Peoples Gas System, Inc.

PEOPLES GAS SYSTEM Peoples Gas System, Inc. and International Chemi- ;cal Workers . Union, Local 1012 and Interna- ., tional Chemical Workers Union, Local,, 359. -Cases 12-CA-10563 and 12-CA-10567 23 May 1985 DECISION AND ORDER BY CHAIRMAN DoTso'N AND MEMBERS, - HUNTER AND DENNIS Based on separate charges filed- by Charging Par- ties Local 1012 and Local 359, International Chem- ical Workers Union, ,the General Counsel of the National Labor Relations Board, acting through the Regional Director for Region 12, issued- a con- solidated complaint and notice of hearing and an amended- -complaint against.-the Respondent, Peo- ples Gas System, Inc. on 27.May and 27 June -1983, respectively. The, complaint, -as amended, alleges that the- Respondent violated Section -8(a)(1) of the National Labor Relations Act by soliciting employ- ees to resign from membership in Local 1012 or. Local _ 359. The Respondent- answered both the complaint and the amended 'complaint. On 26 Sep- tember.1983 .the Respondent, the Charging Parties, and the General Counsel. filed with the Board a motion to transfer this proceeding to the.Board and a stipulation, of facts. The parties stipulated to the contents ;of the record and agreed that no oral tes- timony was necessary or., desired. The parties. fur- ther stipulated that they .waived a hearing before an administrative law judge, the making of findings, of fact and conclusions of law by a judge, and the issuance of a judge's decision, and desired to submit these cases directly to the Board for find- ings of fact, conclusions of law, and an order. By order dated 18 January 1984, the Board approved the stipulation Of facts and transferred the proceed- ing to the Board., Thereafter, briefs were filed by the General Counsel and the Respondent. ' , The Board has considered the entire record and the briefs and .makes the- following: findings and conclusions. 1. THE BUSINESS OF THE EMPLOYER Peoples Gas System (PGS) 'is a Florida corpora- tion-with offices and places of business 'in Tampa and Orlando, Florida, where it is engaged as a public utility in the sale and distribution of natural gas and liquefied petroleum gas, and the' sale and installation of gas appliances: During the 12-month period prior to the filing. of the instant motion and' stipulation, PGS, in-the course and conduct of its operations, derived - gross revenues in- excess of $250,000. In addition, during they same 12-month period, PGS, in the course and conduct of its oper-, 275 NLRB No. 75 505 ations, purchased and received at its Florida facili- ties goods, materials, and supplies valued in excess of $50,000 directly from points outside the State of Florida. On the basis of these facts, the parties stip- ulated, and we find, that the Respondent PGS is, and -has been at all .times material herein, an em- ployer engaged in commerce within the meaning of Section- 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED --The parties stipulated, and, we find , that Local 1012 and Local 359, International ' Chemical Work- ers Union, are, and have been at all times material herein, labor organizations -within the meaning -of Section 2(5) of the Act. The parties also stipulated, and we find, that the International Chemical Work- ers Union and its Joint Council No. 1 are now, and have been at all times material herein , labor organi- zations within .the meaning of. Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 1. 1 A. Stipulated Facts =Local 359 -is the certified collective-bargaining representative for a unit of the Respondent's meter readers, meter reader collectors, and office clerical employees, at the Respondent's Orlando facility. International Chemical Workers Union, AFL-CIO, and its Joint Council No. 1 are the joint certified collective-bargaining representatives for a unit of the, Respondent's distribution, installation, service, and warehouse. employees at the. Respondent's Tampa facility. - - On or about 15 February 1982, the Respondent and Local 359 entered into a collective-bargaining agreement covering the Orlando unit, and the Re- spondent 'and the International, the-Joint Council, and Local 1012 entered into a collective-bargaining agreement covering the Tampa unit. Both agree-' ments - expired on 15 February 1983. Also, both agreements.