Office & Professional Employees Union

OFFICE & PROFESSIONAL EMPLOYEES UNION Office and Professional Employees Union, Local No. 2, AFL-CIO (Group Health Assn., Inc.) and John E. Mulroy. Case 5-CB-845 October 16, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On July 22, 1969, Trial Examiner Gordon J Myatt issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in certain unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support thereof Respondent filed a brief in support of the Trial Examiner's Decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendation of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GGRDON J. MYATT, Trial Examiner- Upon a charge filed June 14, 1968, by John E Mulroy, an individual (hereinafter called the Charging Party), against Office and Professional Employees Union, Local No 2, AFL-CIO (hereinafter referred to as the Union), a complaint and notice of hearing was issued by the Regional Director of Region 5 on April 14, 1969. The complaint alleged among other things, that the Union, recognized by Group Health Association, Inc (hereinafter called GHA) on a "members only" basis, violated Section 8(b)(1)(A) of the Act by soliciting memberships on the basis of representations that employees would have to become members of the Union to enjoy the benefits of the contract negotiated with GHA. Respondent's answer admitted certain allegations of the complaint, denied 177 others, and specifically denied the commission of any unfair labor practices. Trial in this case was hefd_before me in Washington, D C., on May 26, 1969 All Counsel and representatives were afforded full opportunity to be heard and to introduce relevant evidence Briefs were submitted by the Respondent and counsel for the General Counsel, and they have been fully considered by me in arriving at my decision in this matter Upon the entire record in these proceedings, including my evaluation of the testimony of the witnesses based on my observation of their demeanor and on the relevant evidence, I make the following FINDINGS OF FACT 1 JURISDICTIONAL FINDINGS GHA is a corporation organized and existing by virtue of the laws of the District of Columbia GHA provides medical services to its subscribers in the Metropolitan area of the District of Columbia and Maryland In providing such medical services GHA operates clinics and drug stores in the District of Columbia and Maryland. During a representative 12-month period, GHA received income of approximately $5,000,000, and during the same period purchased and received supplies which were transported across state lines valued in excess of $50,000. On the basis of the foregoing, I find that GHA 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 iI THE LABOR ORGANIZATION INVOLVED Office and Professional Employees Union, Local No. 2, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES The facts in this case are not in dispute and the issues are very narrow and clearly defined The Union sought to organize GHA employees in 1967, and on November 13, 1967, a Board conducted election was held. Before certification could issue objections were filed by a group of employees called the Group Health Standing Grievance Committee (hereinafter referred to as the Committee) Prior to issuance of the Regional Director's Report on Objections, the Union, GHA, and the Committee executed an agreement settling the representation dispute' On April 29, 1968, GHA and the Union entered into a collective-bargaining agreement for the employees represented by the Union The recognition clause in this agreement stated as follows 1 1 Recognition In accordance with the provisions of the Mediation Agreement of February I, 1968, by and between the Association, the Union and a group of employees formally known as "Group Health Standing Grievance Committee," signed under the auspices of Dexter L. Handley, S J (hereinafter sometimes called "The This agreement was executed on February I, 1968 It provided, among other things, that GHA would recognize the Union on a members only basis and would negotiate a collective-bargaining agreement on the same terms The Committee agreed to withdraw its objections to the election and the Union agreed to withdraw its petition in the representation case The agreement was approved by the Regional Director on February 7, 1968 179 NLRB No. 25 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mediation Agreement"), the Association hereby recognizes the Union as the exclusive collective-bargaining representative for employees of the Association who are members of the Union The terms and conditions of this Agreement (except for the provisions of Article II and XIII hereof), shall not extend to any employees who are not members of the Union Except for the provisions of said Articles II and XI1I, when the term "employee" or "employees" are used in this Agreement, it shall refer to those employees of the Association who are members of the Union and to no others.' On May 14, 1968 Herb Chambers and Faye Wolf, cochairman of the Union's Committee at GHA issued a letter to all employees concerning union membership and the benefits to be derived therefrom In this letter Chambers and Wolf informed the employees that a collective-bargaining agreement had been signed by GHA and the Union and urged nonmember employees to join. In an effort to persuade the employees to join the Union the letter contained the following language We have been notified by the Employer's attorney that in order for an employee to receive their retroactive backpay to February 15, that the employee must be a member of the Union prior to May 28, 1968 In other words, the retroactive wage increase which will amount to 5 percent on your base pay will amount to fifteen weeks backpay as of May 28 We are attempting to inform all eligible Union members of the benefits of the Contract and we are enclosing a copy for your information You possibly may have been under the apprehension that you would get these benefits automatically just as the Union members received them. This is not going to happen There has been a lot of talk about the non-Union members receiving an increase in July patterned after the Government increase for classified employees It would be our considered opinion that you have a number of things to consider. The letter then went on to inform the employees that there might be a possibility of a postponement or a cancellation of the increase for Federal employees, and it also pointed out that only the higher grade Federal employees would get an increase equal to the amount of the increase negotiated by the Union for its members. This