United Packinghouse, Food, Etc., Local 673

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a labor organization as a condition of employment as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. JAMES HOTEL COMPANY, A CORPORATION DAB/A SKIRVIN HOTEL AND SKIRVIN TOWER, Employer. Dated- ------------------ By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Meacham Building, 110 West Fifth Street , Fort Worth, Texas, 76102 , Telephone No. Edison 5-4211, Extension 2131 , if they have any questions concerning this notice or com- pliance with its provisions. United Packinghouse, Food and Allied Workers, Local 673, AFL- CIO and Ora Mae Riley and J-M Poultry Packing Company, Inc. d/b/a Dixie Broiler Company, Inc., Party to the Contract. Case No. 15-C13-575. May 24, 1963 DECISION AND ORDER On December 21, 1962, Trial Examiner George L. Powell 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 attached Inter- mediate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and the Respondent filed a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made 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 briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner, except as modified herein. As found by the Trial Examiner, Respondent, up to February 1962, collected $3 a month from each employee, or from the Employer on their behalf, as periodic dues under the parties' union-security agreement. Beginning with that month, the amount collected was increased to $4. In agreement with the Trial Examiner, we find 1 The Trial Examiner found that Respondent Union violated Section 8 (b) (1) (A) and (2) of the Act by maintaining and enforcing the "side agreement," a form of union security, at a time when it was assisted by the Employer . In the absence of exceptions to these findings , we adopt them pro forma. 142 NLRB No. 84. UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 769 that the additional $1 a month exacted from each employee, and re- fundable upon his attendance at the monthly union meeting, was a fine for nonattendance of the meetings? As such, the Respondent Union could not lawfully require its payment under the union-security agree- ment. It has been consistently held that a union may demand, as a condition of employment, only the periodic dues and initiation fees permitted by the proviso to Section 8(a) (3) of the Act.' Nor could Respondent, under the guise of the union-security agreement, require the Employer to deduct such sums from the wages of employees who had executed checkoff authorizations. We conclude, therefore, that Respondent restrained and coerced employees in violation of Section 8('b) (1) (A) of the Act, and caused and attempted to cause the Em- ployer to discriminate against them, thereby also violating Section 8(b) (2) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action that we find necessary to effectuate the policies of the Act. In his exceptions to the Intermediate Report, the General Counsel requests, in addition to the reimbursement of the $1 fine to all em- ployees, the reimbursement of all dues paid after February 1, 1962, by that group of employees covered by the "side agreement." As we have found that the "side agreement" was unlawful, and as the Employer, after February 1, 1962, also deducted dues from the wages of the em- ployees covered by the "side agreement" and remitted them to the Re- spondent, we shall order that all dues paid after February 1, 1962, by the employees it covers be reimbursed by Respondent Union, with interest thereon at the rate of 6 percent per annum,' to be computed in the manner set forth in Seafarers International Union, etc., 138 NLRB 1142. 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 Respondent , United Packing- house, Food and Allied Workers, Local 673, AFL-CIO, its officers, agents, representatives, successors, and assigns , shall: 2 See The Leece-Neville Company, 140 NLRB 56 3 The Radio Officers' Union, et at. (A H. Bull Steamship Company) v. N.L.R B , 347 U.S 17, 40-42; International Union, UAW, AFL-CIO (John I Paulding, Inc ), 137 NLRB 901 4 For the reasons stated in the dissenting opinion in Isis Plumbing & Heating Co , 138 NLRB 716, Members Rodgers and Leedom are convinced that the award of interest in this proceeding exceeds the Board's remedial authority. While adhering to such view, for the purpose of this decision they are acceding to the majority Board policy of granting interest on moneys due. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Maintaining and enforcing, or requiring J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company, Inc., to maintain and enforce the "side agreement" executed February 2, 1961, insofar as the agreement requires nonmember employees hired prior to April 20, 1960, to pay dues to it, or requires the Employer to pay dues for them. (b) Requiring employees, as a condition of employment, to pay fines for nonattendance at union meetings. (c) Causing, or attempting to cause, J-M Poultry Packing Com- pany, Inc., d/b/a Dixie Broiler Company, Inc., to discriminate against its employees with regard to a term and condition of their employ- ment by requiring it to deduct union fines from the wages of its em- ployees as a condition of their employment. (d) In any like or related manner causing, or attempting to cause, J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company, Inc., to discriminate against its employees in violation of Section 8(a) (3) of the Act, or restraining or coercing the employees of the Employer in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Refund to each of the employees of J-M Poultry Packing Com- pany, Inc., d/b/a Dixie Broiler Company, Inc., the fines deducted from their wages for nonattendance at Union meetings since February 2, 1962, and not yet refunded. (b) Refund to all nonmember employees of the aforesaid Employer hired prior to April 