TV & Radio Broadcasting Studio Employees, No. 804

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Television and Radio Broadcasting Studio Employees , Local 804 and Radio and Television Division of Triangle Publications, Inc., Radio Station WFIL, WFIL-AM and FM and WFIL-TV. Case No. 4-CB-655. January 29, 1962 DECISION AND ORDER On August 21, 1961, Trial Examiner Louis Plost issued his.Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter the General Counsel and the Charging Party filed excep- tions to the Intermediate Report, together with supporting briefs, and the Respondent filed a brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed.. The rulings are hereby affirmed.' The Board has considered the Intermediate Re- port, the exceptions and the briefs, and the entire record in this case and finds merit in the exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent they are consistent with the decision herein. The Trial Examiner, in recommending dismissal of the complaint, stated : The Trial Examiner being of the opinion that the complaint herein does not disclose a cause of action, being based on a charge improperly filed, deems it unnecessary to evaluate the various contracts introduced en masse as support of the General Coun- sel's contention, or to analyze the Union's financial statements, as this phase of the case is not reached. The Trial Examiner's recommendation, as we understand it, rests on the narrow ground that since Section 8 (b) (5) was intended to protect a specified category of employees against discriminatory or excessive initiation fees, an employer is not permitted, by filing a charge, to seek to prevent violations of the section. We cannot agree. Section 10 (b) of the Act imposes no such restriction and Section 102.9 of the Board's Rules and Regulations, Series 8, provides that "A charge that any person has engaged in or is engaging in unfair labor practices affecting commerce may be made by any person." [Emphasis supplied.] The Board has not seen fit to qualify or limit the broad scope of that rule, designed to provide full implementation to the prevention of unfair labor practices. The Board's interpretation has been confirmed by the 'In view of our decision herein the Board finds it unnecessary to pass upon the Charging Party's exceptions to rulings of the Trial Examiner restricting the Charging Party's participation in the hearing. 135 NLRB No. 64. TV & RADIO BROADCASTING STUDIO EMPLOYEES, NO. 804 633 Supreme Court of the United States. In N.L.R.B. v. Indiana & Michi- gan Electric Company, 318 U.S. 9, 17-18, the Court said: The Act requires a charge before the Board may issue a complaint, but omits any requirement that the charge be filed by a labor or- ganization or an employee. In the legislative hearings Senator Wagner, sponsor of the bill, strongly objected to a limitation on the classes of persons who could lodge complaints with the Board. He said it was often not prudent for the workman himself to make a complaint against his employer, and that stranger(s) to the labor contract were therefore permitted to make the charge. The charge is not proof. It merely sets in motion the machinery of an inquiry. When a Board complaint issues, the question is only the, truth of its allegations. The charge does not even serve the pur- pose of a pleading. Dubious character, evil or unlawful motives, or bad faith of the informer cannot deprive the Board of its jurisdiction to conduct the inquiry. It might also be noted that in two previous cases we have ordered remedies for violations of Section 8(b) (5) where the charges had been filed by employers.2 The Intermediate Report also indicates that the Trial Examiner considered the issue raised by the charge and amended charge to be moot since the complaint did not issue until after the expiration of the contract between the parties.' To the extent that reliance was placed on the fact that there was no contractual relationship between the par- ties either when complaint issued or at the time of the hearing we find the Trial Examiner in error. There is no evidence in this record from which we may conclude that the Respondent was not the bargaining agent of the employees in the contractual unit or that a new contract might not be executed at anytime. Regardless, we have held, that the more discontinuance of an unfair labor practice will not render charges moot and the Board will issue an order.to prevent recurrence.' Turning to the exceptions, while the General Counsel contends that the union-security clause is technically unlawful and that the Re- spondent has violated Section 8(b) (1) (A) by executing and main- taining in effect said contract, the General Counsel also asserts that the contract is sufficiently lawful to qualify as a contract "authorized" by Section 8 (a) (3), thereby sustaining a violation of Section-8 (b) (5). The clause reads : - • - 'Motion Picture Screen Cartoonists, Local 839, I.A.T.S:E. (Animated Film Producers Association, et al.), 121 NLRB 1196 ; Local 611, International Brotherhood of-Teamsters, Chauffeurs, Warehousemen & Helpers of America (St. Louis Bakery Employees Labor Counoal), 125 NLRB 1392. s The contract expired March 27, 1961 ; complaint issued April 27, 1961 . The charge was filed December 19, 1960, and amended April 13, 1961. 4lnsurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, footnote 3, set aside on other grounds 260 F. 2d 736 (C.A.D C.), affd. 361 U.S. 477. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The party of the first part agrees to maintain a Union Shop, re- quiring that all present, employees . . . shall become members of the Union and all future employees must become members of the Union within a period of thirty (30) days after employment, and that all employees will continue their membership in the Union during the term of this agreement. If any employee (with the exceptions noted in this Article) does not remain a member in good standing with the Union, as provided in the Labor- Management Relations Act, the party of the first part agrees that it will require the employee to come into good standing with the Union or to be forthwith dismissed from employment. The Respondent Union agrees with the General Counsel that the clause is unlawful but argues that it cannot then find the necessary authorization of Section 8 (a) (3). The Charging Party urges the full legality of the contract, both in language and operation.