August 5, 1971, a request for reconsideration by

the General Counsel. of his affirmance of the dismissal. There-

after, a newly appointed General Counsel granted the request

for reconsideration and reversed the dismissal of the charge

on February 15, 1972.

Complaint was issued on March 1, 1972, alleging violations

of Section 8(b)(1)(A) and 8(b)(2) and a hearing was held

by the Labor Board on April 25, 1972.

At the hearing the parties entered into a stipulation of facts

as follows:

“(1) Robert Galka was hired on September 1, 1959

by Illinois Bel! Telephone Company as a frame man at

Decatur, Illinois. He joined Respondent Union in March,

1960.

“(2) On March 15, 1968, Robert Galka, who was then

a communications maintenance man, was appointed to a

supervisory position as a station installation foreman with

Hlinois Bell Telephone Company in Decatur, Illinois, which

position was outside the collective bargaining unit repre-

sented by Respondent.

“(3) On February 1, 1969, Robert Galka, at his own

request. returned to the job of communications maintenance

man which was within the collective bargaining unit repre-

6

sented by Respondent, which he was in prior to his pro-

motion out of the bargaining unit.

“(4) Following his assumption of the duties of com-

munications maintenance man, Robert Galka did not

resume payment of his dues.”

Introduced at the Labor Board hearing were copies of

relevant sections of the Constitution of the International Brother-

hood of Electrical Workers, which provided for the oath of

allegiance to the Union upon joining, and the retention of

membership upon acquiring supervisory status. (Copies of

relevant sections are attached as Appendix D)

At the Labor Board hearing the employee, Galka, admitted

that he made no attempt to submit a written resignation to

Local 399 or the International Union, at any time.

Also introduced at the Labor Board hearing were copies of

relevant sections of the collective bargaining agreement in effect

during the times material thereto. (Copies attached as

Appendix E)

The employee, Galka, admitted that he retained all the fringe

benefits provided by the collective bargaining agreement from

the beginning of his employment with the company, which

included his time as a foreman.

Local 399 union agents made requests for the resumption of

dues payments of Galka at various times during 1969 and the

first half of 1970.

On July 1, 1970, Local 399 sent a letter to Bell request-

ing Galka’s termination because of his refusal to make arrange-

ments to pay for dues owed from the date of his return to the

collective bargaining unit. Bell responded by letter of July

30, declining the Union's request. In September, 1970, unfair

labor practice charges were filed with the Peoria office of the

Labor Board by both Local 399 and Bell. Both charges were

subsequently withdrawn at the request of the Peoria office of the

Labor Board. On September 24, 1970, a second letter was sent

7

by Local 399 to Bell requesting Galka’s termination for failure

to tender union dues. Bell again refused to comply with the

union’s request.

On December 3, 1970, Local 399’s attorney wrote a letter

to Galka advising him that appropriate action would be taken

on behalf of that Union, if he did not satisfy his dues arrearage.

Shortly thereafter Galka paid Local 399 the amount of dues

owed and signed a check-off authorization card for the deduction

of dues.

The Labor Board, from the recommended decision of its Ad-

ministrative Law Judge, decided that the employee ended his

obligation to resume dues payments be :ause of his having

worked in a foreman capacity. The decision was based pri-

marily upon the Labor Board’s 1948 decision in a case called

Idarado Mining, 77 NLRB 392, which concluded that an

employee obtained the status of a new employee upon return

to the craftsman’s job and thus had a second option to join

the union. The decision of the Seventh Circuit Court of

Appeals substantially affirmed the findings of the Labor Board

in all relevant respects.

%

Wik

REASONS FOR GRANTING THE WRIT

1.

THE DECISION OF THE SEVENTH CIRCUIT IS IN DIRECT

CONFLICT WITH A DECISION OF THE SIXTH CIRCUIT

COURT OF APPEALS

The primary question decided by the Seventh Circuit con-

cerns continued employee status of Galka in so far as the appli-

cation of the maintenance of membership, union security clause

is concerned, upon his return to the craftsmen’s job, in light of

the ability of the union to prescribe its own valid internal rules

for retention of membership under the § 8(b)(1)(A) proviso.

The instant case is the second case in the Labor Board's

recent attempt to revive a decision issued in 1948 known as the

Idarado Mining Company case, 77 NLRB 392. The essence of

the Board's decision in the Jdarado Mining case was that, when

an employee leaves a bargaining unit and subsequently returns

to work within that bargaining unit, he is to be considered as

a new employee and thus to be given a second option to join

the union under a maintenance of membership contract. Follow-

ing the Labor Board decision in 1948 there was a retreat from

the application of the theory of that case so that it became

dormant for many years.’

In 1972, however, the Labor Board in a decision issued in a

case commonly known as Cavalier Industries, Inc. attempt to

revive this theory by applying it to a situation where the

employee returned to work after a severance of employment.

Industrial Towel and Uniform Service, A Division of Cavalier

Industries, Inc., 195 NLRB No. 187. The Board specifically

1. Itis mentioned in only one Labor Board decision, 149 NLRB

1573 (1969), between 1959 and 1971, and then as a footnote

along with other cases.

9

referred to the /darado Mining decision and used that case as

the basis for finding violations of Section 8(a)(3) by the

Employer and of Section 8(b)(2) by the Union involved. The

language of the Board in this regard is as follows:

“The sole remaining question is whether the severance of

the relationship vitiated the chechoff authorization which

had been executed in Durham's previous period of em-

ployment. In /darado Mining Company, an employee

hac joined a union during his first period of employment

under a maintenance-of-membership contract. After quit-

ting his job he returned to work and the union insisted

that he pay dues pursuant to his becoming a ution member

during the first period of employment. The Board found

that the severing of the employment relationshiy also

severed the employee's obligation to remain « member and

that he had the status of a new employee who would

assume the obligation of membership only if he voluntarily

rejoined the union. By analogy we think that the severing

of the employment relationship severed Durham's obliga-

tion under the chechoff authorization and that her obliga-

tion would not be revived until she had signed a new

authorization. (footnotes omitted)

When the Labor Board sought enforcement of the Cavalier

case, the Sixth Circuit Court of Appeals denied the Board's

Mining case by name, the Court rejected the Board’s view

of the new employee status, and specifically rejected that con-

clusion in the following language.

Secondly, the circumstances, as found by the Trial

Examiner, surrounding the re-employment of Durham in

1969 indicated that neither the company nor the union

treated her resumption of employment as an initial employ-

ment. In addition. we cannot say that the Board's finding

that she had no reasonable expectancy of re-employment

at that time is supported by substantial evidence. Durham

did not testify as to any information imparted by her to the

company at the time of her departure in 1966, nor to any

information imparted to her as to the expected duration of

her layoff. The fact that she was not charged an initiation

10

fee by the union also indicates that the union regarded

her as a member in good standirg returning to work. The

substantial evidence indicates thst Durham was not hired

in 1969 as a new employee. (473 F. 2d 1258 at page

1260.)

After rejecting the Labor Board conclusion that the Union

member should be considered as a new employee with a second

option to join the Union, that Court went on to decide the

effect of the members’ failure to attempt to revoke the dues

checkoff authorization. In that regard the Court said as follows:

Absent any evidence that the company continued to

deduct dues after a valid revocation of the authorization,

we cannot find that the company violated the Act. Since

Durham did not sever her employment relationship and

since no revocation of the checkoff authorization form was

auempted, the authorization continued to be valid, and

there was no unfair labor practice by the company in

deducting the union dues from the pay of the charging

party. It follows, of course, that no unfair labor practice

was committed by the union. (473 F. 2d 1258 at page

1261.)

The facts of the Cavalier case regarding the employee are

substantially the same as the employee conduct in the instant

case, except that here the employee did not even leave the com-

pany’s employment or the coverage of the collective bargatning

agreement's seniority and fringe benefit provisions. However,

the Circuit courts reached contrary conclusions as to the dues

obligation of the employee-member.

Since the Sixth Circuit effectively overruled the Board's

reliance upon the rationale of the /darado Mining case, Local

399 urged the Seventh Circuit to rely upon the Cavalier decision

as authority for the specific rejection of the Labor Board's

attempt to resurrect the /darado Mining theory in the instant

case.