20, 1960, all dues paid by them after February 1, 1962. (c) Post in conspicuous places in Respondent's business offices and meeting halls in Baton Rouge, Louisiana, and places where such no- tices are customarily posted, copies of the attached notice marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by official representatives of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail to the Regional Director for the Fifteenth Region signed copies of the aforementioned notice for posting by J-M Poultry Pack- 5 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 " UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 771 ing Company, Inc., d/b/a Dixie Broiler Company, Inc., the latter willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the aforesaid Regional Direc- tor, shall, after being signed by the Respondent as indicated, be re- turned forthwith to the Regional Director for disposition by him. (e) Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF UNITED PACKINGHOUSE, FOOD AND ALLIED WORKERS, LOCAL 673, AFL-CIO AND TO ALL EMPLOYEES OF J-M POULTRY PACKING COMPANY, INC., D/B/A DIXIE BROILER COMPANY, INC., BATON ROUGE, LOUISIANA 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 maintain and enforce, or require J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company, Inc., to maintain and enforce, the "side agreement" executed on Febru- ary 2, 1961, insofar as that "side agreement" requires nonmember employees of Dixie Broiler Company, Inc., hired prior to April 20, 1960, to pay dues to the Union, or requires the Employer to pay dues for them. WE WILL NOT cause J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company, Inc., to deduct, from the wages of its em- ployees, fines for their nonattendance of meetings of this Union. WE WILL refund to all employees of J-M Poultry Packing Com- pany, Inc., d/b/a Dixie Broiler Company, Inc., all fines which have been deducted from their wages because of their non- attendance of meetings of this Union since February 1, 1962, or which have otherwise been remitted to us and not yet refunded to these employees. WE WILL refund to all nonmember employees hired prior to April 20, 1960, all dues paid by them to us since February 1, 1962. WE WILL NOT in any like or related manner cause or attempt to cause J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company, Inc., to discriminate against its employees in violation of Section 8(a) (3) of the Act, nor will we restrain or coerce said employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a 712-548-64-vol. 142-50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. UNITED PACKINGHOUSE, FOOD AND ALLIED WORKERS, LOCAL 673, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, 70113, Telephone No. 529-2411, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, under Section 10(b) of the National Labor Relations Act (29 U.S.C Sec. 151 et seq.; herein called the Act), began with the filing of a charge on May 11, 1962, by Ora Mae Riley, herein called Riley, and with all parties represented, was held before Trial Examiner George L. Powell, in Baton Rouge, Louisiana, on September 25, 1962, on complaint of the General Counsel and answer of the Respondent.' The main issue in the case is: Did Respondent, United Packinghouse, Food and Allied Workers, Local 673, AFL-CIO,z violate Section 8(b)(1)(A) and (2) of the Act by fining members $1 for not attending union meetings. The Respondent's defense is that the $1 paid to attending members does not constitute a fine against nonattending members, and hence there is no violation of the Act. The validity of an agency-shop provision is specifically not contested on the record. The other issue is whether the so-called "side agreement" violated Section 8(b)(1)(A) and (2) of the Act by not providing for a 30-day grace period, or because the union had no authority to enter into it. Respondent's defense to this issue is that the side agreement was not to be enforced within the necessary 30-day period and the payment of money was dues and was not assistance to the union .3 All parties were represented, and participated in the hearing, and were permitted to develop testimony concerning the issues. A brief was filed by the General Counsel on October 22, 1962. For reasons hereafter stated in detail in the findings of fact, I find that Respondent raised the monthly dues from $3 to $4 for the purpose of giving back $1 to each i The General Counsel of the National Labor Relations Board, 'herein called the Board, by the Regional Director for the Fifteenth Region, issued his complaint and notice of hearing on August 31, 1962, based upon the above charges, alleging that Respondent vio- lated Section 8(b)(1)(A) and (2 ) and Section 2(6) and (7) of the Act Respondent filed its answer on September 10, 1962, denying the alleged violations of the Act. 'This is the name as corrected on the record by Alvin Vicknair, field representative of United Packinghouse, Food and Allied Workers, AFL-CIO. Section 8(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 rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organi- zation to prescribe its own rules with respect to the acquisition or retention of membership therein .. . (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uni- formly required as a condition of acquiring or retaining membership ; UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 773 member who attended the regular monthly meeting. Thus, the nonattending mem- bers were fined $1 for not attending the meeting and this fine was periodically paid by the employer as dues to qualify the employee for continued employment under the union-security contract. I find this to be a violation of Section 8 (b) (1) (A) and (2) of the Act. I find the side agreement also violates Section 8(b) (1) (A) and (2) of the Act. But not on the theory that it did not contain the