Local 569, United Packinghouse Workers, Etc.

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 569, United Packinghouse Workers of America, AFL- CIO [Frank Jaworski Sausage Company, Party to the Con- tract] and Mary Dzierzawski. Case No. 7-CB-565. Febru- ary 25, 1960 DECISION AND ORDER On September 28, 1959, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifications noted below.' 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 the Respondent Union, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Entering into, performing, or giving effect to any provision in any agreement, understanding, or practice with Jaworski Sausage Company, which requires membership in Respondent Union as a con- dition of employment, except as authorized by the proviso to Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 'For the reasons set forth in Chun King Sales, Inc, 126 NLRB 851, the Board finds that the effectuation of the policies of the Act does not require the imposition of the Brown-Olds remedy recommended by the Trial Examiner. Member Bean, who dissented from the failure of the Board majority to apply Brown-Olds in Chun King, agrees that Brown-Olds should not be applied in this case. He believes the two cases are dis- tinguishable in important respects-in the present case , unlike Chun King, the evidence shows that, despite the unlawfulness of the union -security clause, all employees were in fact given 30 days in which to join the Union In other words, the unlawful clause was enforced only in a lawful manner. Moreover , in view of the unfair labor practices found herein , we shall also modify the Trial Examiner 's recommended order and require, in substance , that the Respondent cease giving effect to any illegal union -security provi- sion in any agreement, understanding, or practice with Jaworski Sausage Company. 126 NLRB No. 100. LOCAL 569, UNITED PACKINGHOUSE WORKERS, ETC. 871 (b) Causing or attempting to cause Frank Jaworski Sausage Com- pany to discriminate against employees in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (c) Restraining or coercing the employees of Frank Jaworski Sausage Company in their right to engage in, or to refrain from engaging in, any or all of the activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization executed in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business offices in Detroit, Michigan, copies of the notice attached hereto marked "Appendix.'' 2 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the said Respondent immediately upon re- ceipt thereof and be maintained by it for 60 consecutive days there- after in conspicuous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Seventh Region signed copies of the notice attached hereto marked "Appendix" for posting at the premises of Frank Jaworski Sausage Company, its retail stores and markets for 60 consecutive days in places where notices to em- ployees are customarily posted, if the Employer is willing to do so. Copies of said notices, to be furnished by the Regional Director for the Seventh Region shall, after being signed by an authorized repre- sentative of the Respondent Union, be forthwith returned to said Regional Director for such posting. (c) Notify the Regional Director for the Seventh Region, in writ- ing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL OUR MEMBERS AND EMPLOYEES OF FRANK JAWORSKI SAUSAGE COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, we hereby notify our members and the employees of Frank Jaworski Sausage Company that: WE WILL NOT enter into, perform, or give effect to any provi- sion in any agreement, understanding, or practice with Frank Jaworski Sausage Company which requires membership in our Union as a condition of employment, except as authorized by the proviso to Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT cause or attempt to cause Frank Jaworski Sausage Company to discriminate against employees in regard to their hire or tenure of employment, or any term or condition of em- ployment, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE, WILL NOT restrain or coerce the employees of Frank Jaworski Sausage Company in their right to engage in, or to refrain from engaging in, any or all of the activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization executed in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. LOCAL 569, UNITED PACKINGHOUSE WORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act as amended (61 Stat. 136), was heard at Detroit , Michigan, on August 13, 1959, pursuant to due notice and with all parties represented by counsel. The complaint, issued on June 29, 1959, by the General Counsel of the National Labor Relations Board and based on charges duly filed and served, alleged in substance that Respondent had engaged in unfair labor practices proscribed by Section 8(b) (2) and (1 ) (A) of the Act by entering into contracts in July 1956 and July 1958 with the Frank Jaworski Sausage Company (herein called the Company ) which contained illegal union-security provisions (i.e., requiring application for union membership by new employees within 5 days after employment) and, pursuant to said illegal provisions, by causing the Company to make deductions from the wages of employees, and pay to Respondent , union dues, and assessments. Respondent answered , admitting that the contracts contained the alleged illegal provisions but denying their illegality and denying that Respondent had maintained the said provisions in effect Admitting also the deduction of membership dues, Respondent pleaded that the deductions were made pursuant to written authoriza- tions of the employees . Respondent also pleaded that its officers and agents were unaware that the contract provision required union membership after 5 days, that LOCAL 569, UNITED PACKINGHOUSE WORKERS, ETC. 873 they assumed and understood that membership was required only after 30 days of employment, that Respondent and Company acted on the basis of that assumption and understanding, and that the contract would have been subject to judicial reforma- tion on appropriate legal proceedings to conform to the mutual understanding and the practice of the parties. The answer also averred that on March 5, 1959, Re- spondent and Company executed a stipulation by which the provisions under attack were removed from the contract. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS; RESPONDENT AS A LABOR ORGANIZATION I find on stipulated facts and on admissions in the answer that the Company is engaged in commerce within the meaning of the Act (i.e., annual extrastate pur- chases and incoming shipments in excess of $50,000 and annual retail sales in excess of $500,000) and that Respondent is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES Respondent has since about 1951, represented all the salesgirls (numbering from 50 to 60) in the Company's 16-odd retail stores and markets. On September 4, 1956, and on July 31, 1958, Respondent and the Company entered into contracts which gave the Company the unlimited right to hire new employees including pro- bationary employees, provided that within 5 days such employees applied for union membership and provided membership was accepted by the Union. The contracts also provided that upon 2 weeks' notice in writing by the Union, the Company agreed to dispense with the services of any employees covered by the agreement who were not in good standing with the Union, and it provided further that the Company would check off union dues, initiation fees, and assessments on the written authorizations of employees and remit same to the Union. Substantially similar provisions were contained in earlier contracts executed in 1952 and 1954. The union-security clause above plainly exceeded the permissible limits fixed by the provisos to Section 8(a)(3) of the Act, and Respondent must be found to have violated Section 8(b) (2) and (1) (A) by entering into and maintaining the contract, Broderick Wood Products Company, 118 NLRB 38, 53-55; Imperial Wire Company, Inc., 118 NLRB 775, 777; Argo Steel Construction Co., 122 NLRB 1077; New York State Employers Association, Inc., et al., 93 NLRB 127, 128-129, unless the various matters which relies upon constitute a legal defense. Those matters relate mainly to contentions that the union-security provisions did not actually state the actual content of the agreement nor conform to the practice and mutual understand- ing of the parties, which was not to require union membership or to check off union dues earlier than 30 days after employment. Though, as will be seen, the practice was proved to be as pleaded and claimed, there was no evidence that the union-security provisions were mistakenly included in the contract, as in Monolith Portland Cement Company, 94 NLRB 1358, 1361- 1362, nor any that there was any such mutual mistake as would entitle Respondent to reformation in a court of equity. Imperial Wire Company, supra, 118 NLRB at page 777. Indeed, Respondent offered no testimony by any of the signatories to the contract on either side, and none by any of the negotiators on the Company side. In fact, the only testimony concerning the negotiation of the contract was given by Donald Hankins, president of the Local, to the effect that so far as he knew there had been no negotiations concerning the union-security clause during the 7 years of his union membership, but that the old clause was simply brought forward into each new contract without negotiation. As previously noted, the evidence did establish Respondent's claim as to the manner in which the union-security provisions were applied and enforced among the em- ployees. Mary Swiatlowski, bookkeeper for the Company, testified for the General Counsel that she did all the hiring, procured all the checkoff authorizations, and made all the deductions, and that pursuant to company policy and to her under- standing of the contract provisions, her practice was to send out authorization cards for signature only after new employees had served their probationary periods of 30 days. She testified further that the Union in no case requested her to send out authorization cards prior to 30 days of employment. Swiatlowski also testified that after the execution of the contract, which had been drawn up and presented by Respondent for signature, she distributed some 50 to 60 copies, also furnished by Respondent, among the employees in the Com- pany's various stores. The employees were thus put on notice of the existence of 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union-security provisions. Knowledge by Company and Union is more ob- viously to be legally presumed, despite testimony disclaiming awareness, which I discredit and reject as incredible. See N.L.R.B. v. Howell Chevrolet Company, 204 F. 2d 79, 86 (C.A. 9), affd. 346 U.S. 482. Swiatlowski testified further that even after she learned in February 1959, that the 5-day clause was under attack she nevertheless deducted union dues and initia- tion fees for February, March, and April, and remitted to the Union. Indeed, the deduction of the March and April dues was made after a stipulation, entered into on March 5, by which Respondent and Company agreed that the union-shop clause of the contract should become inoperative and of no effect. Swiatlowski testified, however, that she sent out no authorization cards to any employees after March 6, 1959. Both Hankins and John Troutman, Respondent's secretary-treasurer, testified that their understanding of the contract requirement was that employees could be asked to join the Union only after 30 days of employment and that checkoff authoriza- tions similarly would be procured only after 30 days. They testified further that the Union never requested the Company to require union membership earlier than 30 days after employment and never received payment for dues for any periods prior to 30 days of employment. Hankins admitted, however, that copies of the stipulation