The Seventh Circuit recognized that the Labor Board's find-

ing in the instant case was based upon the rationale of /darado

Mining and said as follows:

11

The Board has decided in other cases that when an

employee terminates his relationship with one employer

and is subsequently rehired by that same employer, he is

treated as a new employee for purposes of joining or

not joining the Union, notwithstanding the presence of a

valid maintenance of membership clause in the collective

bargaining agreement. /darado Mining Co., 77 NLRB

392 (1948); Yellow Cab Co., 148 NLRB 620 (1964).

(slip opinion, page 3)

When the Seventh Circuit considered the contention of Local

399 that the Sixth Circuit decision specifically rejected /darado

Mining, the Court said as follows:

NLRB \. Industrial Towel and Uniform Service, 473

F. 2d 1258 (6th Cir. 1973), on which the Union relies,

is inapposite. The employee therein executed a checkoff

authorization that was self-renewing annually unless the

employee took affirmative action. In 1966 the employee

quit her work because of illness and did not return until

1969, at which time the employer reinstated the dues

checkoff without independent authorization. Character-

izing the situation as a “layoff,” the court held that the

employee was not a “new” employee and therefore the

checkoff authorization remained valid. The Sixth Circuit

did not “specifically” reject the theory of the Board in

Idarado, supra, as the Union claims. (quotes in original )

(slip opinion page 4)

It is submitted by Local 399 that the Seventh Circuit's con-

clusion that the Sixth Circuit decision did not “specifically”

reject the theory of /darado Mining is erroneous. The above

cited language by both the Labor Board and the Sixth Circuit

clearly shows that the authority for the Labor Board, to attempt

to confer new employee status upon a returning employee, was

its Idarado decision. The absence of the citation, by name, of

the /darado Mining case in the Sixth Circuit decision, does not

overcome the fact that the Sixth Circuit conclusion was that

the Labor Board's /darado rationale was in error.

Local 399 submits that the decision of the Seventh Circuit

is substantially in conflict with the decision of the Sixth Circuit

ee

in the Cavalier case, because that decision specifically rejects

the second option to join the union theory which is the essence

of the Jdarado Mining decision.

Il.

THE DECISION OF THE SEVENTH CIRCUIT PRESENTS AN

IMPORTANT QUESTION OF FEDERAL LAW WHICH

SHOULD BE DECIDED BY THE SUPREME COURT

The fact that important questions of labor law were decided

by the Seventh Circuit is clearly seen from the reaction of the

Labor Board following the issuance of that decision. The

initial decision of the Seventh Circuit was issued in an order

form under Circuit Rule 28, and was specifically classified as

an unpublished order not to be cited. The Labor Board, by a

motion dated June 6, 1974, petitioned the court to reconsider

its decision not to issue a published opinion. (copy attached as

Appendix F) That motion, almost in its entirety, shows the

important legal questions that arose from the decision of the

Seventh Circuit, in the opinion of the Labor Board.

The Labor Board, in its motion in paragraph No. 2 listed the

important questions decided by the Court, as follows:

2. In enforcing the Board’s order, the Court's decision

resolved several issues concerning the union-security obli-

gations of union members who leave bargaining unit jobs

for supervisory positions and later return to unit work as

employees subject to a maintenance of membership clause.

Thus, the Court affirmed: (1) the Board's application

of Sections 2(3) and 2(11) to exclude supervisors from

bargaining unit “employees” for union-security purposes;

(2) the Board’s Jdarado Mining (77 NLRB 392) line of

cases; and (3) the Board’s factual determinations with

respect to the Union’s “honorary withdrawal” status. The

Court also discussed, and found inapposite, the Sixth

Circuit’s ruling in N. L. R. B. Vv. Industrial Towel and

Uniform Service, 473 F. 2d 1258 (1973). (quotes in

original )

13

Thus the Labor Board motion recognizes substantial issues were

considered by the Court. The motion goes on, in paragraph

No. 3 to clearly show the far reaching effect of the Seventh

Circuit’s decision. In this regard the Board motion stated as

follows:

3. The issues dealt with in the “order” are plainly not

“frivolous” or so insubstantial as to require no “explanation

of the reasons for the action taken.” Circuit Rule 28

(Guidelines for unpublished orders). Rather, the Court

has recognized the substantial questions raised and has

provided a full explanation of its reasons for affirming

the Board's findings. On the surface, it may appear that

the Court's decision has significance only for the parties

immediately involved in the case. However, we believe

that it would be of assistance to the labor relations com-

munity to have access to the Court’s decision, and to guide

their conduct accordingly. And, the Board 1s, of course,

interested in disseminating the fact that the Court has

approved the /darado Mining principle, and has read the

Sixth Circuit's Industrial Towel decision as not rejecting

that principle.

The Labor Board's concluding sentence above, that it is

interested in disseminating the fact that the Court has approved

the Idarado Mining principle and has read the Sixth Circuit's

Cavalier case (called Industrial Towel decision) as not rejecting

that principle, is a clear recognition of a split in the Circuits, as

cited above. It is submitted that this part of the motion makes

it crystal clear that the Labor Board itself considers that a split

in the Circuits exists and that the Seventh Circuit decision will

be used by the Board for further application of the Idarado

Mining theory. If any question as to the Labor Board's con-

sideration of the importance of the decision and its planned

future application of Idarado Mining remained, it was clearly

resolved by the Board's paragraph No. 4 which stated as follows:

at

14

4. For these reasons, the Court's enforcement ruling

does involve issues “of continuing public interest” and con-

stitutes “a significant and non-duplicative contribution” to

the decisional law under the National Labor Relations Act,

and thus should be published under Circuit Rule 28

(Guidelines for published opinions). (quotes in original)

The Board’s request was granted by the Court and on June

24 the Court changed its decision from an unpublished order to

a printed decision which will be citable as precedent hence-

forth. (Copy of the Board’s Order attached as Appendix G)

The importance of the legal question raised by the Seventh

Circuit's decision, however, is not limited to the split in the

circuits concerning the /darado Mining theory. As noted by the

Labor Board in its initial issue presented. the Court's decision

affirms the Labor Board's interpretation and application of

Section 2(3) and 2(11) of the Act which results in the exclu-

sion of supervisory employees from the scope of bargaining unit

“employees” for union-security purposes.

This Court has recently decided a number of Labor Board

cases concerning the relationship of supervisory employees to the

bargaining unit employees in a labor union context. NLRB v.

Bell Aerospace, 94 Sup. Ct. 1757 and Beasley v. Food Fair of

North Carolina, 94 Sup. Ct. 2023. The Labor Board obviously

considers the decision of the Seventh Circuit as an aflirmation of

its conclusion regarding the proper interpretation of Sections

2(3) and 2(11) of the Act in a union security situation.

Further, this Court, on June 24, 1974. issued its decision in

the Florida Power and Light case, 42 L. W. 5059. which

concerned the obligation of a supervisor toward the Labor

Union of which he is still a member. In that case, this Court

concluded that the supervisor, who by his own and the employ-

er’s choice retained his membership in the union, had the

obligations such membership requires from the employee-

member to the union, even though in a supervisory status. It is

15

submitted that the Seventh Circuit decision, as it interprets the

Labor Board /darado Mining theory and the effect of supervisory

status of the employee, raises a substantial question concerning

this Court's conclusion, and seriously undermines the effect of

that decision and the other recent decisions of this Court cited

above.

Finally. the Seventh Circuits decision raises an important

question of a union member's right to resign from a labor

organization, when viewed in relation to the obligations of

an existing union security clause situation. In NLRB v. Boeing

Company, Inc., 93 Sup. Ct. 1952 this Court specifically reaffirmed

its earlier conclusion that there exists a contractual relationship

between the union member and his union. This Court said as

follows:

* % * * *

As we noted in Allis-Chalmers, court enforcement of

union fines is not a recent innovation but has been known

at least since 1867. 388 U. S. at 182 n. 9. See also

Summers, “The Law of Union Discipline: What the Courts

Do in Fact,” 70 Yale L. J. 175 (1960). The relationship

between a member and his union is generally viewed as

contractual in nature. International Association of Machin-

ists V. Gonzales, 356 U. S. 617, 618 (1958); Scofield v.

NLRB, supra, 394 U. S., at 426 n. 3; NLRB v. Granite

State Joint Board, 409 U. S. 213, 217 (1972), and the

local law of contracts or voluntary associations usually

governs the enforcement of this relationship. NLRB v. Allis-

Chalmers Manufacturing Company, supra, 388 U. S., at

192 and 193, n. 32: Scofield v. NLRB, supra, 394 U. S.,

at 426 n. 3. (93 Sup. Ct. 1952 at page 1957.)