required 30-day grace period. Rather, I find the violation on the theory that the Respondent does not qualify to hold a union-security clause inasmuch as it is receiving assistance from Dixie Broiler Company in violation of Section 8(a) (2) of the Act. FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company, herein called Dixie, is a Louisiana corporation engaged in the processing and wholesale sale of chickens in Baton Rouge, Louisiana. The answer admits that during the 12 months preceding the issuance of the complaint, Dixie, in the course and conduct of its busi- ness operations, purchased and received chickens valued in excess of $50,000 which were shipped directly to it in the State of Louisiana from points outside the State of Louisiana and that it is engaged in commerce within the meaning of Secton 2(6) and (7) of the Act. I so find. II. THE LABOR ORGANIZATION INVOLVED On February 2, 1961, the United Packinghouse, Food and Allied Workers, Local No. 673, AFL-CIO, herein called Respondent, entered into a collective -bargaining agreement with Dixie in the unit described below. Respondent admits that it, and its predecessor since on or about February 15, 1960, has been certified as the collective-bargaining representative of all production and maintenance employees of Dixie at its Baton Rouge, Louisiana , plant including killing room and truckdrivers, excluding all office clerical employees , foremen, supervisors and salesmen , watchmen and guards, as defined in the Act. I find the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The collective-bargaining agreement and the side agreement The collective-bargaining agreement between Respondent and Dixie dated Febru- ary 2, 1961, contains, among other things, a union-security clause as follows: Article V-Union Shop Each employee must thirty (30) days after the date of signing of this Agree- ment or upon completion of thirty (30) days of actual service with the Com- pany, whichever is later, become and remain a member of the Union in good standing as a condition of employment during the term of this Agreement. The side agreement, dated February 2, 1961 is as follows: FEBRUARY 2, 1961 BATON ROUGE, LOUISIANA It is hereby agreed between J-M Poultry Packing Company, Inc. and United Packinghouse, Food and Allied Workers of America (formerly United Packing- house Workers of America) that regardless of anything to the contrary in the contract entered into between these parties the 2nd of February, 1961, no em- ployee who was employed by the Company on or before April 20, 1960, and who is not presently a member of the Union shall be required to join the Union, but such employees who do not join the Union must either pay the ordinary Union dues or the Company must pay the dues for them. J-M POULTRY PACKING COMPANY, INC. UNITED PACKINGHOUSE, FOOD AND BATON ROUGE, LOUISIANA ALLIED WORKERS OF AMERICA, AFL-CIO One of the two principal issues in this case involves the legality of the union- security provisions of the side agreement. The General Counsel takes the position that the side agreement established an agency shop among a certain class of the employees. And while not attacking the principle of agency shop, the General Counsel does contend that the side agreement is illegal because, first, it failed to provide a 30- 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day grace period and, second , it makes reference to the payment of union dues by Dixie for all employees covered under the side agreement . In the General Counsel's view the payment of agency shop dues by Dixie constitutes a substantive violation of Section 8(a)(2) of the Act, and therefore divested the Respondent of its authority under the proviso to Section 8(a)(3) to condition employment upon union membership. Taking up the contentions of the General Counsel in the order presented, it is noted that the side agreement is a form of union security and it indeed fails, in itself, to grant employees covered by it a 30-day grace period prior to paying union dues. But this failure does not, in my opinion, cause the side agreement to be in violation of Section 8(b)(1)(A) and (2). This side agreement does not stand alone. It specifically refers to the collective-bargaining agreement of February 2, 1961, and modifies it only to the extent that it provides for any employee not presently a mem- ber of the Respondent who had been employed by Dixie on or before April 20, 1960, and who did not wish to join the Respondent. The 30-day grace period for any of the employees who were employed by Dixie on or before April 20, 1960, and who were not presently a member of the Respondent and who desire to join the Re- spondent was provided for in article V of the collective-bargaining agreement. Accordingly, no one is required to join Respondent without benefit of the 30-day grace period. But I find merit in the position of the General Counsel that the side agreement is illegal because it calls for the payment of union dues by Dixie for all of the em- ployees covered under it. The side agreement carved out certain employees who normally would have to join and be governed by article V of the collective-bargaining agreement, and it set up separate rules governing their obligation to the Union The first proviso to Section 8 (a) (3) of the Act states: Provided, That nothing in this Act, . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by an action defined in section 8(a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the 30th day following the beginning of such employment or the effective date of such agreement, which ever is the later .. . Stated another way, the parenthetical clause in the quoted matter above does not give the Employer the right to make a union-security contract with a labor organiza- tion which it has maintained or assisted by any action defined in Section 8(a) of the Act as an unfair labor practice. Is payment of dues maintenance or assistance? The side agreement requires the Company to pay the union dues if they were not paid by the employees and the record in the case establishes that the Company did, in fact, pay the union dues for the employees covered by the side agreement.4 These payments to the Respondent by Dixie constitute a substantive violation of Section 8(a)(2) of the Act (Aacon Contracting Company, Inc., 127 NLRB 1250, 1272). Accordingly, since Respondent was assisted and maintained by Dixie by the payment of union dues for certain of its employees, the Respondent does not qualify under the first proviso of Section 8(a) (3), above, as a labor organization which is authorized by the Act to enter into an agreement conditioning employment on union member- ship. It does not qualify under the Act because the first proviso only authorizes labor organizations which are "not established, maintained, or assisted by any action defined in Section 8(a) of [the] Act as an unfair labor practice." I agree with the analogy of the General Counsel that the lack of authority in Respondent in the in- stant case, was similar to the lack of authority of a noncomplying union to make a contract conditioning employment on membership.5 4 The parties stipulated on the record that there ". . . were approximately from 14 to 19 employees who were employed before April 20, 1960, who were covered by the side agreement that the Company [Dixie] did pay $3 a month union dues for After February of 1962, the Company [Dixie] deducted $4 a month from the checks of all the employees whether they were hired prior to April 20, 1960, or not " (Note here that after February 1962, Dixie deducted the dues payment from wages, but prior thereto it did not deduct dues payments from wages ) 5 Prior to the 1959 amendments, the Board held that a labor organization, not in com- pliance with Section 9(f), (g), and (h), violated Section 8(b) (1) (A) and (2) of the Act if it maintained and enforced union-security provisions of a collective-bargaining agree- ment (Tacoma Harbor Lumber and Timber Co., 108 NLRB 912 ) The Respondent in the instant case was assisted and maintained by the Company's dues payments to it See Julius Resnick, Inc, 86 NLRB 38. Thus Respondent lacked authority to enter into this agreement. UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 775 One last point remains. Section 8(b)(1)(A) of the Act contains a proviso that states: . . . 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 mem- bership therein: Why then cannot Respondent raise the dues $1 and give it back to the member should he attend the union meeting? Isn't that prescribing "its own rules with respect to the acquisition or retention of membership?" The Board has answered that question by holding the proviso to Section 8(b) (1) (A) of the Act does not protect conduct which otherwise would be violative of the Act merely because such conduct was taken pursuant to union regulations. (Utah Construction Co., 95 NLRB 196, footnote 10; Sub Grade Engineering Com- pany, 93 NLRB 406; Byers Transportation Company, Inc., 94 NLRB 1494, footnote 6.) Pacific Intermountain Express Company, 107 NLRB 837, 843. B. The Increase in Monthly Dues From $3 to $4 The complaint alleged that on or about January 8, 1962, Respondent increased its monthly dues from $3 to $4 with the proviso that $1 would be refunded to each member who attended the regular monthly union meeting. It further alleged that the $1 increase in union dues constituted a fine imposed upon employees for non- attendance at union meetings. The complaint alleged that Respondent notified Dixie that it had increased its monthly dues from $3 to $4 and requested Dixie to deduct and/or submit to Respondent the increased amount of $4 per month for each employee in the bargaining unit, including the employees who had signed checkoff authorizations and those who were covered by the side agreement. It is addi- tionally alleged that Respondent threatened to invoke the Union's security provision of its agreement with Dixie to demand the discharge of any employees in the bar- gaining unit for whom Dixie did not, pursuant to checkoff authorizations and the side agreement, submit their respective monthly dues in the amount of $4. It is also alleged in the complaint that, as a result of Respondent's demands, employees of Dixie have been and are now required to pay the increase of $1 in monthly dues as a condition of employment. In its answer, Respondent admitted to all of the conduct alleged above with the exception of two points. First, Respondent demed that the dues were increased with the proviso that $1 would be refunded for attendance at union meetings 6 Second, Respondent denied that the $1 increase in dues constituted a fine for non- attendance at union meetings. All the other noted allegations are admitted. The General Counsel contends that in view of the admissions contained in the answer it is only necessary to determine if the additional $1 in union dues imposed upon employees constituted a fine for nonattendance at union meetings. I agree. But in determining the issue of fact it is necessary to see how and why the dues increase was put into effect. Certain joint exhibits were admitted in the record on motion of the parties. Among them were meeting minutes which referred among other things to the increase in dues from $3 to $4 and to the $1 to be received back for attending the meetings. For example, the minutes of the meeting of Respondent held on January 15, 1962, contains the statement that-"Mr. O. B. [Comager, president of Respondent] put the question about the member paying $4.00 per month every time he or she doesn't come to meeting, and if he or she comes to meeting, he will receive the sum of $1.00 back at the meeting." [Emphasis supplied.] The minutes of the meeting on February 12, 1962, noted that if a member could not attend the meeting because of sickness, "he will receive his or her $1.00 back." The minutes of the meeting of March 12, 1962, contain the reference that-"Mrs. Riley said she would like to vote that the $1.00 be moved from the $4 00 the members have to pay a month for union dues " Following this motion there was a discussion and a vote and the motion was defeated. The minutes continuing, "So it remained for every member to pay $4 00 union dues and with them present they will receive $1.00 back." [Emphasis supplied.] Dixon was notified by letter dated January 17, 1962, from Mrs. Johnnie Wilson, secretary and treasurer, and Mr. O. B. Comager, president, that-"beginning February 1, 1962, and becoming effective from the above date through the 1961-62 contract . . . dues will be $4.00 per member per month ... . 