Pen and Pencil Workers Union

In the Matter Of PEN AND PENCIL WORKERS UNION, LOCAL 19593, AFL and WILHELMINA BECKER Case No. 13-CB--37.-Decided October 10, 1950 DECISION AND ORDER STATEMENT OF THE CASE Upon a charge filed by Wilhelmina Becker, an individual, herein called Becker, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel and the Board, by the Regional Director of the Thirteenth Region (Chicago, Illinois), issued a complaint dated July 28, 1949, against Pen and Pencil Work- ers Union, Local 19593, AFL, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (2) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and charge were duly served upon the Respondent. On August 12, 1949, the Respondent filed its answer to the complaint denying the commission of the alleged unfair labor practices. There- after, on September 16, 1949, Becker, the General Counsel, and the Respondent executed a stipulation and agreed statement of facts, wherein the parties expressly waived a hearing before a Trial Ex- aminer and an Intermediate Report or proposed findings of fact, and agreed that the stipulation and agreed statement of facts, the ex- hibits attached thereto, and such briefs as the parties should-submit would constitute the entire record in this proceeding. Thereafter, the General Counsel and the Respondent submitted briefs to the Board. The Board 1 has considered the stipulation and agreed statement of facts, the exhibits attached thereto, and the briefs filed, and hereby makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Parker Pen Company, herein called the Employer, is a Wis- consin corporation having its principal, office and place of business in ' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston, Reynolds, and Murdock]. 91 NLRB No. 155. 883 917572-51-vol. 91-57 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Janesville, Wisconsin, where it is engaged in the manufacture of auto- matic pens and pencils. During the year preceding the issuance of the complaint, the Employer purchased raw materials, consisting of plastics, precious metals, and other materials, valued in excess of $1,000,000; more than 50 percent of which was transported in inter- state commerce. During this same period finished products manu- factured by the,Employer, valued in excess of $1,000,000, were trans- ported, sold, and distributed in interstate commerce. The Employer is engaged in commerce within the meaning of the Act. II. THE PARTIES INVOLVED The Respondent is a labor organization admitting to membership employees of the Employer. Becker is a former member of the Respondent formerly employed by the Employer. % III. THE UNFAIR LABOR PRACTICES A. Background events Becker was hired by the Employer on July 11, 1946, and became a member of the Respondent on August 19, 1946. On December 30, 1916, the Employer and the Respondent executed a collective bar- gaining agreement, to expire May 31, 1948; the agreement provided, inter alia, for membership in good standing in the Respondent as a condition of continued employment by the Employer. During March and April 1947, Becker violated an unspecified union rule three times,2 and was fined $25 for each such violation; Becker paid one fine of, $25, but refused to pay the remaining fines, totaling $50. On May 6, 1947, the Respondent requested the Employer to discharge Becker, on the ground that Becker had been expelled from the Respondent 'and' was no longer a member in good standing; pursuant to the request, the Em- ployer discharged Becker.3 On June 2, 1948, the Employer and the Respondent executed a new collective bargaining agreement, to expire May 31, 1949. This con- tract provided, inter alia, for membership in the Respondent after 30 days from the date of employment as a condition of continued em- ployment by the Employer, such provision to become effective upon authorization therefor being granted in an appropriate Board elec- 2 Although the basis upon which such fines were assessed against Becker does not appear in the record , it is clear from the record, and we find, that such fines were not assessed for nonpayment or late payment of dues. 3 The 1946 contract was executed and Becker's original discharge was made before the enactment of the amendments to the Act . The Act, before amendment , permitted more stringent application of union-security contracts than are permitted under the present amended Act. PEN AND PENCIL WORKERS UNION, LOCAL 19593, AFL 885 tion. Such an election was held on July 21, 1948; 4 the Respondent was certified on July 29, 1948, as authorized to execute such an agreement. B. Becker's reemployment and discharge The Employer rehired Becker as a new employee on August 26,1948. The Respondent protested her reemployment. Becker tendered her initiation fee and dues to the Respondent on October. 