-' In support of their contention of illegality both the General Coun- sel and Respondent cite the Board's decision in Chun King Sales, Inc.,' a case which the Charging Party finds distinguishable on its facts. The union-security clause in that case provided : All employees, except those exempt in Paragraph A, hereinafter classified who, at the date of the signing of this contract, have been continuously in the employ of the Employer for thirty (30) days or more shall be members in good standing while so em- ployed, and all new employees in such classification shall become members of the Union within thirty days from the date of their employment, and in the event any employee becomes delinquent in dues, the employer shall be given a three (3) day notice thereof. The Board found the above clause illegal on three grounds. First, that it failed to provide a full 30-day period before new employees were required to become members of the union. Second, that in prac- tice the new employees were not given a full 30-day period before they were required to join. Third, that old employees were not given a 30- day period after execution of the contract in which to obtain membership. The only ground of illegality urged here is that the contract herein, like that in Chun King, did not expressly grant nonmember em- ployees covered by the contract 30 days in which to become members. It must be noted, however, that the language herein is not the lan- guage of Chun King. The contract here appears to require that all present employees "shall become members of the Union" without fix- 5 The General Counsel concedes that the contract was lawfully administered by the parties. 6126 NLRB 851. TV & RADIO BROADCASTING STUDIO EMPLOYEES, NO. 804 635 ing a limitation in time. Chun, King required that "they shall be members in good standing while so employed." The distinction is between an immediate requirement of membership and one at some unspecified time in the future. Even were it urged that the present clause suffers from ambiguity, we will not in this case resolve that ambiguity contrary to the intent of the parties as manifested by their own lawful construction and administration of the contract' Semantic precision is desirable in any contract, but as the Supreme Court has said, "Substantive rights and duties in the field of labor- management do not depend on verbal ritual reminiscent of medieval real property law." 8 Assuming, arguendo, that the clause is techni- cally deficient for lack of specificity as to old nonmembers, such de- ficiency would not require a holding that the entire clause is invalid.' In this case, as in Whyte Manufacturing Company, Inc.,` the illegal- ity, if such there is, would attach only to the transitional period, i.e., that period when the contract became effective. ' Since it is not dis- puted that the contractual relationship continued from 1948 until the execution of the last contract on June 17, 1959, we cannot infer that any nonmembers were employed on that date nor is it alleged that any were. Under these circumstances we find the union-security clause herein valid "as an agreement authorized under subsection (a) (3)" within the meaning of Section 8(b) (5).'i We now turn to the question of the excessive or discriminatory nature of the initiation fee required by Respondent, a question the Trial Examiner did not reach. From 1953 until November 1957, the initiation fee charged by Respondent was $50. At that time the fee was increased to $500 with payments prorated over a 3-month period. At the same time, however, new members of newly organized radio and television stations (new bargaining units) were required to pay a fee of only $25. When the Employer protested the new fee for its new nonmember employees the Union agreed to permit a down- payment of $50, followed by monthly payments of $25 for each month 7 We do not agree with our dissenting colleague that the clause herein is unlawful be- cause it requires new employees to become members "within" 30 days after employment. See New York State Electric and Gas Corporation , 135 NLRB 357 . Nor are we per- suaded by his reference to Respondent 's "admission" of illegality ; such an "admission" is hardly probative in view of Respondent 's related contention that any illegality in its union-security clause relieves it of the alleged violation of Section 8(b) (5). &s indicated elsewhere herein, we do not find it necessary to pass on this contention 8 N.L.R.B v. Rockaway News Supply Company , Inc, 345 U S . 71. See also N L R B. v. United Electrical, Radio and Machine Workers of America, Local 622 (UN) (Stupako/f Chemical & Manufacturing Cc ), setting aside 98 NLRB 664. 9Id. 10 109 NLRB 1125. 11 Our decision herein is not to be taken as deciding that Section 8(b) (5) does not apply to union-security contracts which may be illegal under Section 8(a) (3) The contention of the General Counsel, set forth in his brief and exceptions but not specifically alleged in the complaint , that the union-security clause was unlawful and in violation of Section 8(b) (1) (A ) Is rejected. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked by the- new employee. In November 1960, 'the Union again changed the method of payment to require $300 as initial payment and two, consecutive monthly payments of $100. In reaching decision under Section 8(b) (5) the Board is directed by,the subsection to consider, "among other relevant factors, the prac- tices and customs of, labor organizations in the particular industry, and the wages currently paid to the employees affected." Among "other relevant factors" we must consider the amount of increase when the change was effected and the reasons, so far as they are dis- closed by the record, for making the increase. An increase in initia- tion fees from $50' to $500 is not insubstantial and, to one seeking employment in the industry, may well be so staggering as to preclude acceptance of employment. Such an increase demands explanation to bar a presumption that it is not at least excessive. The explana- tion which is forthcoming from this record lies in a dispute between the parties as to hiring practices. The Employer admittedly, in 1957, had