6 Respondent's written answer admitted that the dues were increased with the proviso, but at the hearing the answer was oially amended so as to deny that the proviso was part and parcel of the increase in dues. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Vicknair, international field representative, admitted that the local dues were raised from $3 to $4 and the Local "remitted $1.00 monthly to each member who attended the regular monthly meeting" he admitted this $1 is given to the member when the meeting is over. Further he admitted that if a person who could not attend the meeting because of sickness or some other legitimate excuse and he notifies the officers to that effect at the next monthly meeting, they give that person back that $1 also. Mr. Vicknair testified that he was informed that dues were increased for two reasons, that is to increase the union treasury and to increase attendance at the union membership meetings. Dollie White, employed by Dixie as a gizzard cutter, credibly testified that she was a member of the Respondent, that her monthly dues prior to 1961 were $3 and that since February 1962 they have been $4 and have been deducted from her paycheck and that her shop steward told her the increase from $3 to $4 was, just only to get the people out to the meetings and if you come to the meeting she will get your dollar back." She was asked if she meant the $1 increase in dues to which she replied, "the dollar increase, the increased dollar will be refunded to you if you come to the meeting." [Emphasis supplied.] This witness signed an authorization to deduct $3 from her salary for dues but did not authorize a deduc- tion of $4. Ora Mae Riley has been employed by Dixie for about 5 years as a chicken grader. She testified that she was a member of Respondent but had never paid any union dues herself before 1962, and no union dues had been deducted from her salary prior to 1962. Dixie had paid these sums of money itself. However starting in February 1962, Dixie had been deducting $4 a month from her paycheck. When she received paycheck in February which had the first dues deduction of $4, she and 8 or 10 other employees went to Mr. Boswell, the general manager of Dixie. They asked him about the $4 being taken out of the paychecks and he told them he had received a letter that the dues "would be increased from $3.00 to $4.00 per month and that there was nothing that he could do about it." She asked Mr. Vicknair why the dues were raised from $3 to $4 and he told her, ". . . that it was for the purpose of making the people come out to meetings .. Mrs. Riley testified that O. B. Comager told her it was his idea to have the $1 taken out of the paychecks and "it was only to make us come to the meetings, and if we came to the meetings we would get our $1.00 back." [Emphasis supplied.] "0. B." told this to the meeting in March at the time when Mrs. Riley attempted to get a reduction of the dues from $4 to $3. Union officers were present at this meeting. Respondent's president at that time, Willie Robertson, required those who attended the meeting to sign their names on a tablet. She testified that before February 1962, Mrs. Boswell told a group of the employees, including Mrs. Riley, that he would not make these employees pay union dues when they did not want to join the Union but that Dixie would pay the dues for them. Because Dixie was paying the dues for her, she signed a card joining the Union and considered herself a member because, ".. . it was his money and he was not getting it back and he was doing it as a favor." Lillian Howard, employed by Dixie as a lung puller, corroborated the testimony of Mrs. Riley and in particular testified that "0. B." stood up and explained the reason for raising the dues was "for getting members to attend the meetings . If they attended the meetings the dollars would be returned at the meeting each month." [Emphasis supplied.] The practice of the Company in deducting the dues, as stipulated to by the parties, was to deduct the dues from the last paycheck the employee receives in a month and the dues deducted from that last paycheck were the dues for the preceding month. Lutishia Dixon, Respondent's recording secretary, was called as a witness by Respondent and testified that the dues were raised from $3 to $4 at the January meeting and the purpose for the dues increase "was to increase the attendance of the members to come out and for the raising of the treasury, to build a treasury." She testified that no vote had been taken by the membership on returning $1 to a member that attended the meeting. However I do not credit this testimony as the minutes of the meeting prepared by her for the meeting on January 15, 1962, states "Mr. O. B. put the question about the member paying $4 00 per month every time he or she doesn't come to meeting, and if he or she comes to meeting, he will receive the sum of $1.00 back at the meeting." She was confused in her testimony because although the minutes show the vote was taken at the January