Norris Industries

THERMADOR DIV. OF NORRIS INDUSTRIES 479 Thermador Division of Norris Industries and Edith M. Haupt Stove, Furnace & Allied Appliance Workers Local 54, AFL-CIO (Thermador Division of Norris Industries and Edith M. Haupt. Cases 21-CA-9542 and 21- CB-3772 May 24, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 21, issued a consolidated complaint and notice of hearing, dated December 18, 1970, against Thermador Division of Norris Industries (Thermador) and Stove, Furnace & Allied Appliance Workers Local 54, AFL-CIO (Stove Workers). The complaint alleged that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(a)(1), 8(a)(3), 8(b)(1)(A), and 8(b)(2) of the National Labor Relations Act, as amended. Copies of the charges, order con- solidating cases, complaint, and notice of hearing were duly served on the parties. On December 29 and 30, 1970, Respondents Thermador and Stove Workers, re- spectively, filed their answers to the complaint denying commission of unfair labor practices and requesting that the complaint be dismissed. Thereafter, the parties entered into a stipulation of facts and jointly moved to transfer this proceeding di- rectly to the Board for findings of fact, conclusions of law, and order. The motion states that the parties have waived their rights to a hearing before a Trial Exam- iner, oral argument, the making of findings of fact and conclusions of law by a Trial Examiner, and the issu- ance of a Trial Examiner's Decision. The parties also agreed that the charges, complaint and notice of hear- ing, order consolidating cases, consolidated amended complaint and amended notice of hearing, the answers, and the stipulation of facts, including exhibits, consti- tute the entire record in this proceeding. On February 16, 1971, the Board issued its order granting motion, approving stipulation, and transfer- ring the proceeding to the Board. Thereafter, the Gen- eral Counsel and the Stove Workers filed briefs in sup- port of their positions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, 4s amended, the Na- tional Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. 190 NLRB No. 88 The Board has considered the stipulation of facts, exhibits, briefs, and the entire record in this proceeding, and hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Thermador is a corporation engaged in manufactur- ing kitchen appliances, with a place of business in Los Angeles, California. During the normal course of its business in 1969 Thermador sold goods valued in ex- cess of $50,000 directly to customers located outside the State of California and purchased and received goods and services valued in excess of $50,000 directly from suppliers located outside the State of California. The parties have stipulated, and we find, that Ther- mador is, and at all material times has been, an em- ployer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act, and we find that it will effectuate the pur- poses of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Stove, Furnace & Allied Appliance Workers Local 54, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES Thermador recognizes the Stove Workers as the ex- clusive collective-bargaining representative of all its employees within that Union's jurisdiction with certain specified exceptions not relevant here. The current con- tract, which was in effect at all material times, contains a union-security clause requiring that all unit em- ployees become and remain members in good standing of the Union. Article V of the Stove Workers bylaws, "Revenue," paragraph 3, provides in part that "Member must at- tend (2) two out of (3) three meetings in each quarter or be assess ($5) five dollars. [sic]" In February 1970 Edith Haupt, the Charging Party, a union member employed by Thermador as an assem- bler, having missed one meeting during the quarter, asked Union President Joseph Asturi for permission to miss the union meeting that month. Asturi refused and told Haupt that if she missed the meeting she would be fined and that if she did not pay the fine she would be discharged. The parties have stipulated that Asturi was an agent of the Union at all material times. Later, Haupt reported this conversation to Assembly Super- visor Robert Prestwood, an admitted agent of the Em- ployer, who advised her that if she failed to pay a union fine the Employer would have to discharge her if the Union requested it. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haupt did not attend the February 1970 union meet- ing; consequently she was fined $5. Haupt did not pay the fine, and the Union refused to accept her dues for March. On March 5, pursuant to the union-security agreement, the Employer was advised (by a letter dated March 4) that Haupt was " ... not a member in good standing with Local 54, and refused to become so." Haupt was laid off March 6 in the course of an eco- nomic layoff. On April 10 the Union sent the Employer a letter, received on April 13, advising that Haupt had been suspended March 19 for not paying the fine, that Haupt had not replied within 7 days of the suspension as she had been requested to, that after 10 days Haupt had told Asturi she would not pay the assessment, and that "therefore, the suspension stands." The parties stipulated that as a result of the Union's notification letters, and pursuant to the union-security clause of the contract, the Employer, on and after April 14, 1970, refused to recall Haupt. The General Counsel contends that the fine Haupt refused to pay is neither "periodic dues" nor "intitia- tion fees" as those terms are used in the Act and that the Union violated 8(b)(1)(A) and (2), and the Em- ployer 8(a)(1) and (3), by respectively causing the Em- ployer to refuse to recall Haupt and refusing to recall her on and after April 14, 1970, because of her suspen- sion for not paying the fine. The Union contends