letter was distributed to nonunion employees and also posted on the bulletin board where Union notices were normally placed. Chambers personally handed a copy of the May 14 letter to the Charging Party and suggested that he read and consider the contents It is the letter which provides the basis of the charge and the subsequent complaint issued on behalf of the General Counsel Contention of the Parties The General Counsel contends that the issuance of the letter of May 14 to the nonunion employees was in fact a solicitation for membership based upon a representation that union membership was the prerequisite to obtaining the benefits contained in the bargaining agreement 'Article II of the agreement dealt with the general category of seniority This article contained the provisions relating to increases and decreases in the working force, job vacancy posting, promotion procedures, and the preparation of a seniority roster Article XIII provided for automation and retraining of employees due to introduction of automated office machinery and electronic data processing equipment According to the General Counsel, such representation constituted a threat of loss of "employment opportunities" which coerced and restrained nonmember employees who preferred to exercise their right under Section 7 of the Act to refrain from joining the Union. The Union argues that the letter was nothing more than a factual statement that the employer was committed to automatically give the benefits to Union members while no such committment existed with regard to nonmember employees. According to the Union, the letter merely stated economic facts which the Union was entitled to place before the nonmember employees in order to induce them to join the ranks of the Union As indicated by the General Counsel, there is no question about the validity the "members only" contract in this case The Board and the Courts have long ago upheld this concept where there is no representative of a majority of the employees in the bargaining unit Consolidated Edison Co v N L R B, 305 U.S. 206, Retail Clerks International Association, Local Union Nos 128 and 633 v Lion Dry Goods, Inc , 369 U S 17 Therefore, the only question presented in this case is whether the Union, having negotiated a contract for its members, violated the act by informing nonmembers that the benefits contained in the agreement would not accrue to them automatically In the circumstances of this case, I am of the opinion that this does not constitute a violation of the Act The offending paragraph in the May 14 letter merely states that union members will receive retroactive backpay by virtue of the contract, and points out to nonmembers that these benefits will not accrue to them as a matter of course There is nothing contained in the language of the letter, either expressed or implied, to indicate that the nonunion employees would be precluded from bargaining either individually or collectively for similar benefits or that they would be prevented from receiving them Nor does the letter indicate that the Union and the Employer agreed that benefits of a similar nature could be accorded only to employees who joined the Union The General Counsel attempts to analogize this case to the line of cases where unions have been found to have committed unfair labor practices by threatening employees with loss of employment. The General Counsel cites United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 675, AFL-CIO, (Mid-Pacific Construction Company), 161 NLRB 1351, and International Woodworkers of America, AFL-CIO and Pioneer Lumber Corporation, 140 NLRB 602. In the first case cited the union caused the employer to terminate two employees for not depositing travel cards of a sister local with the local in whose jurisdiction the employees were working. In the second case union agents engaged in serious misconduct on a picket line in an effort to prevent nonstriking employees from entering the employer's plant. I find that the General Counsel's analogy is strained and that the cases are inapposite. In each instance the union conduct interfered or attempted to interfere with the rights of the employees involved by preventing them from doing that which the Statute allowed. In the instant case, however, no such threat exists The Union merely stated the benefits that its members would receive under the terms of the collective-bargaining agreement, and there is no threat contained in the language of the letter which would indicate that the Union was preventing or would prevent the employer from granting similar benefits to nonrepresented employees OFFICE & PROFESSIONAL EMPLOYEES UNION One other aspect of the Union letter merits consideration The opening sentence of the paragraph in question stated "We [the Union] have been notified by the Employer's attorney that in order for an employee [sic] to receive their retroactive backpay to February 15, that the employee must be a member of the Union prior to May 28, 1968." If this statement is accurate (and there is no evidence to the contrary in the record) the Employer's attorney was announcing that the Employer intended to commit possible violations of Section 8(a)(I),(2), and (3) But there is no charge here against the Employer and the matter is not before me If, on the other hand, the statement is false, it could be argued that the Union was coercing employees by misrepresenting material and substantial facts in order to induce them to become members There is no evidence in the record, however, which will support this argument, nor does the General Counsel advance it in his brief The only evidence here is the naked assertion in the letter itself Without more, the evidence is insufficient to establish a violation on the part of the Union. Accordingly , I find that the General Counsel has failed to establish that the Union has violated Section 8 (b)(l)(A) 179 of the Act by restraining and coercing employees in the exercise of rights guaranteed by Section 7 CONCLUSIONS OF LAW I Office and Professional Employees Union, Local No 2, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 2 Group Health Association, Inc , is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3 By distributing a letter dated May 14, 1968, setting forth a retroactive pay increase to be received by its members and informing nonmember employees that the benefits contained in the contract would not automatically accrue to them, the Union did not violate Section 8(b)(l)(A) of the Act RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the allegations of the complaint herein be dismissed in their entirety