meeting, her testimony was to the effect that it was in February when a vote was taken. Yet the letter to Dixie dated January 17, 1962, refers to the fact that beginning February 1, 1962, the dues would be $4 per member per month. When presented with the UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 777 copies of the minutes of the meeting she changed her testimony and testified that the increase in dues was voted on in the January meeting. She testified that starting in March a list was kept of the people who attended the meetings ; that $ 1 was paid in cash to each member; and that no receipt was taken for this sum. Johnnie B. Wilson, Respondent's treasurer, testified that the dues increase of $4 was effective for the month of February but the return of, "the $1.00 out of the $4.00" first took place at the March meeting. She also testified that the Respondent had two reasaons for raising the dues namely , "to try to get the members to come out to the meetings . To build up the treasury." She testified that instead of issuing receipts that those attending the meeting would sign in and when the meeting was over their names would be called and they would be presented with $1. Also that the $1 refund was given to anyone who had a "legal" excuse for not having attended the meeting. C. Conclusions as to Why the Dues Were Increased to $4 I conclude from the above testimony that the resolution raising the dues from $3 to $4 was passed at the regular meeting of the membership on January 15, 1962; the increased dues were paid beginning February 1, 1962 ; and starting at the regular meeting in March, Respondent had refunded $1 to each person who attended a regular -monthly meeting. I further find that one of the reasons the dues were raised to $4 was to make the members attend the meetings . In making this finding I credit the testimony of Mrs. Riley and Lillian Howard as to what O. B. Comager told them as to why the dues were raised. This is corroborated by the meeting minutes of January 15, 1962, that a union member would pay $4 if "... he or she doesn 't come to meeting, and if he or she comes to meeting , he will receive the sum of $ 1.00 back at the meeting." I find that the membership decided to give back $ 1 of the new $4 dues to each member who attended a regular monthly meeting and this decision was made at the same time and was part of the decision to raise the dues to $4. The use of the language, "he will receive the $1 .00 back at the meeting," shows the raise in dues was only to fine nonattending members because the raise would be returned to members attending the meeting . In effect there was no raise at all for members attending meetings and for excused members.? The General Counsel submits that the practice standing alone of increasing the union dues from $3 to $4 and the return of $1 to each member who attended the meetings would be sufficient to make a finding that a fine was being imposed against members who did not attend union meetings. I find it unnecessary to rule on this point as it is clear from the above evidence that the facts substantiate a conclusion that it was the Respondent's intent, when establishing and enforcing this policy, that it was to be a scheme to fine members for nonattendance at union meetings. The Respondent's theory apparently is that the dues increase should not be con- sidered a fine because first, the dues were increased not only to encourage attendance at meetings, but also to build up the Union's treasury; and second, that the decision to remit $ 1 to each person who attended the monthly union meeting was not made nor even discussed until the February meeting, which was 1 month after the Union voted to increase its dues. Considering the second proposition first Respondent's witnesses Dixon and Wilson were the only ones that testified that the refund was first broached in February but, as noted above, I do not credit this part of their testimony . Their testimony was evasive and I was no impressed by their demeanor. They impressed me with being interested in the legal position of Respondent more than in the bare truth. Addi- tionally, the very minutes of the meeting of January refers both to the raising of the dues from $3 to $4 and to the return of $1 to members who attend the meetings. On the other hand, the minutes of the February meeting make no reference of remit- ting $1 dues to members who attend the meeting . The only reference in the minutes of this month came under "unfinished business" and related to returning $1 to mem- bers who could not attend because of sickness . Inasmuch as this came under the category of "unfinished business" I must conclude that the membership had previously 9I do not credit the testimony of Respondent 's witnesses such as that of the treasurer, Johnnie B. Wilson, that no vote had been taken on giving a $1 refund to those attending the meeting but rather that only the officers agreed that it would be a good idea to give a $1 refund. Johnnie B. Wilson was asked "by what authority did you give the $1 00 back to the people if it was not voted on." She replied , "Well, since all of the officers had agreed it would be a good idea to give them $ 1 00 refund , see, we went on and did it We didn't have a vote by anybody." 