initially that there is no factual support for the stipulation that Haupt was refused re- call because of her suspension and its communication to the Employer. We find no merit to this contention. In addition to the Union's stipulation to this fact, which requires no other support, it was also stipulated that agents of both the Union and the Employer warned Haupt of this result if she did not pay the fine, that the contract requires employees to be members of the Union in good standing, and that the Union's let- ters of March 4 and April 10 were pursuant to the union-security clause of the contract. Even had the Union not stipulated that the failure to recall Haupt was the result of its communication to the Employer, its other stipulations would compel such a finding. We find, as the parties stipulated, that the Employer refused to recall Haupt on and after April 14, 1970, at the instigation of the Union because her membership in the Union had been suspended as the result of her refusal to pay the fine. The Union's brief equates this case with Boise Cas- cade Corporation, 165 NLRB 971, where the Board held that a union with a union-security clause in its contract did not violate 8(b)(1)(A) by paying ("refund- ing") $2 to members who attended meetings and threatening to cause the discharge of an employee who had not paid his dues. There the Board rejected the theory that, because the union's bylaws spoke in terms of refunding a portion of the dues, the refund was converted into a penalty upon those who did not attend meetings. No meaningful distinction was found be- tween the use of dues to finance a cash reward for attending a meeting and their use for door prizes, re- freshments, or entertainment, at a meeting. The Board thus held that the "dues" actually were dues and not a disguised fine. The Union contends that it should not be penalized because of its less artful use of words and procedure where the objectives and net results are the same; i.e., the assessment here is the functional equiva- lent of a refund. The Union argues that "its attempt to augment its income" is not a fine, as a fine is a punishment for some infraction, while it was substituting a monetary pay- ment for a member 's obligation to attend meetings. In the same vein, the Union asserts that its action may be viewed as reimbursing members who attend meetings for their expenses by reducing their monetary obliga- tions to the Union to the extent that it collects fines. (The corollary to the theory rejected in Boise Cas- cade.) The fallacy in this line of argument lies in Re- spondent Union's implicit admission that there is some category which would include monetary payments for an infraction and which may properly be denominated a "fine"; but the imposition of a monetary payment could always be described as the substitution of money for a duty and thus no distinction could ever be made on this basis. The Union, in broader implication, ap- pears to be suggesting that any obligation or duty is an option, that in such circumstances a party has a "right" to choose from among competing alternatives. We do not agree. Aside from this, were we to accept the Un- ion's formulation and dismiss the complaint on the basis of Boise Cascade, we would be in the anomalous position of holding simultaneously that a refund is not a fine, but a fine is a refund.' The real issue, however, is not whether or not the assessment levied by the Union is a fine, but whether or not it may reasonably be described as either "peri- odic dues" or an "inititation fee." The Act provides that an employer may not justify discrimination against an employee for nonmembership in a union when it has reasonable grounds to believe that membership was terminated for some reason other than failure to tender uniform periodic dues or initiation fees and that a un- ion may not cause such discrimination. Haupt's periodic dues were refused when she ten- dered them. The Respondents do not contend that the assessment levied against Haupt was an intitiation fee. ' Chairman Miller is of the view that Boise Cascade was wrongly decided, and therefore disassociates himself from the above portion of this opinion which is devoted to distinguishing this case from Boise Member Jenkins adheres to his position as expressed in the dissent in Boise Cascade, but also agrees with Member Fanning that, for the reasons set forth, the Respondent Union's argument based on Boise Cascade is not tenable THERMADOR DIV. OF NORRIS INDUSTRIES 481 Since the Respondents have stipulated that Haupt was denied recall as a result of the Union 's notification to the Employer that her membership was suspended because she refused to pay the assessment for not at- tending the union meeting , and since we have found that the assessment was neither uniform periodic dues nor initiation fees, we find that the Employer 's refusal to recall her on and after April 14, 1970, violated Sec- tion 8(a)(3) and ( 1), and that by causing the Employer to refuse to recall her in violation of Section 8(a)(3) the Union violated Section 8(b)(2) and (1)(A). IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent Employer, having illegally dis- criminated against Haupt , shall be ordered to offer her immediate reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges . Respondents, jointly and severally , shall be ordered to make Haupt whole for any loss of earnings suffered by reasons of their unfair labor practices against her. Backpay shall be computed in accordance with the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716, and F. W. Woolworth Company, 90 NLRB 289. CONCLUSIONS OF LAW 1. The Employer is engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Stove, Furnace & Allied Appliance Workers Local 54, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By refusing to recall Haupt because her member- ship in the Union had been