Thus. this Court restated the source of the duties that a member

owes to his Union. Further, that decision made specific refer-

ence to the effect of this proviso of Section 8(b)(1)(A) of the

Act. This court said:

Section 8(b)(1)(A) of the Act provides, in pertinent

part, that it shall be an unfair labor practice for a labor

16

organization “to restain or coerce (A) employees in the

exercise of the rights guaranteed in section 7 of this title.”

29 U. S. C. § 158(b)(1)(A) (1970). Among the §7

rights guaranteed to employees is the right to refrain from any

of the concerted activities described in that section. /d.,

§ 157. We have previously held that § 8(b)(1)(A) was

not intended to give the Board power to regulate internal

union affairs, including the imposition of disciplinary fines,

with their consequent court enforcement, against mem-

bers who violate the unions’ constitutions and bylaws.

NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 87

S. Ct. 2001, 18 L. Ed. 2d 1123 (1967); Scofield v.

NLRB, 394 U. S. 423, 89 S. Ct. 1154, 22 L. Ed. 2d 385

(1969). (footnotes omitted) (93 Sup. Ct. 1952 at rage

1955.)

The decision of the Seventh Circuit affirms the Labor Board

conclusion that an employee may void the effect of valid

internal Union rules concerning the retention of membership,

by working as a supervisor and then returning to the bargaining

unit.

In addition, as noted in the Boeing case this Court has

also recently considered the question of what obligations a

union member has to his Union, insofar as the retention of

membership is concerned. Thus, in the case of NLRB v. Granite

State Joint Board, 409 U,. S. 213, this Court concluded that an

employee-member could withdraw from the Union when the

collective bargaining union security provisions were no longer

effective, due to the hiatus in that collective bargaining agree-

ment. This Court’s conclusion, that a resignation may be effec-

tive as to the union member’s relationship to the Union, however

left standing a decision by the Court of Appeals for the First

Circuit which is known as the Pauling case, NLRB v. Iterna-

tional Union, United Automobile, A & A Wlhrs., 370 F. 2d

12. That decision concerned, directly, the question of a Union's

internal rules regarding the retertion of membership, under a

maintenance of membership clause that was then currently in

17

effect. The Pauling case, which was cited by Local 399 to the

Seventh Circuit, clearly stands for the proposition that where

an employee voluntarily joins the union under a maintenance

of membership provision, which by its terms do not require

membership, then a greater obligation to comply with the

Union’s valid internal rules is devolved upon that employee-

member. Specifically, the First Circuit said on that point as

follows:

“However, we believe that it is quite another thing when

the employee eschews his ‘reluctance’ and voluntarily joins

a labor organization. At this point, under our view, the

employee takes off the protective mantle of Section 7’s

‘refraining’ provision and renders himself amenable to the

reasonable internal regulations of the organization with

which he chooses to cast his lot.

* * s * s

“In short, we believe that the Union’s Constitution and

By-laws—here relevant—were valid and viable provisions

with which the employees had to comply if they desired

to effectively sever their relationship with the Union. It is

true that under Section 7 of the Act, and in the light of

the limited security agreement which obtained between

the Company and the Union in the instant case, the subject

employees need not have joined the Union. However, once

they voluntarily took that step, they embraced not only the

benefits but also the burdens which flowed from their

union membership, One of those ‘burdens’ was the duty of

comporting with the Union's reasonable internal regulations;

a requirement they failed to discharge here.” (Emphasis

supplied.) (320 F. 2d 12 at page 16.)

Thus the Seventh Circuit decision, which is noted by the

Labor Board as its third substantial question, namely the Board’s

factual determination with respect to the union’s “honorary

withdrawal” status, is clearly of major significance insofar as the

application of the proviso of 8(1)(A) is concerned.

The decision of the Seventh Circuit in the instant case con-

cerns a number of basic questions which have been, and con-

ed

18

tinue to be, of primary interest to the Labor Board and this

Court in the area of the employee-member relationship with

his union. In addition, it makes a substantial pronouncement

concerning the obligations that devolve upon the employee-

member under a maintenance of membership type of union

security clause.

CONCLUSION

The split among the Circuits as to the propriety of the

Board's attempt to reactivate its /darado Mining theory is a

sufficient basis for this Court to exercise its jurisdiction and grant

the Petition.

However, in addition to the conflict among the Circuit

Courts, there are presented substantial federal questions in

the area of a union member's obligation to his union plus the

duties required by an employee-member under a maintenance of

membership provision. It is submitted that the instant decision

is an appropriate case for this Court to resolve the conflict

among the Circuits and to clarify the rights and obligations of

union members under Section 8(b)(1)(A) so that the Labor

Board may properly administer this important section of the

statute.

For the reasons set out above the Petition for Writ of Cer-

tiorari should be granted.

Respectfully submitted,

RoBertT E. FITZGERALD, Jr.

Epwarp J. CALIHAN, Jr.

Attorneys for Petitioner

Al

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 73-1293 September Term, 1973 January Session, 1974

NATIONAL LABOR RELATIONS BOARD, >

Petitioner,

ILLINOIS BELL TELEPHONE Com-

PANY, Application for En-

intervenor, forcement of an

vs. Order of the Na-

tional Labor Rela-

tions Board.

LocaL 399, INTERNATIONAL BROTH-

ERHOOD OF ELECTRICAL WORKERS,

AFL-CIO,

Respondent. )

Argued January 14, 1974——-Decided April 17, 1974

Before KILEY, Senior Circuit Judge, CUMMINGS and

SPRECHER, Circuit Judges.

Per CuriAM. The Labor Board's enforcement petition

presents the issue whether the Board properly found that the

respondent Union' violated §§ 8(b)(2) and (1)(A) of the

Nationai Labor Relations Act* by threatening and attempting

to cause the discharge of employee Galka for non-payment

1. Local 399, International Brotherhood of Electrical Workers,

AFL-CIO.

2. 29 U.S.C. § 151 ef seq.

A2

of Union dues upon his return to the bargaining unit from which

he had earlier been transferred to a supervisory position. We

hold the Board’s order is supported by substantial evidence in the

record as a whole, and grant enforcement.

In March, 1968, Robert Galka, an eight year employee of

intervenor Illinois Bell Telephone Company (Bell) and member

of respondent Union, was promoted from his position as com-

munications maintenance man to a supervisory position as sta-

tion installation foreman. He informed Union steward Maddox

that since he “was in management and . . . wasn’t in the Union

any more,” his dues should be discontinued. This was done,

and contact with the Union terminated.

In February, 1969, Galka left his supervisory position and

returned to the bargaining unit. Union steward Nalefski told

Galka in April that he had some cards for him to sign “in

order... to get... . Union dues started again.” Galka agreed,

but no cards were presented.

Nothing further was done until June, 1970, when Maddox

told Galka that he was “in trouble” because he owed “some

back dues” since he was “automatically” reinstated to Union

membership in February, 1969, when he rejoined the unit.

Galka disagreed and refused to sign a payroll deduction card.

On July 1 the Union wrote Bell that if Galka did not pay the

back dues Bell should fire him. Galka told Maddox he would

pay current, but not back, dues, and Maddox said Galka’s

“job was at stake.” Bell agreed with Galka and refused to

fire him then, and in September, upon a renewed request by

the Union. In December Union attorney Fitzgerald wrote

Galka implying that the Union would insist on Bell firing him.

Galka then, at Beii’s suggestion, paid back dues of $141.45

“under protest.”

On March 23, 1971, Bell filed the instant charge. After a

hearing, the Administrative Law Judge found that Galka re-

turned to the bargaining unit as a “new employee” without any

obligation to rejoin the Union; that there was no evidence that

A3

Galka had been retained in the Union on “honorary withdrawal”

status while he was a foreman; and that the Union committed

an unfair labor practice within the meaning of §§ 8(b)(1)(A)

and (2) of the Act by attempting to have Bell fire Galka for

failure to pay Union dues he was not obligated to pay. The

Judge also found Fitzgerald's letter violative of § 8(b)(1)(A).

The Judge ordered the Union to repay Galka $141.45 plus

interest and to inform Bell to disregard Galka’s checkoff author-

ization until he executed a new one.

The Board adopted the Judge’s findings and decision and

accepted his recommended order. The enforcement proceeding

before us followed.