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provided for the remission of $1 to each member who attend the monthly meeting and that the action of February was nothing more than the expansion of existing policy. As to the first proposition that the increase in dues was not a fine because, in addition to wanting to encourage attendance at meetings , Respondent wanted to increase its treasury, the General Counsel argues that Respondent's conduct was in no way motivated by a desire to build up its funds. I find merit in this position. By the very nature of the practice, an increase in Respondent's funds was dependent upon the failure of the system to encourage attendance at union meetings-a reason the practice was commenced. Any fine has a secondary effect of building up the treasury when the proscribed act is committed. In any event, it is immaterial, as the General Counsel maintains, that there are two reasons why Respondent would adopt a plan if one of the reasons is found to be illegal. By conditioning employ- ment upon the payment of a fine for nonattendance at union meetings, the Act is violated. In The Electric Auto-Lite Company,8 the Board concluded that an increase in dues constituted a fine for nonattendance at union meetings. In that case the union had duly passed a motion increasing the regular monthly dues from $1.50 to $2 for the announced object of encouraging attendance at meetings by exonerating members attending meetings from payment of the 50-cent increase while requiring absentee members to pay this amount to the union. In that case the union did not notify the employer that union dues had been increased nor did the union ever collect monthly dues, as such, in the increased amount. The General Counsel contends that the Auto-Lite case is not distinguishable from the instant case. He points out the minor difference that in Auto-Lite the members were exonerated from paying additional "dues" if they attended the union meeting, while, in the instant case, all members paid the additional "dues" but those attending the meetings were returned the increased charge. In reaching its decision in Auto-Lite the Board stated: 9 Like the Trial Examiner, we believe that, regardless of the means adopted to institute this charge, the necessary and intended effect was to fix a penalty upon those members who did not attend the monthly meetings. We cannot consider such a charge, with the conditions attached, as regular monthly dues. In our opinion, it is nothing other than a fine. In the instant case, Respondent deliberately raised the monthly dues for the purpose of returning the raise to members who attended the meeting. Accordingly it must of necessity impose a penalty against members for not attending the union meetings. The Board has held that If the union imposes . . . qualifications and conditions for membership [other than the payment of periodic dues and initiation fees] with which [an employee] is unwilling to comply, such an employee may not be entitled to membership, but he is entitled to keep his job. Throughout the amendment to the Act, Congress evinced a strong concern for protecting the individual employee in a right to refrain from union activity and to keep his job even in a union shop. Congress carefully limited the sphere of permissible union security, and even in that limited sphere accorded the union no power to effect the discharge of nonmembers except to protect itself against "free rides." (Union Starch & Refining Company, 87 NLRB 779, 784; enfd. 196 F. 2d 1008 (C.A. 7); cert. denied 342 U.S. 815). Likewise the rights guaranteed individuals are endangered of being diminished if a labor organization is permitted to maintain a discount system The Eighth Circuit of Appeals in Spector Freight System, Inc.,19 commented on the Auto-Lite case above as follows: It is possible that a "discount" system of fixing dues would be open to abuse, inasmuch as dues could be set at higher figures, with discounts allowed for compliance with various internal rules of the Union, thus indirectly accom- plishing foreseeable collection of fines or performance of union duties. The Board has held that a labor organization restrains and coerces employees within the meaning of Section 8(b)(1) (A) when it demands that employees pay 8 92 NLRB 1073; enfd. 196 F. 2d 500 (C.A. 6) ; cert. denied 344 U S 823. B 92 NLRB at 1074. 10 273 F. 2d 272, footnote 3. UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 779 fines under the guise of a dues "discount" system.ll The "rebate" system in the instant case has the same effect as the "exoneration" 12 system in the Auto-Lite case or the "discount" system in the Bakery case. All three systems are merely guises to defeat the purposes of the Act. All three systems are merely methods utilized to collect fines in the name of dues. Patently, all three systems defeat the Act's purposes, since labor organizations were authorized to make the payment of periodic dues and initiation fees a condition of employment only in an effort to prevent "free rides." 13 As the payment of the dues under the contract, was a condition of employment and as the Respondent had notified Dixie that it expected to enforce the contract and since the increase amounted in effect to a fine, the Respondent's demands on employees to pay the $1 increase in "dues" constituted restraint and coercion within the meaning of Section 8(b) (1) (A) of the Act. So long as union member- ship is a condition of employment, fines cannot be collected rather only "periodic dues . . . uniformly required .. Section 8(b) (2) of the Act makes it an unfair labor practice for a labor organiza- tion ". . . to cause or attempt to cause an employer to discriminate against an em- ployee in violation of subsection (a)(3) ... I believe that if an employer withheld $1 from the pay of his employees who refused to attend union meetings, even if he received no request from a union to do so, he would obviously and unlaw- fully encourage union activity in violation of Section 8(a) (3) of the Act. According- ly, Respondent by causing and attempting to cause Dixie to deduct a fine from the employees' pay violated Section 8(b)(2) of the Act since by this conduct the Respondent caused Dixie to discriminate against his employees in order to encourage membership and activities in behalf of Respondent. While there is no evidence in the record which shows that the specific intent of the Company in deducting the $1 fine was motivated by a desire to discriminate against its employees, such lack of proof is not fatal, since the act, itself, proved the discrimination. 