a practice of hiring both part-time and temporary em- ployees in the unit covered by the agreement. The Union objected to this practice on the ground that it lessened the opportunities of its members for full-time employment. It was directly as a result of failure to reach agreement on this aspect of the hiring policy that the increase was effected and the record, despite Respondent's arguments, supports no other conclusion. As a direct result nonmembers who sought employment and were offered it on a part-time basis were dis- couraged from accepting such employment by the size of the fee. This is a simple economic fact of life, clearly foreseeable and intended by the Union. Union members on the other hand were confronted by no such financial obstacle. Further evidence of the discriminatory impact of the increase in the fee lies in the Union's continuance of its. practice of making membership available to new employees in newly organized units at $25, evidence which negates any argument that the $500 fee was necessary to preserve the Union's solvency. From these facts we can only conclude that the increase in fee was designed for the purpose of restraining the Employer in the hiring of part-time employees who were not union members, or to end the practice, there- by restricting employment to full-time union members. We accord- ingly find the objective served by the tenfold increase in initiation fees rendered them discriminatory within the meaning of the Act.12 We likewise find the fees excessive under the circumstances of this case. In making this finding we have considered that new employees hired by the Employer in the classifications covered by the contract had a starting salary ranging from $90 to $95 per week; 13 that part- 12 Mot,on Picture Screen Cartoonists, Local 839, I.A T.S E. ( Animated Film Producers Association, et at ), supra 13 We consider the starting wages or salary of greater significance in evaluating the initiation fee than wages or salaries that may later be earned, although we concede rele- TV & RADIO BROADCASTING STUDIO EMPLOYEES, NO. 804 637 time employees had no guarantee of such earnings and that temporary employees had no guarantee of continued employment (all new em- ployees had a 90-day probationary period during which they were required to make payments on their initiation fees) ; that no other union in the Philadelphia area representing technicians and crewmen charged comparable fees (the next highest fee was $150, charged by National Association of Broadcast Employees and Technicians) ; and the fact that the increase in fees for employees of the Employer herein effected in November 1957 was tenfold. All of these considerations lead to the conclusion that the $500 initiation fee was excessive as well as discriminatory.14 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Television and Radio Broadcasting Studio Employees, Local 804, its officers, agents, repre- sentatives, successors, and assigns, shall : , 1. Cease and desist from requiring the sum of $500 as a price of initiation .from employees of the Employer working in the classifica- tions covered by any bargaining agreement between the Respondent and the Employer requiring membership in the Respondent as a con- dition of employment, or requiring any other sum which is excessive or discriminatory under the circumstances for initiation. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Pay to all employees of the Employer working in classifications covered by any collective-bargaining agreement requiring membership in Respondent as a condition of employment all sums in excess of $50 paid Respondent toward the $500 initiation fee on or since June 19, 1960. (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all records pertinent to or con- venient for a determination of the amounts so paid. (c) Post at its office, copies of the notice attached hereto marked "Appendix." 15 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by Respondent, be posted by, Respondent immediately upon receipt vancy to the latter. We do not, therefore , find the fact that skilled technicians' may earn as much as $200 establishes that the fee is not excessive is The evidence offered by the Respondent in support of its claim that the initiation fee was required to insure enough income to enable it to operate falls short of such sup- port In any event we find that the Union 's financial problems may not be solved by imposition of a fee which is either discriminatory or excessive under Section 8(b) (5). is In 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." 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereof, and be-maintained for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or cov- ered by any other material. (d) Sign and mail sufficient copies of said notice to the Regional Director for thelFourth Region, for posting, the Employer willing, at all locations within the territorial jurisdiction of Respondent where notices to individuals employed by the Employer are customarily posted. (e) Notify the Regional Director for the Fourth Region, in writ- ing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. MEMBER RODGERS dissenting in part : The Respondent's contract has the following union-security provisions : The party of the first part agrees to maintain a Union Shop, re- quiring that all present employees . . . shall become members of the Union and all future employees must become members of the Union within a period of thirty (30) days after employment, and, that all employees will continue their membership in the Union during the term of this agreement. If any employee (with the exceptions noted in this Article) does not remain a mem- ber in good standing with the Union, as provided in the Labor- Management Relations Act, the party of the first part agrees that it will require the employee to come into good standing with the Union or to be forthwith dismissed from employment. By its plain language this clause not only fails to give old employees the statutory 30-day grace period before being required to join the Union, but it also requires new employees to become members "within" 30 days after employment. This clause therefore clearly exceeds the permissive limits of the proviso to Section 8(a) (3) of the Act, and I disagree with my