The Union contends that Galka’s status as a Bell employee

continued while he was a foreman, and that that continuing

status, coupled with the maintenance of membership clause in

the collective bargaining agreemic:it, obligated him to rejoin

the Union and to pay the back dues upon his reentry into the

bargaining unit. Furthermore, the Union contends that, pur-

suant to Article XXVI, §§ 3 and 4 of its constitution, during

his term as a foreman Galka was on “honorary withdrawal” status

in the Union and was automatically reinstated to Union mem-

bership on return to the unit. Neither contention has merit.

The Board has decided in other cases that when an employee

terminates his relationship with one employer and is subsequently

rehired by that same employer, he is treated as a new employee

for purposes of joining or not joining the Union, notwithstand-

ing the presence of a valid maintenance of membership clause in

the collective bargaining agreement. Jdarado Mining Co., 77

NLRB 392 (1948); Yellow Cab Co., 148 NLRB 620 (1964).

The same is true of an employee transferred out of the bar-

gaining unit who then returns to it. He “stands in the same

shoes as one being hired by the . .. Company for the first time,

who has never been a member of the . . . Union... .” Convair,

111 NLRB 1055, 1056 (1965). See also Kaiser Steel Corp.,

125 NLRB 1039, 1041 (1959).

A4

Galka became a “supervisor” within the meaning of § 2(11)

of the Act when elevated to foreman. Section 2(3) specifically

excludes “supervisors” from the definition of “employees.”

Under the Board’s policy as stated in the aforementioned cases,

we think that when Galka became a foreman, his statutory

status as an “employee” within the bargaining unit was termi-

nated as it would have been if he had left Bell and gone to work

elsewhere, and that when he rejoined the bargaining unit, he

was not obligated to rejoin the Union.

NLRB v. Industrial Towel and Uniform Service, 473 F. 2d

1258 (6th Cir. 1973), on which the Union relies, is inapposite.

The employee therein executed a checkoff authorization that

was self-renewing annually unless the employee took affirmative

action. In 1966 the employee quit her work because of illness

and did not return until 1969, at which time the employer

reinstated the dues checkoff without independent authorization.

Characterizing the situation as a “layoff,” the court held that the

employee was not a “new” employee and therefore the checkoff

authorization remained valid. The Sixth Circuit did not “spe-

cifically” reject the theory of the Board in /darado, supra, as

the Union claims.

We think too that the Administrative Law Judge was justified

in finding that Galka was not on “honorary withdrawal” status

while he was a foreman. The Union’s constitution provides for

two methods of conferring this status on a member.’ The first,

3. Article XXVI.

Sec. 3. Any member not desiring to maintain his standing,

who retires from the trade or is unemployed, or in such other

cases as may be decided by the L. U., may be issued an

honorary withdrawal card provided dues are paid for the

previous month or the current month if the application is made

after the fifteenth of such month.

Upon returning to the trade, or again becoming employed,

and having complied with this Article, he shall deposit his

withdrawal card in the L. U. that issued it and continued mem-

bership by paying the current month dues. No new initiation

fee is necessary, except that any (A) member shall pay the

$2 fee as requived in Article X.

Sec. 4. “B. A.” members not employed under the jurisdic-

AS

requiring issuance of an “honorary withdrawal card” to the irdi-

vidual, is clearly inapplicable here since Galka never received

such a card. The second method allows the member to “be

shown as on honorary withdrawal without actual issuance of

the card.” This is the method the Union contends it utilized

in this case.

However, the Judge did not err in finding that the second

method was “permissive rather than automatic in application,”*

and that the Union introduced no evidence to indicate that

Galka was “shown on honorary withdrawal.” The Board's

determination on this point in no way impaired the Union's right

under the proviso in § 8(b)(1)(A) “to prescribe its own rules

with respect to the acquiring or retaining of membership. . . .”

Finally, although a contrary inference than that drawn by

the Judge can be drawn from the “appropriate action” language

of Fitzgerald's letter to Galka (that is, that Fitzgerald would

take legal action on the alleged debt rather than seek to have

Galka discharged), we think there is substantial evidence in

the record as a whole to support the Judge’s inference that Fitz-

gerald’s letter threatening Galka’s discharge and constituted an

unfair labor practice.

For the reasons given, the Board's order will be enforced.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit.

tion of the Local Union, for at least a month can be shown as

on honorary withdrawal withow actual issuance of the card,

unless the L. U. Bylaws provide otherwise. Officers of the

L. U. are not entitled to withdrawal status without forfeiture

of their office.

_ 4. Since the member “can be shown as on honorary withdrawal,”

it follows that he need not be.

Bl

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Ilinois 60604

June 24, 1974.

Before

Hon. RoGer J. KiLey, SR., Circuit Judge

NATIONAL LABOR RELATIONS BOARD, )

Petitioner,

No. 73-1293 “= Application for En-

forcement of an

Order of the Na-

tional Labor Rela-

tions Board.

LocaL UNION 399, INTERNATIONAL

BROTHERHOOD OF ELECTRICAL

WorKeErS, AFL-CIO,

Respondent. J

This matter comes before the Court on the “Motion To Re-

consider Decision Not To Issue Published Opinion”, filed herein

on June 8, 1974 by counsel for petitioner. On consideration

whereof, this Court being fully advised on the premises,

It Is ORDERED that the previous “Unpublished Order” of

this Court entered pursuant to Circuit Rule 28 be reissued as

a printed opinion. Said printed opinion will be citeable as

precedence henceforth.

Cl

APPENDIX C

D—6801

Decatur, Ill.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

LocaL Union 399, INTERNATIONAL )

BROTHERHOOD OF ELECTRICAL

WorKeErS, AFL-CIO

. Case 38-CB-351

and

ILLINOIS BELL TELEPHONE COMPANY )

Decision and Order

On June 16, 1972, Administrative Law Judge’ Wellington A.

Gillis issued the attached Decision in this proceeding. There-

after, the Respondent filed exceptions and a supporting brief, the

Charging Party filed a brief in opposition to the exceptions, and

the General Counsel filed a brief in support of the Decision.

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, as amended, the National Labor Relations

Board has delegated its authority in this proceeding to a three-

member panel.

The Board has considered the record and the attached Deci-

sion in light of the exceptions and briefs and has decided to

affirm the rulings, findings, and conclusions of the Administra-

tive Law Judge and to adopt his recommended Order.”

“1. The title of “Trial Examiner” was ‘changed to ‘Administrative

Law Judge” effective August 19, 1972.

2. The Respondent’s July 7 request for oral argument is denied

inasmuch as the record and the bricfs adequately present the posi-

tions of the parties.

C2

Order

Pursuant to Section 10(c) of the National Labor Relations

Act, as amended, the National Labor Relations Board adopts

as its Order the recommended Order of the Administrative Law

Judge and hereby orders that Respondent. Local Union 399,

International Brotherhood of Electrical Workers, AFL-CIO, its

officers, agents, and representatives, shall take the action set

forth in said recommended Order.

Dated, Washington, D. C. Dec. 21, 1972.

Epwarp B. MILLER, Chairman

HOWARD JENKINS, JR., Member

JOHN A. PENELLO, Member

NATIONAL LABOR RELATIONS BOARD .

(SEAL)

TXD-429-72

Decatur, II].

C3

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Division of Trial Examiners

Washington, D. C.

LocaL UNION 399, INTERNATIONAL )

BROTHERHOOD OF ELECTRICAL

WorkKERS, AFL-CIO

. Case No. 38-CB-351

and

ILLINOIS BELL TELEPHONE COMPANY |

Ira S. Epstein, Esq., for the General Counsel.

Edward W. Bergmann, Esq., of Seyfarth, Shaw, Fairweather

& Geraldson, of Chicago, Ill., for the Charging Party.

Robert E. Fitzgerald, Jr., Esq., of Chicago, Ill., for the Re-

spondent.

TRIAL EXAMINER’S DECISION

Statement of the Case

Wellington A. Gillis, Trial Examiner: This case was heard

by me at Decatur, Illinois, on April 25, 1972, and is based upon

a charge filed on March 22, 1971, by Illinois Bell Telephone

Company, hereinafter referred to as the Company or il'nois

Bell, upon a complaint, issued on March 1, 1972, by ine

General Counsel for the National Labor Relations Board, here-

inafter referred to as the Board, against Local Union 399, Inter-

national Brotherhood of Electrical Workers. AFL-CIO, here-

inafter referred to as the Respondent or the Union, alleging

violations of Section 8(b)(1)(A) and (2) and Section 2(6}

and (7) of the National Labor Relations Act, as amended (61

Stat. 136), and upon an answer timely filed by the Respondent

denying the commission of any unfair labor practices.

