Kuner-Empson Co.

67 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. RECOMMENDATION Upon the basis of the above findings of fact and upon the entire record in the proceeding, I therefore recommend that the National Labor Relations Board dismiss the Employer's ob- jection. As provided in the order directing hearing on objection, any party may within ten days from the issuance of this report, file with the Board in Washington, D. C., an original and six copies of exceptions thereto. Immediately upon filing of such exceptions , the party filing the same shall serve a copy thereof upon each of the other parties and the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the hearing- officer. KUNER-EMPSON COMPANY and JULIA SCHMIDT CANNERY WORKERS LOCAL UNION NO. 23260, AFL and JULIA SCHMIDT. Cases Nos. 30-CA-271 and 30-CB-28. August 10, 1953 DECISION AND ORDER Upon charges filed on November 4, 1952, by Julia Schmidt, an individual, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for the Seventeenth Region, issued a consolidated complaint dated March 26, 1953, against Kuner-Empson Company, herein called the Respondent Company, and Cannery Workers' Local Union No. 23260, AFL, herein called the Respondent Union, alleging that the Respond- ents had engaged in and were engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (a) (1) and (3), 8 (b) (1) and (2), and Section 2 (6) and (7) of the Act. Copies of the complaint, the charges, and notice of hear- ing were duly served upon the Respondents and Julia Schmidt. With respect to the unfair labor practices, the complaint alleges in substance that on or about October 31, 1952, the Respondent Company discharged Julia Schmidt at the request of the Respondent Union because she had refused to tender her initiation fee and the current month's dues, as was required by and in conformity with the labor agreement . On April 8, 1953, the Respondents filed separate answers alleging that the discharge was valid. The Respondents and the General Counsel also filed briefs. Thereafter, desiring to avoid the need for a hearing, all the parties entered into a stipulation, which set forth an agreed statement of facts. The stipulation provides that: (1) The parties have waived their right to a hearing before a Trial Examiner and to the preparation and filing of Intermediate Report; (2) the parties reserve their right to file briefs and argue orally before the Board should oral argument be deemed desirable by the Board; (3) the Board may issue a Decision and Order based upon the stipulation and the record described in the stipulation; and (4) the charges; the affidavits of service of the charges; the complaint; the order consolidating the cases and notice of hearing; affidavit of service of order 106 NLRB No. 116. KUNER-EMPSON COMPANY 671 consolidating cases, notice of hearing and complaint; the answers of the Respondent Company and of the Respondent Union, and the stipulation shall constitute the entire record in this case and may be filed with the Board in Washington, D. C. The stipulation has been accepted and made part of the record herein, and, in accordance with Section 102.45 of National Labor Relations Board Rules and Regulations, Series 6, the proceeding is hereby transferred to, and continued before the Board. Upon the basis of the aforesaid stipulation and the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Kuner-Empson Company is a Colorado corporation engaged in canning perishable and seasonal fresh fruits and vegetables, pickles, and condiments. It operates 7 processing plants within the State, including 1 at Brighton, Colorado, which is involved in this case. The Company's annual sales total more than $5,000,000, of which 50 percent or more are sold to customers outside the State. The Respondent admits, and we find, that it is engaged in commerce within the meaning of the Act. IL THE ORGANIZATIONS INVOLVED Respondent Union and United Packinghouse Workers of America, CIO, herein called the Packinghouse Workers, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The stipulated facts are relatively simple. About May 1950, the Respondents executed a 2-year contract containing a valid union-security clause. Julia Schmidt, the charging party, joined the Union in February 1951, paying the $2 initiation fee required by the Union's constitution and bylaws of all appli- cants for membership, and paid dues until September 1951, when she was duly expelled from the Union for "disloyalty evidenced by dual unionism."' In May 1952, the Union and the Company negotiated a new contract, effective by its terms 'In July 1951, Julia Schmidt began working openly against the Union, attempting to organize for the United Packinghouse Workers of America, CIO, which filed a representation petition in August 1951. The Board dismissed this petition on December 29, 1951, finding the contract to be a bar. The Packinghouse Workers filed a second petition in February 1952. On April 10, 1952, following a consent election, the Respondent Union was certified as the exclusive bargaining representative of all employees in the unit. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from January 1, 1952 , to January 1, 1953, which again con- tained a valid union-security clause. In July 1952 , more than 30 days after the execution of the 1952 contract , the Union asked Julia Schmidt to join the Union . About October 18, 1952, she was notified in writing that she had , under the terms of the contract , to join the Union and that she could do so by paying the regular $ 2 initiation fee, in accordance with the require- ments of the constitution and bylaws ,2 and the current month's dues. a Julia Schmidt offered to pay monthly dues but refused to pay the initiation fee. Shortly thereafter , the Union requested the Company to discharge her for failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring membership therein. On October 31 , 1952, the Company (knowing that she had solely refused to tender a second initiation fee) discharged her for the reason stated in the Union ' s request. B. Contentions of the parties The parties agree that the Act would have been violated had Schmidt been discharged for nonmembership in the Union, as required by a valid union-security provision , because she had been expelled for dual unionism and her membership , there- fore, "terminated " on some ground other than can be made a basis of a discharge for nonmembership. The General Counsel contends that the second initiation fee constituted a fine for the offense which led to her expulsion because Schmidt would not have been required to pay a second initiation fee but for the fact that she had been expelled from membership for reasons which would not have justified her discharge for nonmembership , and that her discharge was therefore