New Orleans Public Service, Inc.

NEW ORLEANS PUBLIC SERVICE, INC. 725 New Orleans Public Service, Inc. and Co-operative Stores' Employees Association of New Orleans. Case 15-CA-4097 Upon the basis of the stipulation, the exhibits, the formal papers, the briefs, and the entire record in this case, the Board makes the following: June 19, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY Upon a charge duly filed on April 20, 1971, by Co- operative Stores' Employees Association of New Orleans, herein called the Union, and amended on June 14, 1971, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint and notice of hearing on June 14, 1971, against New Orleans Public Service, Inc., hereinafter called Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by maintaining an "Employee Educational Assistance" policy under which interest-free educational loans and tuition refunds are made available to all regular and probationary employees of Respondent, with the exception of employees who are officers of the Union or any other labor organization that represents Respondent's employees. Respondent filed an an- swer and an amendment thereto denying the com- mission of any unfair labor practice. On July 22, 1971, the parties executed a stipulation of facts with exhibits attached thereto. On July 26, 1971, they filed with the Board a Motion To Transfer this proceeding to the Board. The parties agreed that the stipulation, together with the exhibits, the charge, the amended charge, the complaint and notice of hearing, the answer, and the first amended answer, shall constitute the entire record in the case, waived a hearing before a Trial Examiner and the issuance of a Trial Examiner's Decision and recommended Order, and agreed to submit the case directly to the Board for findings of fact, conclusions of law, and an order. On July 29, 1971, the Board, by its Acting Executive Secretary, approved the stipulation of the parties and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereaf- ,ter, the General Counsel and Respondent filed briefs.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. I Respondent's Motion To Hold Proceeding in Abeyance because of a possible conflict between the provisions of Sec 8(a)(1) and (3) of the FINDINGS OF FACT 1. JURISDICTION New Orleans Public Service , Inc., a Louisiana corporation with its principal office and place of business in New Orleans, Louisiana, is now, and has been at all times material herein , a public utility engaged in the business of providing electricity, gas, and transit service in the City of New Orleans, Louisiana. During the preceding 12-month period, a representative period, Respondent purchased goods valued in excess of $50,000 which were shipped directly to it in Louisiana from points located outside the State of Louisiana. The parties stipulated, and we find, that New Orleans Public Service, Inc., is , and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Co- operative Stores' Employees Association of New Orleans is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Respondent has maintained an "Employee Educa- tional Assistance" policy of granting tuition refunds and interest-free educational loans to its employees since 1965. This policy is enunciated in its Manual of Standard Personnel Practices and was not negotiated with the Union or with any other labor organization that represents Respondent's employees. Respondent regards tuition refunds and interest-free educational loans as fringe benefits. The refunding of tuition costs is considered by the United States Treasury Department to be additional compensation. Respondent's "Employee Educational Assistance" policy is not made available to employees of Respondent who are also officers of any of the labor organizations representing its employees. The Un- ion's president, James Hesse, was denied the tuition refund benefit on two occasions within the 6-month period preceding the filing of the charge for the sole reason that he is an officer of the Union. Since on one occasion Hesse was reimbursed for a course and National Labor Relations Act and Sec. 302(a ) of the Labor Management Relations Act is hereby denied for the , reasons set forts. infra 197 NLRB No. 117 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shortly thereafter the reimbursement was withdrawn because of his holding office in the Union, the parties agree that it would be futile to require Hesse to follow any procedures normally required of employ- ees in order to qualify for the benefit. Two other union officer-employees of Respondent were in- formed in June 1971 that they could not receive the interest-free educational loan benefit because they were union officers. On August 5, 1970, a secretary of the Union resigned his position in order to qualify under Respondent's "Employee Educational Assist- ance" policy. B. Contentions of the Parties The General Counsel contends that Respondent's refusal to make its "Employee Educational Assist- ance" benefit available to employees who are also officers of labor organizations representing its employees is unlawful as it discriminates against active union members, in that it , denies them a benefit available to all other employees, and it discourages the holding of union office. Respondent states that its policy was adopted and has been adhered to for the sole purpose of avoiding the risk of violating Section 8(a)(2) of the National Labor Relations Act (NLRA), as amended, and Section 302(a) of the Labor Management Relations Act, and therefore does not violate Section 8(a)(3) of the NLRA. In addition, Respondent contends that the maintenance of the employee educational assistance program should not be found to be unlawful because it is a special benefit which is made available only to employees who have taken or who wish to take certain types of educational courses and it is available to all union members who are not present union officers . In these circumstances, Respondent urges that the interference with employees' Section 7 rights is minimal and its effect , with respect to discouragement of union membership , is nonexistent. C. Conclusions There is little doubt that the result of Respondent's refusal to make its "Employee Educational Assist- ance" benefit available to employees who are also officers of labor organizations is discrimination. All employees who are not union officers can receive this "term or condition of employment"; employees who are union officers cannot . Union officers are usually the most active union members. Respondent's policy, by denying them a benefit available to all other employees, discourages the holding of union office. This consequence is evidenced by the prior resigna- tion of the Union's secretary in order to qualify for the educational benefits . The term membership has never been restricted to a bare membership meaning but also includes "discrimination to discourage participation in union activities ." 2 Respondent's policy, therefore, appears clearly to be a prima facie violation of Section 8(a)(3) of the Act. Nonetheless, Respondent states that its motive in refusing to grant these benefits is pure-it feared risking violation of Section 302(a) of the Labor Management Act and Section 8(a)(2) of the NLRA. However, no specific evidence of antiunion motiva- tion is required where the conduct is "inherently destructive of important employee rights ." 