C4

At the hearing, all parties were represented by counsel, and

were afforded full opportunity to examine and cross-examine

witnesses, to introduce evidence pertinent to the issues, and to

engage in oral argument. Subsequent to the close of hearing.

timely briefs were filed by counsel for all parties.

Upon the entire record in this case,' and from my observation

of the witnesses, and their demeanor on the witness stand and

upon substantial, reliable evidence “considered along with the

consistency and inherent probability of testimony” (Universal

Camera Corp. Vv. N. L. R. B., 340 U. S. 474, 496), I make the

following:

Findings and Conclusions

I. Commerce

Illinois Bell Telephone Company is an Illinois corporation

with offices and places of business located in various places in

Illinois, including a Decatur, Illinois, facility, where it is engaged

in the business of providing telephone communications. During

the 12 month period immediately preceding the issuance of com-

plaint. the Company received gross revenues in excess of

$100,000. The parties admit, and I find, that Illinois Bell

Telephone Company is an employer engaged in commerce

within the meaning of Section 2(6) and (7) of the Act.

II. The Labor Organization Involved

It is admitted and I find, that Local Union 399, International

Brotherhood of Electrical Workers, AFL-CIO, is a labor organi-

zation within the meaning of Section 2(5) of the Act.

1. Consistent with my recollection of the testimony and in con-

formity with the undisputed facts, { hereby gran. the General

Counsel’s motion, filed subsequent to the close of the hearing, to

correct the transcript as follows:

P. 29 |. 12 “1969” is corrected to read “1968”.

P. 29 |. 24 “1968” is corrected to read “1969”.

C5

IlI. The Alleged Unfair Labor Practices

The Issue

Whether, under a maintenance of membership contract, an

employee who leaves the bargaining unit to take a supervisory

position with the employer, and subsequently returns to his

former job in the bargaining unit, is compelled to resume his

dues obligation to the union.

The Facts

For many years a contractual relationship has existed between

Illinois Bell and Local 399, the most recent contract providing

for a maintenance of membership union security clause. In

pertinent part, the clause provides that “All employees with 30

days or more of employment with the Company who on Novem-

ber 30. 1948. were members or who thereafter became mem-

bres of Local t goons 165, 315, 336 or 399, shall maintain

their members! f ‘he Union in good standing as a condition

of employment under this Agreement after June 30, 1968.”

Robert Galka. the alleged discrininatee herein, first went to

work for the Company at its Decatur, Illinois plant on Septem-

ber 1, 1959, as a frame man. The following March 1960, Galka

joined the Union. Eight years later, on March 15, 1968, Galka,

who was then a communications maintenance man, was ap-

pointed to a supervisory position as a station installation fore-

man with the Company at Decatur. This position was outside

the bargaining unit represented by the Union. On February 9,

1969, Galka, at his own request, left management and returned

to the job of communications maintenance man, back within

the unit.

In April 1968, shortly after Galka’s elevation to foreman,

Galka talked with Don Maddox, Local 399’s chief steward, 2+

the Company's South Garage. Galka told Maddox, “since I was

in management and I wasn’t in the Union any more, that ]

C6

would like to have my union dues stopped,” to which Maddox

replied that he would take care of it. While at no time was

Galka ever given a withdrawal card to sign, within a month or

two after the conversation with Maddox, he stopped receiving

all union literature, including copies of the Electrical Workers’

journal, and had no further contact with Local 399 during the

remainder of the time he was foreman.

In April 1969, shortly after he returned to his communica-

tions maintenance job within the bargaining unit, while Galka

was picking up some equipment in the Switchboard Equipment

Repair Room and conversing with Jim Nalefskin, a building

steward for Local 399, Nalefskin told Galka that he had some

cards for him to sign “in order for me to get my union dues

started again.” Galka replied that that was fine. However,

Galka never received any cards,* nor any further communica-

tion of any kind until 14 months later when, in June 1970,

Maddox approached Galka on the job and told him that he was

in trouble. When Galka asked why, Maddox told him it was

because he owed the Union some back dues. Galka asked

Maddox how he figured that he owed any back dues if he was

not a member. Maddox told him that he automatically was a

member. When Galka asked why he had not received a mem-

bership card or any union materials, Maddox replied that that

was beside the point, that he owed back dues and if he would

sign a payroll deduction card the Union would bill him later foz

the back dues. Galka replied that he would not sign anything

under those circumstances. In leaving, Maddox asked if he

knew what this meant, to which Galka answered that he did

not care what it meant.

By letter dated July 1, 1970, to G. D. Fritz, Company

General Personnel Supervisor, copy to Galka, the Union, citing

2. Contrary to Galka, from whose testimony the quoted testi-

mony is taken, Nalefskin could not recall having any conversation

with Galka at that time. In view of Nalefskin’s mere failure to

recall and the fact that Galka testified with assurance as to the

event, I credit the latter’s testimony.

C7

the fact that Galka had returned to a job under Local 399’s

jurisdiction, asserted that Galka had refused to sign a new

payroll authorization card for deduction of union dues. The

letter also stated that:

Mr. Galka, to become a member in good standing in this

Local Union, must pay all back union dues from February

1969, to August of 1970, or until such time his payroll

deduction of union dues starts.

If Mr. Galka refuses to do this immediately, I am request-

ing I. B. T. Company to enforce the negotiated agreement

between Illinois Bell Telephone Company and Local

Unions 134, 165, 315, 336, and 399, Article III, Union

Security.

Shortly after receiving his copy of this letter, Maddox ap-

proached Gaika ai his desk and asked him if he had received it.

Galka replied that he had and said he would like to talk to him

about the whole thing. The two proceeded to a more private

room, and discussed the matter. Galka told Maddox that he

had no objections to joining the Union. Maddox indicated that

that was not the issue, that under the Union’s Constitution, the

copy of which he showed Galka® he was automatically a mem-

ber and owed the Union “all these back dues that I hadn’t paid,”

dating back to February 1969. Galka again reiterated his feel-

ing that he did not owe any back dues, to which Maddox

replied that Galka’s job was at stake and that he would hate to

see him lose it for $140 of back dues. At some point, Maddox

suggested that in the event that he had a problem in repaying

the amount due, time payments could be arranged.

On July 30, 1970, by letter, Fritz to Delbert Brown, Local

Union President and Business Manager, the Company replied to

3. Maddox referred Galka to Section 4 on Pg. 78, which reads:

Sec. 4. “B. A.” members not employed under the jurisdiction

of the Local Union, for at least a month can be shown as on

honorary withdrawal without actual issuance of the card, unless

the L. U. Bylaws provide otherwise. Officers of the L. U. are

not entitled to withdrawal status without forf~iture of their

office.

C8

the Union to the effect that, in the opinion of the Company’s

legal staff, it would be a violation of the National Labor Rela-

tions Act to discharge Galka at the Union’s request for refusing

to reestablish membership, that to do so would expose both the

Company and the Union to backpay liability, and suggesting

that the Union refer the matter to its counsel.

By letter of September 24, 1970, the Union advised the

Company as follows:

To clarify any possible misunderstanding concerning our

letter of July 1, 1970, Local 399 here’'y requests the dis-

charge of Robert L. Galka, because of his failure to tender

Union dues as required by the Contract Article III, Union

Security.

May we have your reply to this renewed request by

October 2, 1970.

On September 29, 1970, the Company by letter declined to

comply with the Union’s discharge request for reasons set forth

in its earlier reply to the Union.

At some time after July, 1970, having heard that matters

pertaining to him had been discussed at a union meeting, Galka

arranged to meet with Maddox. On this occasion, Galka told

Maddox that he had heard that statements had been attributed

to him at the union meeting which he had not made. Galka

reiterated to Maddox that he had nothing against joining the

Union, and refuted Maddox’s assertion that he had automat-

ically reverted to his union membership. Galka also told Maddox

that he had heard that he (Maddox) had stated at the meeting

that he had given payroll and other cards to Nalefskin, who in

turn, had given them to Group Steward Chuck Beams, and that

Galka had refused to sign them. Galka told Maddox that this

was not true. Galka told Maddox that he also heard, contrary

to the fact, that the Union had agreed to let him pay back just

half the back dues, that such an offer had in fact not been made

to him, and that he would not have paid just half of the asserted

amount in any event. Maddox told Galka that this had been

C9

a union meeting at which “they had a right to air their differ-

ences in different cases, and this is just what they did.” Maddox

followed this with the statement that Galka’s job was at stake

and that he would hate to see him lose it.