colleagues' finding to the contrary. I might note, parenthetically, that my colleagues' decision must come as somewhat of a surprise or bonus, to Respondent. For the Respondent is more realistic about the invalidity of the clause than are my colleagues, and readily admits that its clause is unlawful. Although I would find that the union-security clause in unlawful, I would 'also find that the clause cannot serve the Respondent as a defense to its violation of Section 8(b) (5). I find no merit to the Respondent's contention that Section 8(b) (5) applies only where an employer and union have entered into a union-security agreement fully conforming to the limits of Section 8(a) (3). While Section TV & RADIO BROADCASTING STUDIO EMPLOYEES, NO. 804 639 8(b) (5) does refer to agreements "authorized under subsection (a) (3)," this section , in my view, is just as applicable to those instances where, as here, the parties under color of authority granted by Sec- tion 8 (a) (3) have entered into an unlawful compulsory union membership agreement as it is to instances of agreement with a valid union-security provision. To hold otherwise is to hold that a union must be in compliance with Section 8 (a) (3) in order to violate Sec- tion 8(b) (5). Such construction runs contrary to the legislative purpose of Section 8(b) (5). MEMBER LEEDOM took no part in the consideration of the above De- cision and Order. APPENDIX NOTICE TO ALL MEMBERS OF TELEVISION AND RADIO BROADCASTING STUDIO EMPLOYEES, LOCAL 804 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 require of employees working for Radio and Tele- vision Division of Triangle Publications , Inc., Radio Station WFIL, WFIL-AM and FM and WFIL-TV, in a unit covered by a collective-bargaining agreement requiring membership in our organization as a condition of employment, the payment of an initiation fee in the amount of $500. WE WILL NOT require of any such employees the payment of any initiation fee which is excessive or discriminatory under all the circumstances. WE WILL refund to all such employees any amounts in excess of $50 paid to us as initiation fees or toward initiation fees on or since June 19, 1960. TELEVISION AND RADIO BROADCASTING STUDIO EMPLOYEES , LOCAL 804, 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. Employees may communicate directly with the Board's Regional Office (1700 Bankers Securities Building, Walnut & Juniper Streets, Philadelphia 7, Pennsylvania; Telephone Number, Pennypacker 5-2612) if they have any question concerning this notice or compliance with its provisions. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE It having been charged on December 16, 1960, and amended April 13 , 1961, by Radio and Television Division of Triangle Publications , Inc., Radio Station WELL, WFIL-AM and FM and WFIL-TV (herein called Employer), that Television and Radio Broadcasting Studio Employees , Local 804 (hereiin called Local 804), has engaged in and is engaging in certain unfair labor practices affecting commerce as set forth and defined in the National Labor Relations Act, as amended , 29 U.S.C. Section 151 , et seq. (herein called the Act), the General Counsel of the National Labor Relations Board (herein called the Board), by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), pursuant to Section 10(b) of the Act and the Board's Rules and Regulations, Series 8, Section 102 .15, issued a complaint and notice of hearing on April 27, 1961, and alleged that Local 804 had engaged in and was engaging in conduct violative of Sections 8 (b) (1) (A) and (5) and 2(6) and (7 ) of the Act.' A copy of the charge and the amended charge were served on Local 804 by registered mail on December 19, 1960, and April 14, 1961 , respectively. With respect to the alleged unfair labor practices, the complaint alleged in sub- stance that Local 804 was under a collective -bargaining agreement with the Employer (the Charging Party) relating to the terms and conditions of employment of certain of the employees of the Employer in its Philadelphia radio and television station, which contract by its terms expired March 17, 1961,2 and further that: From on or about June 20, 1960, and continuing to date , Respondent did require all employees covered by the collective bargaining agreement described above, to pay, as a.condition precedent to becoming a member of Respondent, the fee of $500, which fee is excessive, under all the circumstances, including among other relevant factors, the practices and customs of labor organizations repre- senting employees in the particular industry in which employees of Triangle Division are engaged, and the wages paid to the said employees by Triangle Division. On May 8, 1961, Local 804 ,filed an answer denying that its initiation fee as charged was such as to constitute an unfair labor practice by its collection. Pursuant to notice, a hearing was held before the duly designated Trial Examiner at Philadelphia, Pennsylvania, on June 7 to 12, 1961 , inclusive. All the parties represented by counsel (herein referred to in the names of their principals) par- ticipated in the hearing and were given full opportunity to be heard, to examine and ^ cross-examine witnesses, to introduce evidence, to argue orally , and-to file briefs and proposed findings of fact and/or conclusions of law with the Trial Examiner, a date being set for such filing.3 A brief was received from Local 804 on July 31, 1961 , and from the General Counsel and also from the Employer on August 14. No oral arguments were presented. 1 The pertinent portions of the Act alleged to have been violated read: (b) It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaran- teed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein ; s s r • + s • - (5) to require of employees covered by an agreement authorized under sub- section (a) (3) the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances. In making such a finding, the Board shall consider,. among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected ; . . . . 