of March 5 were not furnished to the employees, and that so far as they knew the stipulation never existed. As found above, the evidence failed to bring Respondent's defenses within the holding of the Monolith case, supra. There remains the question whether the mere existence in the contract of the illegal clauses will constitute a violation of the Act where the evidence showed the clause was not utilized or enforced. Of prime importance is the fact that though new employees were supplied with copies of the contract, they were not informed that the illegal clause was not to be used or followed. Broderick Wood Products Company, supra, at p. 54. Indeed, the em- ployees were not so informed even after the parties themselves stipulated that the clauses should become inoperative. The fact is, then, that to this day the contract language stands as a caveat to the employees. Id. Thus the mere execution and maintenance of the clause under such circumstances constituted a violation of Section 8(b) (2) and (1) (A) of the Act. Id., and see Carty Heating Corporation, et al., 117 NLRB 1417, where the Board pointed out that it had "consistently held that the mere inclusion of discriminatory provisions in a contract, whether or not such provisions have been enforced, is also a violation of Section 8(a)(3) and 8(b)(2), as inherent in such discriminatory provisions is the tendency to encourage membership in a union in violation of the Act." [Emphasis supplied.] It is also concluded and found, for the reasons stated in Broderick Wood Products Company, supra, at p. 60, that by causing the Company to check off union dues and fees under the coercive force of the unlawful security clause, Respondent also violated Section 8(b)(2) and (1) (A) of the Act. See also Masters-Lake Success, Inc., 124 NLRB 580. Upon the basis of the above findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. By executing and maintaining a collective-bargaining agreement with Frank Jaworski Sausage Company which contained unlawful union-security provisions and by causing said Company to deduct from the wages of its employees dues and assessments under said contract provisions, Respondent has restrained and coerced employees of said Company in the exercise of their rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 3. By said conduct Respondent also caused and attempted to cause said Company to discriminate against its employees in violation of Section 8(a)(3) of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 4. The aforesaid unfair labor practices having occurred in connection with the operation of the Company's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative `JACKSON'S PARTY SERVICE 875 action of the type conventionally ordered in such cases , which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. See e.g., Broderick Wood Products Company, supra. The General Counsel seeks application of the Brown-Olds remedy, 1. S. Brown- E. F. Olds Plumbing & Heating Corporation ( United Association of Journeymen etc., 115 NLRB 594, i.e., the reimbursement of all dues and fees collected from employees under the illegal clause . Although the evidence showed that no checkoff of dues was made until after 30 days of employment, the Board in Local 138, International Union of Operating Engineers, AFL-CIO, et al. (Nassau and Suffolk Contractors' Association), 123 NLRB 1393, overruled its decisions in Farnsworth and Chambers 122 NLRB 300 and Rochester Davis-Fetch Corporation, 122 NLRB 269, to the extent that those decisions held that proof of actual exaction of moneys from employees under an unlawful contract is required to warrant the remedy of reimbursement, and stated its present rule to be as follows: [T]he existence of an unlawful contract is sufficient in and of itself to estab- lish the element of coercion in the payment of moneys by employees pursuant to the requirements of such a contract . Accordingly, the above remedy is applicable to all closed-shop and exclusive hiring-hall agreements , which do not provide the safeguards set forth in the Mountain Pacific decision (119 NLRB 883, 893 ) whether or not proof of actual exaction of payments is established. As the Board has elsewhere asserted that application of the Brown-Olds remedy "lies within [its] exclusive jurisdiction," Gay Engineering Corporation, 124 NLRB 451, and as it is speculative to predict what considerations of equity and justice may appeal to it (see e.g. Morrison-Knudsen Company , Inc., et al., d/b/a Robinson Bay Lock Constructors, 123 NLRB 12, and the Intermediate Report in that case; and see the Intermediate Report in The Ingalls Steel Construction Co., 126 NLRB 584, I shall recommend the customary Brown-Olds remedy for the period since July 27, 1958. [Recommendations omitted from publication.] James D. Jackson d/b/a Jackson's Party Service and Retail Food Clerks Union, Local 870. Case No. AO-5. February 25, 1960 ADVISORY OPINION A petition has been filed by James D. Jackson, doing business as Jackson's Party Service, herein called the Employer, pursuant to Sec- tion 102.98 of the Board's Rules and Regulations, praying for an ad- visory opinion by the Board as to whether it would assert jurisdiction over the operations of the Employer on the basis of its current juris- dictional standards. It appears from said petition that : 1. The Employer is engaged in the business of "retail sale of inter- state liquors, foods, and tobaccos." His place of business is not given. "In every year involved in the State Court proceeding [described in paragraph 2 herein], [the Employer] has done business in excess of $500,000." 2. Retail Food Clerks Union, Local 870, alleged to be "a corpora- tion," herein called the Union, has brought an action in the Alameda County Superior Court, State of California, which has been docketed as No. 302927. The defendant in said action is not given. Said action is alleged to be "a petition for an order directing that arbitration proceed." 126 NLRB No. 101.