About a week later, Galka encountered Beams on the job and

asked him if he ever remembered giving him any cards to sign.

Beams replied that he had not, that “this was all sort of news

to him,” and that he considered Galka an active union member.

On December 3, 1970, Robert Fitzgerald. attorney for Local

399, wrote the following letter to Galka:

Please be advised that I am attorney for Local Union 399,

International Brotherhood of Electrical Workers.

My client informs me that you are delinquent with your

dues to their organization from February, 1969 to the

present date. They inform me further that you have been

a member of the International Brotherhood of Electrical

Workers continuously from March 1960.

Unless you tender an amount of money equal to the dues

owed or make mutually satisfactory arrangements for the

payment thereof by December 11, 1970, I will be forced

to take appropriate action on their behalf.

Upon receiving this letter, Galka called Fritz at his home,

mentioned the letter, and asked for advice as to what he should

do. Fritz told Galka that he would get in touch with the com-

pany attorney in Chicago early Monday and, after talking with

him, that he would be back in touch with Galka. The following

Monday, Galka talked with Fritz and a Mr. Furlong, company

attorney at the time. It was decided in order to protect Galka’s

job that he should pay the Union the amount requested and

also sign a payroll deduction card, but stating on the back

thereof “paid under protest.” When Galka told Furlong and

Fritz that he did not have the $140 in time to meet the dead-

line set by Fitzgerald, Fritz arranged for an employee loan for

Galka for this purpose. A loan was then made to Galka by the

Company on December 8, 1970, in the amount of $142.

C10

On December 10, Galka called Maddox, and requested that

he come on down, that he had a check for him in the amount of

the dues. Maddox met Galka at his desk where Galka gave him

a check for $141.45, writing on the back the words, “paid

under protest.” At this time Galka also signed a payroll deduc-

tion card. Maddox gave Galka a receipt for his check, stating

thereon, “dues from February 1969 through December 1970.”

Analysis and Conclusions

As stated at the outset, the issue presented is whether, under

a maintenance of membership contract, an employee who leaves

the bargaining unit to take a supervisory position with the

employer, and subsequently returns to his former job in the

bargaining unit is compelled to resume his dues obligation to

the Union. The General Counsel and the Company contend

that in April 1968, Galka severed his relationship with the bar-

gaining unit and the Respondent, and that upon returning to the

bargaining unit from a supervisory position in February 1969,

he stood in the same shoes as a new employee and, thus, had an

option of joining or not joining the Union. The General Coun-

se] and the Company assert that, having decided not to join,

Galka was not covered by the maintenance of membership

contract, was, therefore, not subject to discharge for failure to

pay dues, and that Respondent's action taken to collect dues not

owing and to cause Galka’s discharge is violative of Section

8(b)(1)(A) and (2) of the Act.

The Respondent takes the position that, under the Union's

constitution, Galka was automatically placed on honorary with-

drawal status when he left the bargaining unit, and that when he

returned to his job within the unit he became obligated to begin

paying dues again. The Respondent also asserts that Galka

retained his employee status while in management. and there-

fore, under the maintenance of membership provision of the

contract, Galka was obligated to resume his dues obligation.

Thus, the Respondent’s argument is premised upon the assertion

Cll

that, during his period with management, Galka (a) retained

his union membership and (b) continued in the employment of

the Company.

Treating first the argument that Galka retained his member-

ship in the Union during his stint with management, the

Respondent asserts that Galka was automatically placed on

honorary withdrawal status and relies upon Article XXVI, Sec.

3 and 4 of the Union's constitution, which in pertinent part

provides as follows:

Sec. 3. Any member not desiring to maintain his standing,

who retires from the trade or is unemployed, or in such

other cases as may be decided by the L. U., may be issued

an honorary withdrawal card provided dues are paid for the

previous month or the current month if the application is

made after the fifteenth of such month.

Upon returning to the trade, or again becoming employed,

and having complied with this Article, he shall deposit his

withdrawal card in the L. U. that issued it and continue

membership by paying the current month dues. No new

initiation fee is necessary, except that any (A) member

shall pay the $2 fee as required in Article X.

Sec. 4. “B.A.” members not employed under the juris-

diction of the Local Union, for at least a month can be

shown as on honorary withdrawal without actual issuance

of the card, unless the L. U. Bylaws provide otherwise.

Officers of the L. U. are not entitled to withdrawal status

without forfeiture of their office.

Contrary to the Respondent’s position, it would appear that

Section 3, above, is not applicable to Galka, for Galka regis-

tered no such intention or desire to maintain his standing in the

Union and, in fact, apprised the Union’s chief steward in April

1968, that he considered himself out of the Union and wished

his dues stopped. Thus, as Galka did not apply for an honorary

withdrawal card, and was never issued one, the remainder of

Section 3 of the constitution requiring a deposit of such card

and a resumption of membership and dues payment is not

applicable.

C12

As to Section 4, thereof, holding that “B. A.” members can

be shown as on honorary withdrawal without the issuance of a

card, this provision, while perhaps open to contrary construc-

tion, appears to be permissive rather than automatic in appli-

cation. In this regard, it would appear that the Respondent has

the obligation to come forward with evidence to show that Galka

was in fact “shown as on honorary withdrawal” on the Union's

records. This, the Respondent failed to do. I find the Respond-

ent’s argument in this regard to be without merit.

Even were this not the case, over and above these factors, the

Board has made it quite clear that an employee's obligations

under a maintenance of membership or union security provision

are determined by the collective bargaining contract and not by

the Union’s constitution. In Newspaper Guild of Buffalo, et al.,*

involving the discharge of an employee under a union security

provision for failure to pay dues, the Board held that an em-

ployee’s union rights and obligations must be distinguished from

his employment rights and found that an employee’s failure to

resign from the Union in a manner prescribed by the Union’s

constitution did not affect the right to retain his job with the

employer under the union security contract.*

Turning, then, to the Respondent’s argument that Galka,

throughout, retained his employment status with the Company,

while it is true that under the contract for seniority purposes

Galka was credited with his earlier employment within the unit,

the fact is that, upon assuming the supervisory position with

management, Galka severed his employee relationship within

the bargaining unit under the contract. At that point, he re-

moved himself from the status of an employee to that of a

supervisor within management. While, in the strict sense of the

word, it could be argued that Galka continued in the employ of

the Company, certainiy he did so not as an employee.

4. 118 NLRB 1471 at 1473.

5. See Local 899, UAW, 137 NLRB 901; Local 338, Boiler-

makers, 166 NLRB 874; and Yellow Cab Co., 148 NLRB 620.

C13

Moreover, the Board on several occasions has held that em-

ployees who leave their employment under a collective bargain-

ing contract do not have an obligation to automatically resume

the payment of dues under a union security clause upon their

return to work, and that their union membership obligations are

considered severed by their termination of employment. In

Idarado Mining Co.,° the Board was confronted with a very

similar situation where an employee had joined the union under

a maintenance of membership provision, later left the company

for about a year, and then was reemployed. The Board had:

The obligation under the contract to remain a member in

good standing of the contracting union rested on employees.

When Miller severed his employment relationship with the

respondent, his obligation to remain a member in good

standing of the Mine Production Workers ended at the

same time. The obligation’ was not merely suspended,

ready to be imposed at any time in the future that Miller

might be again employed by the respondent. On his re-

employment by the respondent, in a new position and as

a new employee, approximately a year after he had volun-

tarily resigned from the respondent’s employ, Miller’s status

was like that of any other new employee; he was required

to remain a member in good standing of the Mine Produc-

tion Workers only if he voluntarily rejoined that organiza-

tion after his reemployment.

The distinguishing features of /darado is that, there, the employee

left the company and returned to a different job, whereas, here,

Galka became part of management and returned to the same

job. However, the Board in /darado emphasized the fact, pres-

ent here, that there was no indication that the employment ter-

mination was other than bona fide or for the purpose of evading

his obligation to maintain his union membership.

In the Yellow Cab case, supra, involving an employee and

union member who left the company’s employ and was sub-

sequently rehired in the same job, analogizing to the /darado

~ 6. 77 NLRB 392.