'As herein found the complaint was issued April 27, 1961. s On request of counsel for Local 804, the Chief Trial Examiner, on July 7, extended time for filing briefs from July 17 to July 21, and on July 12 on a further request ex- tended the time to July 31. On request of the General Counsel, on July 28 time to file briefs was extended to August 14 by the Chief Trial Examiner. On July 31, the office of the Chief Trial Examiner refused a further extension requested by the General Counsel TV & RADIO BROADCASTING STUDIO EMPLOYEES, NO. 804 641 During the course of the hearing rulings on various motions were reserved and they are disposed of by the findings and conclusions in this report. Upon the entire record in the case, and'from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The complaint alleges and the answer admits that Radio and Television Division of Triangle Publications, Inc. (herein called Triangle Division), is, and has been at all times material herein, an unincorporated operating division of Triangle Pub- lications, Inc., which is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Delaware. Triangle Division is, and has been at all times material herein, engaged in the operation of radio and television stations located in Philadelphia, Pennsylvania, with the principal place of business being located in Philadelphia , Pennsylvania. During the year ending December 31, 1960, Triangle Division, in the course and conduct of its operations, derived a gross income in excess of $1,000,000. During the year ending December 31, 1960, Triangle Division, in the course and conduct of its business operations, purchased equipment and other goods and materials valued in excess of $50,000, of which equipment, goods, and materials valued in excess of $50,000 were transported to the Philadelphia, Pennsylvania, location directly from States of the United States other than the Commonwealth of Pennsylvania. The parties are in agreement that Triangle Division is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. B. THE LABOR ORGANIZATION INVOLVED Television and Radio Broadcasting Studio Employees, Local 804 , is, and has been at all times material herein, a labor organization within the meaning of Section 2 (5) of the Act. M. THE UNFAIR LABOR PRACTICES The Employer and Local 804 were parties to a collective-bargaining agreement covering certain employees in Station WFIL at Philadelphia, Pennsylvania. The contract which was signed by Radio and Television Division of Triangle Publications Inc., Radio Station WFIL, WFIL-AM and FM and WFIL-TV expired by its own terms March 17, 1961 , being the last of a series of bargaining agreements between the parties, beginning in 4948. As herein found the original and the amended charges were filed by the Employer on December 16, 1960,,and April 13, 1961. The original charge avers "There is presently in effect . . . an agreement between the Employer and Local 804." The amended charge avers, "up to March 17, 1961, there was in effect an agree- ment...: The gravamen of the complaint is that during the 6 months prior to the expiration of the contract (dated June 17, 1959) Local 804 required the employees covered by it as a condition precedent to becoming members to pay Local 804 an initiation fee of $500, which fee is excessive and discriminatory. (The $500 fee was established November 20,1957.) The complaint is of course based on the amended charge. Under the Board's Rules 4 a charge may be filed by "any person." Having been filed it must be processed; however, on consideration of the dates alone it seems to the Trial Examiner that if the violation complained of is not- moot, nothing more than a technical violation can be found, the framing of a remedy is impossible for assuming that all the allegations of the complaint are proven, may the Board order Local 804 to cease charging applicants its established fee, in the absence of a contract which will control their employment? May the Board order Local 804 to rescind the action establishing the fee and expunge the rule from its bylaws or constitution, unless all requirements in the section are met? Does the complaint in the instant matter run against conduct directed toward any employer, whoever and wherever such employer may be, as well as, conduct affecting the Charging Party's (Employer's) employees? 4 Section 102 9 , Rules and Regulations , Series 8. 634449-02-vol 135-42 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Is Section 8(b) (5) applicable herein? Section 8(b) (5) makes it an unfair labor practice, for a labor organization to re- strain or coerce employees covered by, an agreement authorized under subsection 8(a) (3) by requiring payment of an excessive or discriminatory initiation fee. In the opinion of the Trial Examiner "one who runs may read" that Section 8 (b) (5 ) applies to a carefully selected category of individuals, those covered by an agreement between their employer and the union in which they seek membership. That this section was intended solely for the protection of this category, protection of appli- cants from the union in which they sought membership, necessary to employment, is clearly shown by, the legislative history of the Act. The late • Senator Taft sum- marized the bill agreed upon by the Senate and House Conference as, follows: Subsection 8(b)(5) relating to excessive initiation fees was not contained in the Senate amendment. In the House' bill union initiations fees were among 10 provisions providing for certain-rights and immunities of members of labor organizations against arbitrary action by the officers of a union to which they belonged. This was a so-called bill of rights subsection in the House bill. The Senate conferees refused to agree to the inclusion of this subsection in the conference agreement since they-felt that it was unwise to authorize an agency of the Government to undertake such elaborate policing of internal affairs of unions as this section contemplated without further-study of the structure of unions. In the opinion of the Senate conferees the language which protected an employee from losing his job if a union expelled him for some reason other than nonpayment of dues and initiation fees, uniformly required of all members, was considered sufficient protection. In acceding to the wishes of the Senate conferees in this respect the House group did point out, however, that subsections 3 [sic] (a)(3) and 8(b)(2),of the Senate amendment did not sufficiently deal with the situation in which unions wishing to continue a monopoly of certain trades might pass a resolution requiring all new members to pay exorbitant initiation fees and thereby ,frustrate the intent of • the Senate bill. The House bill limited initiation fees to $25 per member except where a greater amount was permitted by the Board: The Senate conferees were of the opinion that it was not practical to-set a definite amount by law but were willing to accept the principle that where employment was conditional upon membership in a labor organization exorbitant initiation fees should -not be charged. [Emphasis supplied.] - - Consequently the conference agreement contains a new provision (subsec. 