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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 896

## Text

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

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.

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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].

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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.

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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”.

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0281%3A1. Public record. Not legal advice.