4, 1948, but was advised by the Respondent's president that she could not become a member of the Respondent in good standing unless she also paid the outstanding 1947 fines totaling $50. She refused to pay such fines whereupon the Respondent rejected her tender of initiation fees and dues. The Respondent then requested the Employer to discharge Becker on the ground that she had failed to pay the outstanding fines, and pursuant to such request the Employer on October 15, 1948, dis- charged Becker. C. The positions of the parties The General Counsel asserts that the fines which Becker refused to pay to the Respondent are not the equivalent of either periodic dues or initiation fees, and that the Respondent caused the Employer. to discharge Becker on October 15, 1948, because she refused to tender tuch fines. The General Counsel contends that the Respondent thereby violated Section 8 (b) (2) of the Act 5 by causing the Employer to discharge Becker on some ground other than Becker's failure to tender the periodic dues and initiation fees uniformly required as a, condition of acquiring or retaining membership in the Respondent. The Respondent admits that it caused the Employer to discharge Becker because she refused to pay the fines previously assessed against her, and that it refused to accept the dues and initiation fees which she had tendered to it. It does not assert that the fines which Becker re- fused to pay are the equivalent of periodic dues or initiation fees -within the meaning of Section 8 (b) (2) ; rather it attempts to jus- tify its conduct on another basis. The Respondent thus states that (a) Becker had lost her status as a union member in 1947, and an im- plied condition of the subsequent contract of June 2, 1948, was that the Employer would not, for that reason, reemploy her; (b) the re- employment of Becker on August 26, 1948, was a violation of the con- tract and an act of bad faith; (c) the Respondent's conduct in causing Case No. 31-UA-318. Section 8 (b) (2) of the Act provides that it shall be an unfair labor practice for a labor organization "to cause . . . an employer . . . to discriminate against an employee with respect to whom membership in such an organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." a 886 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD Becker's second discharge was merely to correct the contract violation which her rehiring involved; (d) under the laws of the State of Wis- consin, collective bargaining agreements are specifically enforceable, and a violation of a collective bargaining contract, such as Becker's rehiring involved, constitutes an unfair labor practice under such laws; and (e) Section 8 (b) (2) of the Act was not intended to apply to action designed to require an Employer to honor a collective bar- gaining agreement, particularly when such action occurred in a State the laws of which evidence a strong policy in favor of, enforcement of collective bargaining agreements. D. ConvlvAions We agree with the General Counsel that the Respondent caused the Employer to discriminate against Becker in violation of Section 8 (b) (2) of the Act." Under the Act, as amended; a union holding a valid union-security contract may lawfully cause an Employer to discharge an employee who has not become a member of that union within the appropriate time where such nonmembership was due to the employee's failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership in the union. In this case, however, Becker's failure to acquire membership in the Respondent and her consequent discharge resulted from her failure to pay the fines. The Respondent does not contend, nor are we able to find, that these fines are included within the terms "periodic dues" or ' "initiation fees," as used in Section 8 (b) (2) .7 We find, accordingly, that Becker was denied membership in the Respondent on some O .Member Murdock joins in this decision because he agrees with his panel colleagues as to all the issues actually considered in the opinion . However, he reserves judgment as to another question not raised or considered in this case. That question , which turns upon the construction of Section 8 (b) (2) of the Act and its relation to Section 8 (a) (3), is whether the employer who actually effected the discriminatory discharge of an employee is not an indispensable party respondent in any case of this type where a union is charged with having violated Section 8 (b) (2) by "causing" the discharge. Cf. J. K. Paterson, 90 NLRB 1851 , where the same point was reserved. 7 The legislative history of the 1947 amendments to the Act fully supports the conclusion that fines generally were not intended to be encompassed within the terms "periodic dues" and "initiation fees ," as used in Section 8 ( b) (2). See , for example , the Report of the Senate Committee on Labor and Public Welfare ( Senate Report No. 105 on S . 