8(b)(5),) making it an unfair labor practice to charge fees which the Labor Board finds excessive -or discriminatory to_eniployees covered by compulsory membership agreements. It also provides that in making such findings the Board shall have regard to the practices and customs of unions in particular industries and the pay received by, the employees of whom the initiation fee is required. (2 Legislative History of. Labor-Management Relations Act, 1947, page 1540.) . z Returning now to the Board's rule permitting any person to file a charge. May an employer take advantage of a section 'of the Act, designed for the exclusive use of employees and make use of it as a weapon of his own? The'Trial Examiner seriously questions the use of the Act in such fashion. In the Ray Brooks case 5 in which an employer having refused to bargain with a duly certified union for the reason that shortly after the certification certain of the employees informed the employer that they no longer desired the union to repre- sent them, Mr. Justice Frankfurter speaking for the Supreme Court said, inter.alia: The.underlying purpose of this statute is industrial peace. To allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it. - In the opinion of the Trial Examiner Mr. Justice Frankfurter's statement is clearly applicable to the instant matter. The Employer (the Charging Party herein), in filing the charge,-was-doing nothing more than making use of rights granted exclusively to employees. There is no contention that any applicant for membership in Local 804 was denied such membership, or that the Union's rule, with respect to the payment of initiation fees, was designed to limit or deny membership. It would seem that the Act's limita- tion appearing in Section 8(b) (1) (A), that, "This paragraph shall not impair the 5Ray Brooks v. NL.R.B., 348 U.S. 96, affg. 204 F. 2d 899 (C.A. 9). TV & RADIO BROADCASTING STUDIO-EMPLOYEES, NO. 804 643 right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein," applies to the instant matter. There is no dispute that prior to November 20, 1957, the Local 804 initiation fee was $50 and was raised to $500 'on that date. From November 20, 1957, until De- cember 16, 1960, the Employer did not see fit to charge Local • 804 with an unfair -labor practice with respect to the $500 initiation fee. Neither did any other person. The contract (which expired March 17, 1961) contained the following clause: The party of the first part agrees to maintain a Union Shop, requiring that all present employees (with the exceptions noted in Paragraph 1, Article 1) shall become members of the Union 'and all future employees must become members of the Union within a period of thirty (30) days after employment, and that all employees will continue their membership in the Union during the term of this agreement. If any employee (with the exceptions noted in this Article) does not remain a member in good standing with the Union as provided in the Labor- Management Relations Act, the party of the first part agrees that it will require the employee to come into good standing with-the Union or to be forthwith dis- missed from employment. The Trial Examiner will not discuss the probable illegality of this clause, apparently unchallenged during the life of the contract, for the reason that the contract had already expired before the complaint was issued. The contract (above referred to) provided rates for technicians beginning with a weekly salary of $94, and reaching $184 after 4 years' employment, and salaries of $89 to $179 for crewmembers. The contract provided that on March 17, 1960, these rates should run from $95 to $189 for technicians and $90 to $184 for crew- members. A workweek of 40 hours with overtime thereafter and other benefits are also provided. George Marvill, president of Local 804, testified that Local 804 has 200 members in various locals all in Pennsylvania. The parties stipulated that of the 56 full-time employees of WFIL in the unit represented by Local 804, under the expired contract, 49 were in the top salary bracket. The employees operating WFIL are divided into the categories of regular full time, temporary, and.part-time. Stewart Hooker, labor relations director for the Employer, testified: The. part time help is what the term denotes; people who work less than a full week and at times less than a full day, perhaps as needed and perhaps irregu- larly from week to week or even day to day would be part time help. Temporary help on the other hand, as we mentioned yesterday, might work .regularly day in and day out and maybe week in and week out when used as vacation replacements or that sortof thing, or during a football season or base- ball season. - Part-time help work as needed and average 25 to 30 hours per weei during the year, while "temporary help are pinch hitting for full-time employees" and have no status. Hooker further testified that after Local 804 increased its initiation fee in 1957 the fee was discussed by the Employer and Local 804 "many times," including the nego- tiations involving the renewal of the last contract, even after it had expired; that the initiation fee came up "in connection, with hiring and the problems we were having of hiring part-time help"; that: At the March 2 [1961] meeting, Mr. Markowitz was speaking for the Union at that time, and said the Union might consider some arrangements for temporary help, that is vacation relief, football and baseball and that sort of thing, but would oppose the hiring of part time help. TRIAL EXAMINER: What was the objection? The WITNESS: Their basic objection to the employment of part time help and temporary help, seem to be from what they said to us it lessened the opportuni- ties of employing