3 Even if the employer does come forward with counterexpla- nations for its conduct, the conduct is not necessarily privileged for it is the Board's "duty to strike the proper balance between the asserted business justifi- cation and the invasion of employee rights in the light of the Act and its policy." 4 The balance in this case must be struck between Respondent's fear of violating other provisions of the national labor laws and the officer-employees' rights to benefits received by all other employees. Section 302 of the Labor Management Act reads as follows: RESTRICTIONS ON PAYMENTS TO EMPLOYEE REPRESENTATIVES Sec. 302. (a) It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value- (1) to any representative of any of his employees who are employed in an industry affecting commerce; or (2) to any labor organization, or any officer or employee thereof, which repre- sents, seeks to represent , or would admit to membership, any of the employees of such employer who are employed in an industry affecting commerce; or (3) to any employee or group or commit- tee of employees of such employer employed in an industry affecting commerce in excess of their normal compensation for the pur- pose of causing such employee or group or committee directly or indirectly to influence any other employees in the exercise of the right to organize and bargain collectively 2 Radio Officers' Union v NLRB, 347 U.S 17, 40 (1964) 4 3 N L.R B v Great Dane T r a i l e r s , Inc , 388 U S 26, 34 (1967) Ibid, 33-34 NEW ORLEANS PUBLIC SERVICE, INC. through representatives of their own choos- ing; or (4) to any officer or employee of a labor organization engaged in an industry affect- ing commerce with intent to influence him in respect to any of his actions, decisions, or duties as a representative of employees or as such officer or employee of such labor organization. (c) The provisions of this section shall not be applicable ( 1) in respect to any money or other thing of value payable by an employer to any of his employees whose established duties include act- ing openly for such employer in matters of labor relations or personnel administration or to any representative of his employees , or to any officer or employee of a labor organization, who is also an employee or former employee of such employer, as compensation for, or by reason of, his service as an employee of such employer . . . . [Emphasis supplied.] Respondent's fear of risking violation of Section 302(a) is unfounded. The qualifying language em- phasized above makes clear that payments made to union officers under Respondent's employee educa- tional assistance program would be lawful under the section as "compensation for, or by reason of, his service as an employee of such employer." In reaching this conclusion, we rely on the facts that the United States Treasury Department considers the refunding of tuition costs as "additional compensa- tion" and Respondent regards the tuition refunds and interest-free educational loans as fringe benefits like vacation, insurance, and sick benefits. Furthermore, the principal purpose of Section 302 is "to prevent employers from tampering with the loyalty of union officials and disloyal union officials from levying tribute upon employers."5 It can hardly be said that Respondent would be trying to bribe its union officer-employees by making available to them its employee educational assistance program when that benefit is already available to all other employ- ees and is an admitted fringe benefit. In addition, in the absence of any other evidence that Respondent dominated the Union or interfered with its formation or administration, or contributed financial or other support to it, we find no ment in Respondent's fear of violating Section 8 (a)(2) of the NLRA. We have never held that a grant to a union officer-employee of a benefit available to all other employees is violative of that section of the Act. It is 5 United States v Roth, 333 F 2d 450 (C A 2), cert. denied 380 U.S. 942 (1965) 727 obvious that such a grant is made to the employee in his capacity as an employee and not to the Union or to the officer-employee as a union officer. As we have found that Respondent discriminates against union officer-employees, as this discrimina- tion discourages the holding of union office, and as Respondent has come forward with no legitimate justification for its discriminatory conduct, we conclude that Respondent violated Section 8(a)(3) and (1) of the Act by such conduct. Accordingly, we shall order Respondent to cease and desist from engaging in such conduct and to take certain affirmative action which will effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact and upon the record as a whole, we make the following conclusions of law. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining an "Employee Educational Assistance" policy of granting tuition refunds and interest-free educational loans to all of its employees except those who are also officers of any of the unions representing its employees, Respondent vio- lated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, New Orleans Public Service, Inc., New Orleans, Louisiana, its officers, agents, successors, and as- signs, shall take the action set forth below: 1. Cease and desist from: (a) Discouraging union activities by maintaining an "Employee Educational Assistance" policy of grant- ing tuition refunds and interest-free educational loans to all of its employees except those who are also officers of any of the unions representing its employees. (b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act.6 2. Take the following affirmative action, which is 6 Member Kennedy is of the view that a broad order in this case is unwarranted. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deemed necessary to effectuate the policies of the Act: (a) Grant tuition refunds and interest-free educa- tional loans to any of its employees who meet the normal requirements, without regard as to whether these employees hold union office. (b) Reimburse any of its employees who are or were also officers of the Union for any money expended pursuing education which would be reim- bursable under Respondent's normal requirements, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (c) Post at its New Orleans, Louisiana, plant copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things, except as provided in a lawful union- security contract. WE WILL NOT discourage protected union activities of our employees by maintaining an "Employee Educational Assistance" policy of granting tuition refunds and interest-free educa- tional loans to all of our employees except those who are also officers of any of the unions representing our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL grant tuition refunds and interest-free educational loans to all of our employees who meet our normal requirements, without regard to whether these employees hold union office. WE WILL reimburse any of our employees who are or were also officers of any of the unions representing our employees for any money expended pursuing education which would be reimbursable under our normal requirements, absent our discriminatory policy toward union officers, with interest added thereto. Dated By NEW ORLEANS PUBLIC SERVICE, INC. (Employer) (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 compli- ance with its provisions may be directed to the Board's Office, Plaza Tower Building, Suite 2700, 1001 Howard Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.