1126, 80th Conga, 1st Sess.), in which the committee majority stated that one effect of the proposed amendments would be to protect from discharge employees whose membership in a union was unreasonably or capriciously denied or terminated. Cited by the committee, as an example of the type of situation in which the amendments were intended to protect the employee from discharge , was the case of Cecil B . DeMille, who was expelled from his union, and consequently denied further broadcasting rights , because he refused to pay an assessment. The reference in Section 9 (f) of the Act to assessments and fines, as well as to dues and initiation fees, in contrast to the reference to only dues and initiation fees in Section 8 (b) (2), likewise supports this conclusion . Sutherland , Statutory Construction, 3rd Edition, Sec. 4705. PEN AND PENCIL WORKERS UNION, LOCAL 19593, AFL 887 ground other than her failure to tender the periodic dues and the initiation fees uniformly required by the Respondent as a condition of acquiring or retaining membership therein. We find no merit in the contention of the Respondent that the discharge of Becker is justified because it was designed to remedy an alleged breach of contract. Nothing in the record supports the Re- spondent's assertion that the Employer impliedly had agreed not to reemploy Becker. Moreover, even if the record did support such an assertion, such an agreement, predicated upon Becker's previous loss of membership in the Respondent, would have gone beyond the limited type of union security permitted by the amended Act 8 We likewise find no merit in the Respondent's contentions regarding the applica- bility of Wisconsin law to this case. Except as limited by Section 14 (b) of the Act,9 or as jurisdiction may be ceded pursuant to Section 10 (a) of the Act," the provisions of the Act, rather than Wisconsin law, whatever that law may be, must be applied to this case." Accord- ingly, even assuming that such a contract condition existed, the con- tract would be unlawful despite its alleged enforceability under State law.'? We find, accordingly, that by causing the Employer to dis- charge Becker discriminatorily because she had been denied member- ship in the Respondent on some ground other than her failure to tender the periodic dues and the initiation fees uniformly required by s Amalgamated Meat Cutters and Butcher Workmen of North America (AFL), et at., (The Great Atlantic and Pacific Tea Company ), 81 NLRB 1052 ; see American Export Lines, Inc., 81 NLRB 1370. Section 14 (b) of the Act provides: Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law. 10 Section 10 (a) of the Act provides in part : The Board is empowered . . . to 'prevent any person from engaging in any unfair labor practice . . . affecting commerce . This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise : Provided, That the Board is empowered . . . to cede to such [ State or Territorial ] agency jurisdiction over any cases in any industry (other than . . . manufacturing . . .) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this Act or has received a construction inconsistent therewith. The Board could not in any event cede jurisdiction over this case to Wisconsin , for the reasons that (1 ) the Employer is engaged in the manufacturing industry , and (2) if the law of Wisconsin is as asserted by the Respondent , it would, as applied to the facts in this case , be inconsistent with the provisions of the Act. 11 Combustion Engineering Company, Inc., et at., 86 NLRB 1264 ; The Grace Company, 84 NLRB 435. See also footnote 9, supra. 12 Meson Manufacturing Company , 15 NLRB 295 , 315, enf. 126 F . 2d 810; cf . Plankinton Packing Company v. Wisconsin Employment Relations Board, 338 U., S. 953 ; LaCrosse Telephone Corp .-v.-Wisconsin Fwpwloyment .Relations Board, 336 U.S. 18 ; Bethlehem--Steel Co. v. New York State Labor Relations Board, 330 U. S. 767. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent 'as a condition of acquiring or retaining membership therein, the Respondent has. violated Section 8 (b) (2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth above, occurring in con- nection with the operations of the Employer described in Section I, above, have a close, intimate, and substantial relation to commerce, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Because the Employer is not also a respondent in this , proceeding, this case presents certain novel problems in framing certain of the affirmative portions of the remedy, so as to effectuate the policies of the Act. Where the Board has found that a union and an employer, both named as party respondents, have caused a discriminatory dis- charge, the Board has ordered the employer to offer reinstatement to the discriminatorily discharged employees ,13 and has ordered that the union and the employer be jointly and severally responsible for any back pay due such employees 14 The purpose of the Board's orders in such cases is the same as in cases in which the employer alone was the respondent, namely, to require the respondents respon- sible for the discrimination to remedy such discrimination by restoring such employees , as closely as possible , to the employment and financial status they would have occupied if it had not been for the discrimina- tion, and by restoring the employer's labor force, as closely as possible, to the organizational status which would have been present but for the discrimination. 15 We believe the same purpose and objective should control the fram- ing of our remedy in this proceeding . Because of the absence of the Employer as a party respondent, however, we are to a certain degree limited in the direct remedial action which we can order. As the Employer, who is not a respondent, has sole control over the employ- ment of 'its employees, we cannot order that Becker be reinstated. is Union Starch & Refning Company, 87 NLRB 779; Clara-Val Packing Company, 87 NLRB 703. 