full time employees. According to the contract, part-time employees were required to become members of Local 804, according to Hooker: Because with the sporadic employment that part time people would obtain, it had very little appeal to them if, they had to pay five hundred dollars. Hooker testified that Local 804 "asked us what guarantee the Company might give as regards to regular situations," stating that Local 804 "was opposed to part time and 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD temporary employees" unless there was some kind of "minimum of situations" set for regulars. Hooker further testified: TRIAL EXAMINER : Let me ask you one question that may clarify a lot of this in my mind. At the time these negotiations were taking place that we are talking about, how many part time.people did you have there? The WITNESS: Two. TRIAL EXAMINER: So the Union was merely talking about two people, and you were merely talking about two people, is that right? The WITNESS: That is all we were talking about based on present practice. TRIAL EXAMINER : How many people were there all together at that time? The WITNESS: In the unit? TRIAL EXAMINER: Yes. The WITNESS: About 45. He testified that the representative of Local 804: . went on to say that if the Union were given this, that he would recom- mend a cut in the initiation fee. He specifically told us he would recommend the initiation fee be reduced if this could be done. That was the extent it was discussed at March 2 and March 15. On March 23, which was the third meeting, the company through me, again brought up the necessity of revising the excessive initiation fee as we termed it after the Union again had brought up the subject of possible revisions on the number of part timers. They were talking about the limit on the number of part timers. We brought up the fee again. At that time, Mr. Bundesmenn, who was at the meeting, and who was business agent for the local , said "there may be something worked out there, too." [Emphasis supplied.] However, according to Hooker , the parties could reach no conclusion asthe Union was talking only in terms of revising the method of payment of the $500 fee and "we [the Employer] were talking about reduction of the total amount of the fee which was and had been a problem." According to Hooker, on March 29, 19'61, after the contract had expired, the Employer and Local 804 again met and: Mr. Moldanoto , who is a member of ,the Committee , in the course of a discus- sion of this whole general subject, again said, "we are willing .to go along with the temporary employee situation, but not with the part timers." Hooker testified further that: Mr.. Wilderman, who again - was representing the Union at this particular meeting, shortly after that said, "we wont buy a contract without either a guar- antee of situations or a provision for no part timers if there are lay-offs." By that I understood him to mean if any regular man were laid off, part timers had to go. The Employer and Local 804 met again on April 27 and on May 18, the meetings being at the offices of the Federal Mediation Service; that on May 18, 1961: At the end of the day he [the Mediator] came up with a clause which both parties agreed to take under consideration which is still a tentative agreement on this subject. Of course, the Trial Examiner will base no findings on any of the events occurring after the complaint was issued, and hopes that none of this evidence colors his judgment of .the facts. He cites the evidence because it was adduced by the General Counsel. With respect to the negotiation regarding the expiring contract, Hooker testified on cross-examination: Q. (By Mr.' MARKOWITZ.) Didn't the Union suggest to you during the course of these negotiations, that more employees other-ought to be added to the staff of the station, more regular employees ought to be put in the bargain- ing unit? A. That has been implied or suggested and hinted at from time to time, yes. Q. By the Union negotiators? A. Yes. Q. Hasn't the company been told by the Union in discussions that the station was understaffed? A. I have heard that term used once or twice. TV & RADIO BROADCASTING STUDIO EMPLOYEES, NO. 804 645 Q. By representatives of the Union? A. That is righ_ t, it is a pretty common expression in negotiations. He also testified that Local 804 expressed, the belief during the various negotiations. that "the existence of part time employees was a threat to the job security " of regulars., George Kohler, the Employer's station manager, testified that "At some point after the initiation fee was raised, we had considerable difficulty in hiring temporary vaca- tion relief and part time employees"; that on his instructions when interviewing pros- pective employees they were informed that union membership was necessary to employment and told the amount of the initiation fee required by Local 804; that such applicants were also told ",that the Company will not honor a request for pay- ment of the initiation fee"; ,that since February 1961 part-tune employees have worked. at WFIL every week, performing the same duties as regulars, but only one or two such employees are employed at any one time. Irving Ross, chief engineer of WFIL, testified he interviewed all applicants; and that the Employer started a hiring campaign after the contract expired . He testified: TRIAL EXAMINER : You started your hiring campaign after the contract had expired? The WITNESS: That is correct. We started around the first week of April. TRIAL EXAMINER: Those whom you interviewed prior to the expiration of the contract The WITNESS: We told them the same thing. TRIAL EXAMINER: You told them that the Union. would ask for initiation fee of five hundred dollars? The WITNESS: Right. TRIAL EXAMINER: And if they asked for the discharge for non-payment, you weren't going to honor it? The WITNESS: That is correct. TRIAL EXAMINER: Nobody refused to take jobs under those conditions? The WITNESS: That is right, no, sir. Conclusion Aside the dates of the filing of the charge and the amended charge herein showing matters already moot or only technical in reality, and considering only the actual wording of Section 8(b) (5) of the Act and its legislative history, the Trial Examiner is of the opinion that (if properly brought, or rather