illegal. The Respondent Union argues that the facts fail to establish any discrimination against Schmidt for her past union activi- ties . It had a right to expell her for dual unionism and had done so. Thereafter she was a nonmember who was given a "free ride" for the remainder of the term of the contract in effect when she was expelled . When , more than a year later, the Union "decided that it no longer wished to exclude her," she was invited to return to membership upon the same terms and conditions available to any other candidate for member- ship . These terms did not relate in anyway to her past mem- bership or conduct as a member.4 The Union's request for 2 These provide that all applications for membership shall be accompanied by an initiation fee of $2 but that members who have been expelled from the Union for failure to pay fines, assessments, and dues over 3 months must pay a $ 5 reinstatement fee. SJames Rosenbrock , one of the employees who had been expelled from membership at the same time as Julia Schmidt, and for the same reason , was also requested to rejoin the Union by paying the regular initiation fee and the current month's dues. He did so, and was accepted into full membership. _ 4Citing Kaiser Aluminum & Chemical Corporation, et al ., 98 NLRB 753; cf. Food Machinery and Chemical Corporation, et al., 99 NLRB 1430. KUNER-EMPSON COMPANY 673 Schmidt's discharge was, therefore, in no way related to her 1951 expulsion and was based solely on the fact that she re- fused to tender the standard initiation fee required of all appli- cants--whether they were former members or first-time applicants.5 The Respondent Company argues that anew contract initiates new rights and duties among the Union , the Company , and em- ployees within the bargaining unit so that Schmidt was then a ..new employee " for the purpose of complying with the union- shop provision and required to tender the regular initiation fee and monthly dues in order to remain employed.6 The Company also asserts that it had , in any event , no reason to believe that Schmidt was denied membership for any reason other than her failure to tender the initiation fee uniformly required as a condition of acquiring membership. C. Conclusion The issues arising from Schmidt's discharge , as framed by the pleadings and the contentions of the parties , are based upon those provisions of Section 8 (a) (3) and 8 (b) (2) which ban discrimination against an employee subject to a union-shop contract if his "membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership ." ( Emphasis added.) In the case before us , an employee , expelled from member- ship in a labor organization on charges of dual unionism at a time when that organization held a union-shop 'contract with the employer , was discharged 14 months later for failure to comply with the union - security provisions of a succeeding contract between the employer and the labor organization. In determining the rights and obligations of expelled mem- bers under circumstances such as these, we take the view that expelled members are not in a privileged class perpet- ually immune from union - security provisions and from any obligation of tendering dues and that they cannot remain in that privileged category despite successive contracts which would otherwise impose new conditions of employment upon them in that regard . We therefore find that expelled members are subject to valid union - security provisions in existing con- tracts to which the union from which they were expelled is a party. To hold otherwise would be to contravene the clearly expressed intent of Congress to protect labor organizations by 5Citing North American Refractories Company, 100 NLRB 1151. 6Citing Westinghouse Electric Corp. (Sunnyvale Plant), 96NLRB522 ; Pen & Pencil Workers Union, etc., 91 NLRB 883. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permissive provisos against "free riders" and to permit them to maintain discipline in the ranks.' It is with this in mind that we consider the next question, i.e., whether it was necessary for Schmidt to tender a second initiation fee as well as dues to comply with the 1952 union- security provisions. The General Counsel's contention that the union cannot exact a second initiation fee without thereby im- posing a fine for dual unionism is not supported by the legis- lative history or by Board decisions. The legislative history shows that Congress recognized "the right of the union to maintain discipline in the ranks, and to expel members who are disloyal to the union or who act in ways that bring it into disrepute." 8 Schmidt was expelled according to union rules governing the retention of membership. We find no warrant for the Board to hold that she was, despite her expulsion, nevertheless a member, under the sole obligation of tendering periodic dues in order to comply with the union-security pro- visions. As a nonmember she was protected, of course, against discharge for nonmembership if membership was not available to her on the same terms and conditions generally applicable. Here, however, there is no evidence that the Union's purpose in requesting her discharge in October 1952 was for any rea- son other than her failure to tender the initiation fee uniformly required by the Respondent Union as a condition of member- ship therein. This conclusion is supported not only by the fact that the Union indicated its willingness to accept her as a member upon her payment of the regular initiation fee and dues but also by the fact that it had admitted as a member another employee who had been expelled for the same infrac- tion at the ' same time as Schmidt upon his payment of such monies.9 Under these circumstances, there was no discrimi- nation in the requirement that Schmidt pay a second initiation fee. Accordingly, we find that neither the Respondent Employer nor the Respondent Union violated, respectively, Section 8 (a) (3) and 8 (a) (1) or Section 8 (b) (2) and 8 (b) (1) (A) of the Act in effecting the discharge of Schmidt pursuant to their union- security agreement . We shall therefore dismiss the complaint in its entirety. [The Board dismissed the complaint.] [Chairman Farmer and Member Styles took no part in the consideration of the above Decision and Order.] ''See Union Starch & Refining Company, 87 NLRB 779, enfd. 186 F. 2d 1008 (C. A. 7), cert. den. 341 U. S. 815, for a full discussion of these factors. 8 H. Rep. N. 245 on H.R. 3020, 80th Cong. 1st Sess., 1947, p. 7; Sen. Rep. No. 105, ibid., 7. See also statements of the proponents of the Act in debate, 93 Cong Rec. A3141, 4317-8, 4401. See also the proviso to Section 8 (b) (1) (A). 9See Kaiser Aluminum & Chemical Corporation, et al., 98 NLRB 753. Cf. e. g. Westing- house Electric Corporation (Sunnyvale Plant), et al., 96 NLRB 522.