14 H. M. Newman, 85 NLRB 725, and cases cited in footnote 12, Supra. 15 See Ford Motor Company, 31 NLRB 994, 1099. PEN AND PENCIL WORKERS UNION , LOCAL 19593 , AFL 889 We can, however, order the Respondent Union to take such action as is . within its power to remove the barrier which it has erected to Becker's employment by the Employer. In order to achieve that objective, and effectuate the policies of the Act, we shall order the Respondent to notify both the Employer and Becker that it has no objection to Becker's immediate reinstatement to her former or a sub- stantially equivalent position 16 as an employee of the Employer, with- out prejudice to her seniority or other rights or privileges. We are also of the opinion, for the reasons stated hereinbefore, that it would effectuate the policies of the Act to require the Respond- ent Union, which we have found is responsible for the discrimination suffered by Becker, to make her whole, as closely as possible, for any loss of pay or other-incidents of the employment relationship she may have suffered by reason of the Respondent's unlawful conduct. There are certain incidents of the employment relationship which cannot be restored by means of a money payment to an employee.17 In this case they include Becker's right as an employee to participate in State and Federal, social security, and other similar benefits to the extent that such right was diminished by reason of the discrimination. In order that such rights may be restored, the necessary deposits must be made with the appropriate State and Federal agencies to the credit of Becker and the Employer.18 If the Employer had been a respond- ent in this proceeding, the making of such deposits, derived from deductions from Becker's wages and taxes upon the Employer, would have been a part of the Employer's liability to make Becker whole. In this case, however, because the Employer is not a respondent, the liability for making such deposits, in the amount which would have been made but for the discrimination, must fall upon the Respondent. The Respondent will have the same right as the Employer would have had, if this liability had fallen upon the Employer, to deduct the amount of the employee contribution from the monies paid to Becker. Accordingly, we shall order the Respondent (1) to pay to 16 The expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then a substantially equivalent position ." See' The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. 17 See, for example, Continental Oil Company v. N. L. R. B., 113 F. 2d 473 , 485 (C. A. 10), In which the court sustained a Board Order requiring the Employer to restore to a rein- stated employee insurance rights lost by virtue of a discriminatory discharge. 18 Although we are ordering the Respondent to make payments to governmental agencies, this is not the kind of payment which was condemned in Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. In the Republic Steel case, the Board ordered the respondent to reimburse the governmental agency for monies paid to discriminatorily discharged employ- ees by such agency for services performed by the employees for the agency. In the present case, however , the purpose of the payment is to make Becker whole ' by restoring to her rights which she would otherwise lose, and not to reimburse such agencies. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Becker a sum of money equal to the amount that she normally would have earned as wages from October 15, 1948, the date of the discrimi- nation, to 5 days after the date on which the Respondent notifies. the Employer and-Becker, in accordance with our Order, that it no longer has objection to her immediate reinstatement," less her net earn- ings 20 during such period, and less such other sums as the Employer, absent the discrimination, would normally have deducted from her wages for deposit with State and Federal agencies on account of social security and other similar benefits, and (2) to pay to the appro- priate State and Federal agencies, to the credit of Becker and the Employer, a sum of money equal to the amount which absent the discrimination, would have been deposited to such credit by the Em- ployer, either as a tax upon the Employer or on account of deductions made from Becker's wages by the Employer, on account of such social security or other similar benefits. Consistent with the Board's recently established policy,", we shall order that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the date of Becker's discharge to the termination of the Respondent's liability, as hereinbefore provided. The quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which Becker would normally have earned for each quarter or portion thereof, her net earnings, if any, in other employ- ment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. We expressly reserve the right to modify the back-pay provisions if made necessary by a change of conditions in the future, and to make such supplements thereto as may become necessary in order to define or clarify their application to a specific set of circumstances not now apparent 22 Upon the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following : 19 Pinkerton's National Detective Agency, Inc., 90 NLRB 205. "By "net earnings" is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the Employer , which would not have been incurred but for .the unfair labor practices and the consequent necessity of her seeking employment elsewhere. See Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Fed- eral, State, county, municipal , or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 21 F. W. Woolworth Company, 90 NLRB 289. 