filed) no violation of the Act is shown ; however, it is the further opinion of the Trial Examiner that the charges herein were not properly brought for the following reasons: it is clear on all the evidence in the record considered as a whole that Local 804 and the Employer had a real difference, clearly financial but not as to the financial aspect (or any other aspect) of the initiation fee charged by Local 804. The crux of the entire difference was expressed in the statement of Chief Engineer Ross during his cross-examination, "I believe that under the contract which has just expired it [salary] is in excess of $189.00 a week." This statement, in the light of the stipulation to the effect that of 56 full-time employees within the bargaining unit , 49 were in the top level salary bracket set up in the contract , reveals the real controversy in the negotiations. Of course, Local 804 would 'be expected to protect the jobs, seniority , and wage rates of its present members, while quite understandably the Employer would welcome the right to make use of parttime help to do "exactly the same work" at a considerably lower wage rate. The negotiations with respect to the expiring con- tract, its renewal or replacement, revolved about this single issue. This is clear. In the opinion of the Trial Examiner the original charge was filed as a tactical maneuver during collective bargaining and the amended charge was intended only to clear the way for a "hiring campaign." The fact that any person seeking employ- ment with WFIL must seek membership in Local 804 was denied such member- ship by the device of an exorbitant, discriminatory initiation fee, prohibited by the Act, did not enter into the reason for the charges, nor is there any evidence that any applicant for employment refused such employment because of the initiation fee, or that any such applicant was denied membership in Local 804 . Quite the contrary. It is therefore the Trial Examiner 's opinion that the differences of Local 804 and the Employer should have been resolved through collective bargaining with resort to the Board's processes only when negotiation failed because of impasse or pro- scribed conduct relating to the bargaining process. The issues need not have been beclouded by the Employer's resort to a section of the Act not intended for its use. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While Local 804 apparently attempted to get all that it could from the Employer, still in the Trial Examiner's opinion its position was not one of unreasonableness, and, had the Employer been willing to bargain further without recourse to Section 8(b)(5), much more might have been accomplished through the give and take atmosphere of the bargaining table. The Trial Examiner has discussed the relevant evidence with the exception of that brought forward to bear directly upon the amount of the initiation fee charged by Local 804, after November 20, 1957, the reasons therefor, the contention that the fee is excessive or discriminatory and its collection violative of the Act. Section 8(b)(5) requires that in making a finding that a union's initiation fee is excessive or discriminatory the Board consider among other relevant factors the practices and customs of labor organizations in the particular industry. The Trial Examiner feels that the relevant factors other than customs and practices have been sufficiently discussed. As to customs and practices the Trial Examiner believes that only the customs and practices of the labor organizations in the particular field, operating in the philadelphia area, need be considered. Wages and union fees in areas remote from Philadelphia can be of little assistance to a determination in the instant matter. The General Counsel adduced evidence, in the form of contracts between various labor organizations and employers, as to fees charged for membership; however, the oral testimony with respect to the fees and the reasons for them does not sustain the General Counsel's contention. For example: John W. Hallowell, vice president of Local 1246, I.B.E.W., which holds a collective-bargaining contract with Television and Radio Station WCAW, Phila- delphia, testified that Local 1246 holds only 1 contract, has a total membership of 76, and has processed 4 grievances in 2 years. Although the contracts introduced by the General Counsel show fees much lower than those of Local 804, the record does not show the kind of work actually per- formed by the employees covered by these contracts nor the wages they receive, while the record is clear that many of the members of Local 804 employed at WFIL are earning the maximum salaries set up in the expired contract. Local 804 contends that the increased initiation fee was necessary because of the increase in the cost of operating the Union and that without it the local would be bankrupt. There is evidence to support the claim in that the total collected from initiation fees from 1958-60 inclusive is $7,465,8 while its bank balance as of May 31, 1961, is $3,518,98.7 The Trial Examiner being of the opinion that the complaint herein does not dis- close a cause of action, being based on a charge improperly filed, deems it un- necessary to evaluate the various contracts introduced en masse as support of the General Counsel's contention, or to analyze the Union's financial statements, as this phase of the case is not reached. Final Conclusion - Upon the entire record, the evidence considered as a whole, and his observation of the witnesses, the Trial Examiner finds that no cause of action has been shown and the complaint should be dismissed in its entirety. The Trial Examiner so recommends. Upon the basis of the foregoing, the Trial Examiner makes the following: CONCLUSIONS- of LAW 1. Radio and Television Division of Triangle Publications, Inc., Radio Station WFIL, WFIL-AM and FM and WFIL-TV, is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Television and Radio Broadcasting Studio Employees, Local 804, is a labor organization within the meaning of Section 2(5) of the Act. 3. Television and Radio Broadcasting Studio Employees, Local 804, has not engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (5) and Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] e Respondent's Exhibits Nos. 4-B, C. D. Respondent's Exhibit No 4-E.