14 Similarly, the Radio Officers' case stands for the proposition that it is immaterial that some of the employees are already members of the labor organization. D. Implicit Modification of the Collective-Bargaining Agreement The complaint alleges and the answer admits that the employees of Dixie have been and are required to pay the $1 increase in monthly "dues" (i.e., a fine) as a 11 Bakery & Confectionery Workers, International Union of America , Local 12, 115 NLRB 1542; enforcement denied 245 F. 2d 211, 212 (C.A. 3) (in the absence of a show- ing that $1 increase did not represent dues). 12 The system used in Auto-Lite is not a true discount system as was used in the Bakery case. The Auto-Late system might better be described as an "exoneration " system and lies between the "discount" in Bakery and the "rebate" system in the instant case. Like this case and unlike Bakery, the motion passed in Auto-Late actually raised all members' dues by 50 cents and contained no proviso for a discount . Like Bakery and unlike the case at bar, in Auto-Lite all the members did not pay the same amount of dues In this latter respect Auto-Lite can be distinguished from Bakery by how a member escaped paying the additional charge. In Auto-Lite all members' dues were the regular dues (I e., dues prior to the increase) plus the standard increased amount, but one was "ex- onerated" from paying the increased amount ( i.e., fine ) if he performed the act the union required ; i e , attended the union meeting for the month . In Bakery, the dues for a member who paid them in the month in which they accrued, was charged the regular rate (amount before the motion was passed ) of dues; however, for members who failed to pay their dues during the month in which they accrued, the "dues" were regular dues plus the increase ( i.e., fine). 13 See the Legislative History of the 1947 amendments as discussed in Union Starch & Refining Company, supra. 14 Both the Board and the courts have recognized that proof of certain types of dis- crimination satisfied the intent requirement. This recognition that specific proof of in- tent is unnecessary where employer conduct inherently encourages or discourages union membership is but an application of the common law rule that a man is held to intend the foreseeable consequence of his conduct .... Thus an employer's protestation that he did not intend to encourage or discourage must be unavailing where a natural con- sequence of his action was such encouragement or discouragement . Concluding that en- couragement or discouragement will result, it is presumed that he intended such con- sequence. In such circumstances intent to encourage is sufficiently established . ( Radio Officers' Union, etc., 347 U.S. 17.) 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of employment. The General Counsel submits that Respondent and Dixie implicitly modified their collective-bargaining agreement so as to require the payment of this fine as a condition of employment. Accordingly it is the General Counsel's position that by maintaining and enforcing the agreement as modified, Respondent additionally violated Section 8(b)(1)(A) and (2) of the Act.15 I do not agree. I do not feel there was any modification of the collective-bargaining agreement. The collective-bargaining agreement is good on its face and as soon as Respondent ceases and desists from including the payment of a fine with dues as a condition of employment the unfair labor practice will cease. The side agreement, however, is invalid as noted above, and I will order it discontinued. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that the Respondent does now and since February 1, 1962, has been charging dues of $4 per month and refunding $1 per month to members who attend the monthly meeting and having found that this amounts in effect to a fine of $1 per month to members who do not attend the meeting and having found that the payment of this fine is conditioned upon employment of the member, it will be recommended that Respondent be required to cease giving effect to the side agreement dated February 2, 1961, between it and J-M Poultry Packing Company, Inc., requiring certain employees to pay union dues or requiring the employer to pay the dues for them; that the resolution of Respondent adopted in the union meeting of January 15, 1962, raising the dues to $4 and refunding the $1 to members attending meetings be rescinded in accordance with Local 611, Interna- tional Brotherhood of Teamsters, etc (White Baking Company), 125 NLRB 1392, 1394; and that the membership be fully informed that no like or related action should be taken in the future. In order to remedy Respondent's unlawful conduct, I shall recommend that Respondent reimburse the employees for all dues in excess of $3 per month collected after February 1, 1962, and not returned to members who attended the monthly meetings. Also in accordance with the Board's decision in Isis Plumb- ing & Heating Co., Inc., 138 NLRB 716, and Quality Coal Corporation, et al., 139 NLRB 492, I shall include an allowance for interest thereon, such interest to be com- puted in the manner set forth in Seafarers International Union, 138 NLRB 1142. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company is engaged in commerce within the meaning 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. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. By causing or attempting to cause Dixie to discriminate against an employee in violation of subsection (a) (3) by deducting a fine from the employees' pay, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] '6 Convazr, a Division of General Dynamics Corporation , et al, 111 NLRB 1055; en- forcement denied on other grounds 241 F. 2d 695 (C A 9).