22 Fairmount Creamery Company, 64 NLRB 824; Cf. N. L. R. B. v. New York Merchandise Company, Inc., 134 F. 2d 949 (C. A. 2) ; International Union v. Eagle-Picher Mining and ,9meltim,g Co., 325 U. S. 335. .. PEN AND PENCIL WORKERS UNION, LOCAL 19593 AFL 891 CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the mearning, of Section 2 (6) and (7) of the Act. 2. The Respondent is a labor organization within the .meaning of Section 2 (5) of the Act. 3. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act.. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7), of the Act. ORDER 'Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Pen and Pencil Workers Union, Local 19593, AFL, Janesville, Wisconsin, its officers, representatives, and agents, shall : 1. Cease and desist from causing or attempting to cause The Parker Pen Company, Janesville, Wisconsin, its officers, agents, successors, or assigns, to discharge employees who have tendered initiation fees and the dues uniformly required for the acquisition of membership because they are not members of the Respondent, or in any other man- ner causing or attempting to cause that Company, its officers, agents, successors, or assigns, to discriminate against its employees in viola- tion of Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Immediately notify The Parker Pen Company, Janesville, Wisconsin, and Wilhelmina Becker, at her last known place of resi- dence, that it has no objection to the immediate reinstatement of Wilhelmina Becker to her former or a substantially equivalent posi- tion as an employee of The Parker Pen Company, without prejudice to her seniority or other rights or privileges; (b) Make whole Wilhelmina Becker for any loss of pay or other incidents of the employment relationship she may have suffered be- cause of the discrimination against her, in the manner described in that section of the Decision entitled "The remedy"; (c) Post in conspicuous places in Janesville, Wisconsin, where no- tices to members are customarily posted, copies of the notice attached hereto as Appendix A.23 Copies of said notice, to be furnished by the ss In the event that this Order is enforced by a decree of a'United States Court of Appeals, there shall be inserted before the words "A Decision and Order ," the words "A Decree of the United States Court of Appeals Enforcing." 892 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director of the Thirteenth Region, shall, after being duly signed by official representatives of the Respondent, be posted by the % Respondent immediately upon receipt thereof and maintained by it-for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Mail to the Regional Director for the Thirteenth Region signed copies of the notice attached hereto as Appendix A, for posting, the Employer willing, at the office and place of business of the Employer in Janesville, Wisconsin, in places where notices to employees are cus- tomarily posted. Copies of said notice, to be furnished by the Regional Director of the Thirteenth Region, shall, after being signed as provided in paragraph 2 (c) of this Order, be forthwith returned to the Re- gional Director for such posting; (e) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. APPENDIX A NOTICE To ALL MEMBERS OF PEN AND PENCIL WORKERS UNION, LOCAL 19593, AFL, AND TO ALL EMPLOYEES OF THE PARKER PEN COMPANY, JANES- VILLE, WISCONSIN Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that WE WILL NOT cause or attempt to cause THE PARKER PEN COM- PANY, Janesville, Wisconsin, its officers, agents, successors, or assigns, to discharge employees who have tendered initiation fees and the dues uniformly required for the acquisition of member- ship because they are not members of Pen and Pencil Workers Union, Local 19593, AFL, or in any other manner cause or attempt to cause that company, its officers, agents, successors, or assigns, to discriminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL immediately notify THE PARKER PEN COMPANY, Janesville, Wisconsin, and WILHELMINA BECKER, that Pen and Pencil Workers Union, Local 19593, AFL, has no objection to the' immediate reinstatement of WILHELMINA BECKER to her former : 'or a substantially equivalent position as an employee of TuE PAR- KER PEN COMPANY. PEN AND PENCIL WORKERS UNION, LOCAL 19593, AFL 893 WE WILL make WILT ELMINA BEc1ER whole for any loss of pay she may have suffered because of the discrimination against her. PEN AND PENCIL WORKERS UNION, LOCAL 19595, AFL, Union. By----------------------------------------------------- (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.