C14

case, it was held that the obligation to remain a union member

as a condition of employment “was not merciy suspended” but

ended when the employee terminated his job, and that “. . . the

right of the employee to return and continue to work for his em-

ployer is to be determined as though he never worked for such

an employer on a pervious occasion.”

While giving rise to a different issue, the Board held in Kaiser

Steel Corp.,’ that employees who have left the contract unit

to take supervisory positions with their employer and were

seeking to return to their old jobs within the unit “must be viewed

as applicants for rank-and-file employment who were entitled

to the protection of the Act.”

Applying the above principles to the facts of this case, I find

that when Galka left the bargaining unit in March 1968, to take

a supervisory position with the Company, he did so with a

bona fide intention of not returning, that his obligation to re-

tain membership in the Union under the collective bargaining

agreement ceased as of that time, and that, upon his return to

his job within the bargaining unit in February 1969, he was in

the position of a new employee, with no obligation under the

contract to resume the payment of union dues. Accordingly, I

find that, on September 24, 1970, in requesting the Company to

discharge Robert Galka because of his failure to tender union

dues for which he was not obligated, the Respondent violated Sec-

tion 8(b)(1)(A) and (2) of the Act.

The complaint herein also alleges as violative of Section

8(b)(1)(A) of the Act the alleged threat of Attorney Robert

Fitzgerald contained in his letter of December 3, 1970, to Galka

in which Fitzgerald, identifying himself as attorney for the Union,

stated, “Unless you tender an amount of moncy equal to the dues

owed or make mutually satisfactory arrangements for the pay-

ment thereof by December 11, 1970, I will be forced to take

appropriate action on their behalf.” At the close of the hearing,

7. 125 NLRB 1039.

C15

counsel for Respondent renewed his motion to strike this allega-

tion, on the ground that the reference therein to “appropriate

action” was a reference to legal action to collect the debt owing

the Union and not a threat to discharge.

While the language used by Attorney Fitzgerald is, perhaps,

open to a different interpretation, when following, as it did,

two earlier union requests of the employer to discharge, the

fact remains that this was the first written communique directed

to Galka, that it made specific reference to his asserted union

membership and dues delinquency, and that, as the Union had

theretofore been unsuccessful in its attempt by itself to cause the

Employer to discharge, Galka understandably could have taken

this, as in fact he did, as a follow-up threat to seek his discharge

if he did not pay. Had Attorney Fitzgerald, sophisticated as he

is with union matters under union security contracts, really in-

tended the reference to apply to legal action he could easily

have been more specific in choosing his language.

The Respondent's Motion to Strike, ruling upon which I had

reserved, is hereby denied. I find that the Respondent, by its

agent, Robert Fitzgerald, Jr., unlawfully threatened Robert Galka

with causing his discharge on December 3, 1970, if he failed

to pay union dues for which he was not obligated, and that such

constitutes a violation of Section 8(b)(1)(A) of the Act.

Upon the basis of the above findings of fact and upon the

entire record in this case, I make the following:

Conclusions of Law

1. The Respondent, Local Union 399, International Brother-

hood of Electrical Workers, AFL-CIO, is a labor organization

within the meaning of Section 2(5) of the Act.

2. Illinois Bell Telephone Company is an employer engaged

in commerce within the meaning of Section 2(6) and (7) of

the Act.

3. By attempting to cause Illinois Bell Telephone Company

to discharge Robert L. Galka because he failed to pay union

C16

dues for which he was not obligated, the Respondent has en-

gaged in,and is engaging in, unfair labor practices within the

meaning of Section 8(b)(1)(A) and (2) of the Act.

4. By threatening employees with causing their discharge if

they failed to pay union dues for which they are not obligated,

the Respondent has engaged in, and is engaging in unfair labor

practices within the meaning of Section 8(b)(1)(A) of the Act.

5. By restraining and coercing employees of Illinois Bell

Telephone Company in the exercise of the rights guaranteed by

Section 7 of the Act, the Respondent has engaged in, and is en-

gaging in, unfair labor practices within the meaning of Section

8(b)(1)(A) of the Act.

6. The aforesaid unfair labor practices are unfair labor

practices within the meaning of Section 2(6) and (7) of the

Act.

IV. The Effect Upon Commerce of the

Unfair Labor Practices

The activities of the Respondent set forth in section III, above,

occurring in connection with the operation of Illinois Bell Tele-

phone Company, as set forth in section I, above, have a close,

intimate, and substantial relation to trade, traffic and commerce

among the several states, and tend to lead to labor disputes

burdening and obstructing commerce and the free flow of com-

merce.

Vv. The Remedy

It having been found that the Respondent has engaged in

certain unfair labor practices, it is recommended that it cease

and desist therefrom and that it take certain affirmative action

which is necessary to effectuate the policies of the Act.

It having been found that the Respondent, through its un-

lawful conduct herein, caused Robert Galka to pay union dues

for which he was not obligated and did not owe in the amount

of $141.45, it is recommended that the Respondent be made

to reimburse Galka the sum of $141.45, with interest at 6 per-

C17

cent in accordance with Board policy set forth in Isis Plumbing

& Heating Co., 138 NLRB 716.

In view of the circumstances under which Galka signed a

payroll deduction card on December 10, 1970, including the

threat to cause his discharge if he did not pay back dues and the

fact that such was executed in order to protect his job, it is

recommended that the Respondent cease giving effect to the

checkoff card and causing Illinois Bell Telephone Company to

make dues deductions from Galka’s pay unless, and until, such

time as Galka should, if he desires to, choose to reexecute it. It

is further recommended that the Respondent be made to re-

imburse Galka for all dues collected pursuant to the checkoff

authorization with interest, as above.

Upon the foregoing facts, conclusions of law, and the entire

record, and pursuant to Section 10(c) of the Act, I hereby issue

the following recommended:*

Order

Respondent. Local Union 399, International Brotherhood of

Electrical Workers, AFL-CIO, its officers, agents, and represen-

tatives shall:

1. Cease and desist from:

(a) Attempting to cause Illinois Bell Telephone Company

to discharge Robert Galka because he failed to pay union dues

for which he was not obligated.

(b) Threatening employees with causing their discharge

if they did not pay union dues for which they were not obligated.

8. In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Rela-

tions Board, the findings, conclusions, and recommended Order

herein shall, as provided in Section 102.48 of the Rules and Regu

lations, be adopted by the Board and become its findings, con-

clusions, and Order, and all objections thereto shall be deemed

waived for all purposes.

C18

(c) Restraining and coercing employees of Illinois Bell Tel-

ephone Company in the exercise of the rights guaranteed by

Seciion 7 of the Act.

(d) In any like or related manner, restraining or coercing

employees in the exercise of rights guaranteed in Section 7 of

the Act.

2. Take the following affirmative action which is necessary

to effectuate the policies of the Act:

(a) Reimburse Robert Galka for all union dues collected

since December 10. 1970, with interest. as set forth above in the

section entitled “The Remedy.”

(b) Advise Illinois Bell Telephone Company that no further

dues deduction will be made from the pay of Robert Galka

unless, and until, a new payroll deduction card is executed

by him.

(c) Post in conspicuous places at its office and union hall in

Decatur, Illinois, including all places where notices to its mem-

bers are customarily posted, copies of the notice attached hereto

marked “Appendix.”® Copies of the notice, on forms provided

by the Officer-in-Charge for Sub-Region 38, shall, after being

duly signed by authorized representative of the Respondent, be

posted by it, as aforesaid, immediately upon receipt thereof and

maintained for at least 60 consecutive days thereafter. Reason-

able steps shall be taken by the Respondent to ensure that said

notices are not altered. defaced or covered by any other material.

(d) Promptly, upon receipt of copies of said notice from the

Officer-in-Charge, return to him signed copies for posting by

9. In the event that the Boa d’s Order is enforced by a Judg-

ment of a United States Court -f Appeals, the words in the notice

reading “POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD” shall be changed to read “POSTED PUR-

SUANT TO A JUDGMENT OF THE UNITED STATES COURT

OF APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”

C19

Illinois Bell Telephone Company, it being willing, at the Com-

pany’s Decatur, Illinois, facility.

(e) Notify the Officer-in-Charge for Sub-Region 38, in

writing, within 20 days from the date of receipt of this Decision,

what steps the Respondent has taken to comply herewith.'®

Dated at Washington, D. C.