suspended for a reason other than nonpayment of dues or initiation fees, the Employer violated Section 8(a)(1) and (3) of the Act. 4. By causing the Employer to refuse to recall Haupt in violation of Section 8(a)(3) of the Act, the Union violated Section 8(b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Board hereby orders that: A. Respondent Stove, Furnace & Allied Appliance Workers Local 54 , AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause the Employer to discriminate against Edith M. Haupt , or any other em- ployee, in violation of Section 8(a)(3) of the Act. (b) In any other manner coercing or restraining em- ployees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Jointly and severally with the Employer, make Edith M . Haupt whole for any loss of earnings she may have suffered as a result of the unfair labor practices against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the Employer in writing , with copies to Haupt, that it has no objection to the recall of Edith M. Haupt. (c) Post at its business offices and meeting hall copies of the attached notice marked "Appendix A."Z Copies of said notice, on forms provided by the Regional Di- rector for Region 21, after being duly signed by the Union's representative, shall be posted by Respondent Union immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter , in con- spicuous places, including all places where notices to members are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (d) Mail to the Regional Director for Region 21 copies of the aforementioned notice for posting by the Employer in places where notices to employees are customarily posted . Copies of said notices , to be fur- nished by the Regional Director for Region 21, shall, after being duly signed by Respondent Union 's official representative, be forthwith returned to the Regional Director. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for Region 21, in what writing, within 20 days from the date of this Order, with. what steps the Respondent has taken to comply here- with. B. Respondent Thermador Division of Norris Indus- tries, Los Angeles, California, its officers agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against Edith M. Haupt, or any other employee, because of nonmembership in a labor organization when it has reasonable grounds for believ- ing membership was suspended for some reason other than failure to tender periodic dues or initiation fees. (b) In any other manner interfering with, coercing, or restraining employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Edith M. Haupt immediate and full rein- statement to her former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges and jointly and severally with the Respond- ent Union make her whole for any loss of earnings she may have suffered by reason of the unlawful discrimi- nation against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon applica- tion after discharge from the Armed Forces, in accord- ance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its premises at Los Angeles, California, copies of the attached notice marked "Appendix B."3 Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by its representative, shall be posted by Respondent Employer immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, ' See fn 2 supra steps the Respondent has taken to comply here- APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Ther- mador Division of Norris Industries to discrimi- nate against Edith M. Haupt , or any other em- ployee, in violation of Section 8(a)(3) of the National Labor Relations Act, as amended, be- cause of her nonmembership in the Union when such membership has been suspended for some reason other than her failure to offer payment of uniform periodic dues or initiation fees. WE WILL NOT in any other manner coerce or restrain employees in the exercise of their rights under Section 7 of the Act. WE WILL , jointly and severally with Thermador Division of Norris Industries, repay Edith M. Haupt any loss of earnings she may have suffered because the Employer refused to recall Haupt after her layoff as a result of our notifying the Employer that her membership had been sus- pended for not paying an assessment. WE WILL notify Thermador Division of Norris Industries, in writing, that we do not object to the recall of Edith M. Haupt and provide Haupt with copies. STOVE, FURNACE & ALLIED APPLIANCE WORKERS LOCAL 54, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 600, Eastern Columbia Building, 849 South Broadway, Los Angeles , California 90014, Tele- phone 213-688-5200. THERMADOR DIV OF NORRIS INDUSTRIES 483 APPENDIX B job no longer exists , to a substantially equivalent NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against Edith M. Haupt, or any other employee, because of non- membership in a union when we have reasonable grounds for believing that her membership was suspended for some reason other than her failure to offer to pay uniform periodic dues or initiation fees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the National Labor Relations Act, as amended. WE WILL, jointly and severally with Stove, Fur- nace & Allied Appliance Workers Local 54, AFL- CIO, repay Edith M. Haupt any loss of earnings she may have suffered because we refused to recall her as a result of being notified by the Union that her membership had been suspended for not pay- ing an assessment. WE WILL offer Edith M. Haupt immediate and full reinstatement her former position or, if this position, without prejudice to her seniority or other rights and privileges. THERMADOR DIVISION OF NORRIS INDUSTRIES (Employer) Dated By (Representative) (Title) We will notify immediately the above-named in- dividual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 600, Eastern Columbia Building, 849 South Broadway , Los Angeles, California 90014, Tele- phone -213-688-5200.