/s/ WELLINGTON A. GILLIs

Wellington A. Gillis

Trial Examiner

10. In the event that this recommended Order is adopted by the

Board after exceptions have been filed, this provision shall be modi-

fied to read: “Notify the Officer-in-Charge for Sub-Region 38, in

writing, within 20 days from the date of this Order, what steps

the Respondent has taken to comply herewith.”

C20

NOTICE TO MEMBERS

Posted by Order of the National Labor Relations Board

An Agency of the United States Government

WE WILL NOT attempt to cause Illinois Bell Telephone Com-

pany to discharge employees because they failed to pay union

dues for which they are not obligated.

WE WILL NOT threaten employees with causing their dis-

charge for faiiing to pay union dues for which they are not

obligated.

WE WILL NOT restrain or coerce employees of Illinois Bell

Telephone Company in the exercise of their rights guaranteed

by Section 7 of the Act.

WE WILL NOT in any like or related manner restrain or

coerce employees in the exercise of their Section 7 rights.

WE WILL reimburse Robert Galka for all dues unlawfully

collected since December 10, 1970, with interest thereon at 6

percent per annum.

WE WILL advise Illinois Bell Telephone Company that no

further dues deductions will be made from the pay of Robert

Galka until. and unless, said employee executes a new payroll

deduction card.

LocaL UNION 399, INTERNATIONAL BROTHER-

HOOD OF ELECTRICAL WorkKERS. AFL-CIO

(Labor Organization)

_____ SERRE aen EL iD Et pin Te Be ies

(Representative ) (Title)

This Is an Official Notice and Must Not Be Defaced by Anyone

This notice must remain posted for 60 consecutive days from

the date of posting and must not be altered, defaced, or covered

by any other material. Any questions concerning this notice or

compliance with its provisions may be directed to the Board’s

Office, Savings Center Tower 10th Floor, 411 Hamilton Blvd.,

Peoria, Ill. 61602 Telephone (309) 673-9061 X282.

o TY

Di

APPENDIX D

Constitution of International Brotherhood of Electrical Workers

Article XXII, Sections 2 thru 4 provide as follows:

“Sec. 2. Each applicant for membership shall fill out

an application blank furnished or approved by the I. S.,

and answer all questions. The original application or a

copy must be sent to the I. S.

“Sec. 3. The acceptance of an application for member-

ship, and the admission of the applicant into any L. U. of

the 1. B. E. W., constitutes a con: act between the member,

the L. U. and the 1. B. E. W., and between such member

and all other members of the I. B. E. W.

“Sec. 4. Each applicant admitted, shall, in the presence

of members of the I. B. E. W., repeat and sign the follow-

ing obligation:

ep Eee SF

(Give name)

of members of the International Brotherhood of Electrical

Workers, promise and agree to conform to and abide by the

Constitution and laws of the I. B. E. W. and its local

unions. I will further the purposes for which the I. B. E. W.

is instituted. I will bear true allegiance to it and will not

sacrifice its interest in any manner.’ ” (Emphasis supplied.)

Article XXVI provides:

“Sec. 1. Any member who becomes a general manager

or superintendent, or who retires from his trade, may apply

to the F. S. for a withdrawal card. It shall require a

majority vote at a meeting to grant such card. But the

L. U. has the right to require such a member to take out

a withdrawal card if it so decides.

* * * * *

“Sec. 3. Any member not desiring to maintain his

standing, who retires from the trade or is unemployed, or

in such other cases as may be decided by the L. U. may

be issued an honorary withdrawal card provided dues aze

paid for the previous month or the current month if the

application is made after the 15th of such month.

D2

“Upon returning to the trade, or again becoming em-

ployed, and having complied with this article, he shall

deposit his withdrawal card in the L. U. that issued it and

continue membership by paying the current month dues.

No new initiation fee is necessary, except that any “A”

member shall pay the $2 fee as required in Article X.

“Sec. 4. ‘8A’ members not employed under the juris-

diction of the local union, for at least a month can be

shown as on honorary withdrawal without actual issuance

of the card, unless the L. U. bylaws provide otherwise.

Officers of the L. U. are not entitled to withdrawal status

without forfeiture of their office.” (Emphasis supplied.)

El

APPENDIX E

Collective Bargaining Agreement between Illinois Bell Tele-

phone Company and Local 399 I. B. E. W.

Provides in relevant sections as follows:

Article III, Section 2 (Page 5)

“Section 2. All employees with thirty days or more of

employment with the Company who on November 30,

1948, were members or who thereafter become members

of Local Unions 165, 315, 336 or 399 shall maintain their

membership in the Union in good standing as a condition

of employment under this Agreement after June 30, 1968.

Article XXI, section 5, Subparagraph (b), (Pages 27-28)

“(b) A person retransferred from anywhere within the

Company to work covered by this Agreement shall resume

the amount of seniority he had established as of the date

of transfer from work covered by this Agreement plus an

amount equal to Bell System service credited to him during

the period between transfer and retransfer provided, how-

ever, that if the date of transfer from work covered by

this Agreement preceded August 8, 1947, he shall be

credited with seniority equal to his net credited Bell Sys-

tem service.

Exhibit C, Subsection (e) (Page 71)

“(e) Cancellation of Union dues shall be deemed effec-

tive upon (1) written order from employees, (2) transfers

out of bargaining unit, (3) resignation, (4) retirement,

(5) leaving the service of the Company for other reasons,

or (6) death of the employee.” (Emphasis supplied.)

Fl

APPENDIX F

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

NATIONAL LABOR RELATIONS BOARD, }

Petitioner,

ILLINOIS BELL TELEPHONE COMPANY,

Intervenor,

VS. ’ No. 73-1293

Loca, 399, INTERNATIONAL BROTH-

FRHOOD OF ELECTRICAL WORKERS,

AFL-CIO,

Respondent.

A

MOTION TO RECONSIDER DECISION NOT TO ISSUE

PUBLISHED OPINION

To the Honorable, the Judges of the United States Court of

Appeals for the Seventh Circuit:

The National Labor Relations Board, by its Deputy Associate

General Counsel, respectfully moves this Court to reconsider its

decision to issue its ruling in the above case as an unpublished

“order,” rather than a published “opinion.” In support thereof,

the Board shows as follows:

1. On April 17, 1974, the Court enforced an order of the

Board reported at 200 NLRB No. 159. The Court’s 5-page

decision was classified as an “order” not to be published under

Circuit Rule 28.

2. In enforcing the Board’s order, the Court’s decision re-

solved several issues concerning the union-security obligations

of union members who leave bargaining unit jobs for supervisory

positions and later return to unit work as employees subject to

a maintenance of membership clause. Thus, the Court affirmed:

LAL

F2

(1) The Board's application of Section 2(3) and 2(11) to ex-

clude supervisors from bargaining unit “employees” for union-

security purposes; (2) the Board’s /darado Mining (77 NLRB

392) line of cases; and (3) the Board’s factual determinations

with respect to the Union's “honorary withdrawal” status. The

Court also discussed, and found inapposite, the Sixth Circuit's

ruling in N. L. R. B. v. Industrial Towel and Uniform Service,

473 F. 2d 1258 (1973).

3. The issues dealt with in the “order” are plainly not “friv-

olous” or so insubstantial as to require no “explanation of the

reasons for the action taken.” Circuit Rule 28 (Guidelines for

unpublished orders). Rather, the Court has recognized the sub-

stantial questions raised and has provided a full explanation of

its reasons for affirming the Board's findings. On the surface, it

may appear that the Court's decision has significance only for

the parties immediately involved in the case. However, we be-

lieve that it would be of assistance to the labor relations com-

munity to have access to the Court's decision, and to guide their

conduct accordingly. And, the Board is, of course, interested in

disseminating the fact that the Court has approved the Idarado

Mining principle, and has read the Sixth Circuit’s Industrial

Towel decision as not rejecting that principle.

4. For these reasons, the Court’s enforcement ruling does

involve issues “of continuing public interest” and constitutes “a

significant and non-duplicative contribution” to the decisional

law under the National Labor Relations Act, and thus should be

published under Circuit Rule 28 (Guidelines for published

opinions).

Wherefore, the Board respectfully requests that its motion be

granted and that the Couri’s order of enforcement previously

filed be issued as a published opinion.

/s/ ELviotT Moorr

Elliot Moore

Deputy Associate General Counsel

NATIONAL LABOR RELATIONS BOARD

Dated at Washington, D. C. this 6th day of June, 1974.