•provided for the • deduction of union- dues-from the-wages of employees who authorized such deductions, and provided that in order to revoke-. such dues-checkoff authorization, the em- ployee had to provide written notice by registered mail to the Union and to-the Respondent. In this regard, the agreements provided that there would be an annual period during which employees could revoke their dues-checkoff authorizations. Specifi- cally, the Orlando agreement, provided that em- ployees:could revoke their dues-checkoff authoriza- tions during the period occurring either not more than 5 days nor less than -2 days prior to the anni- versary of the employee's signing of the checkoff authorization, or not more than 5 days nor less I 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than 2 days prior to the expiration of the agree- ment, whichever period- occurred sooner. The Tampa agreement provided that employees could revoke their 'dues-checkoff authorizations during the period occurring either not more than 5 days nor less than 2 days prior to the anniversary of the employee's signing of -the checkoff authorization, or not more than 5 days nor less than 2 days prior to the expiration of the agreement, whichever period occurred sooner. ' The Tampa agreement provided that, employees could revoke their dues- checkoff authorization during the period occurring either not more than 20 days nor less than 10 days prior to the anniversary of the-employee's signing of the checkoff authorization, or not more than 20 days nor less than 10 days.prior to the expiration of the agreement, whichever period occurred sooner. Neither agreement stated anything about the pro- cedures for resigning from-. membership in. the Union. Indeed, neither agreement required that em- ployees become members of the Union in the first place. There are approximately 50 employees in the Tampa unit, and approximately 16 employees in the Orlando unit. In late 1982 and early 1983, prior to the 15 February 1983 expiration of 'the instant collective-bargaining • agreements, approximately three - employees in the Tampa unit and approxi- mately two employees in the Orlando unit ques- tioned supervisors of -the Respondent about how to resign from their respective Unions. . On or about 20 January 1983, the Respondent's personnel director, M. Lyle Kimble, sent the fol- lowing letter to each Tampa employee who was a member of Local'1012: • ^' - Dear Fellow Employee:. As you may recall, the contract between ,the Company and the Union permits Union mem- bers to discontinue the checkoff of their Union dues by the Company during a short period each year. The period runs from January 26-to February 5, 1983. You may also resign ,from the Union if you, wish to do so. - • Accordingly, you have a short. opportunity in the next few, days to discontinue the check- off of Union dues and resign from,the Unioniif you wish to do- so: If you-'wish-,to, take-this - action, you can follow the procedures set forth below.. = - Keep -in mind- that the' Union; contract, per- mits you to discontinue-the checkoff- of ^ Union dues only from January 26 to-- February'- 5. If you wish to discontinue dues checkoff, you must do so-^between_ those dates, or wait an- , other year. - The decision is yours to make. The Compa- ny simply' wants to make sure you know about it, and understand your rights and privileges, since , we have been receiving a number of questions on this issue . Whether you resign from the Union or whether you remain a member and continue dues checkoff will not make any difference in your gross wages, ben- efits, position or treatment by the Company. If you want to discontinue the checkoff of Union dues and resign from -the Union, you should take the following actions. - 1. You should date and sign two copies of the enclosed letter addressed to the Company and the Union. (Keep a third copy for your- self.) 2. Between January 26 and February 5, 1983 you should mail the two signed copies-one to the Company and one to the Union-of the letter. The letter should be - received by the Company and the Union between those dates. 3. Be sure the envelopes on both letters 'are sent by -registered- mail. The contract between the Company and the Union- require [sic] regis- - - tered mail for these notices to be effective. I•want you-to understand that the Company is not urging you either -to remain a member of the Union or to resign from the Union, or to discontinue the dues checkoff. -As far as the Company - is concerned, - that is a matter for each employee to decide without pressure from either the Company or- the Union. • Sincerely, M. LYLE KIMBLE,. Personnel Director On or about 3 February 1983, Kimble sent the same letter to each of the Orlando employees who was a member of Local 359, except that the dates for revocation of dues checkoff in the Orlando letter were different from those in the Tampa letter, based on the contractual differences between the two collective-bargaining - agreements in this regard. - - Enclosed with the letters to the Tampa employee members of Local 1012 was' the following reply form letter, prepared by Kimble: Dear Sirs: Under Article II, Section 5 -of the contract dated February 15, 1982 between the Compa- ny and the Union, -I am hereby notifying you that, T revoke my authorization. for -deduction by the Company of - Union dues from my wages and that I hereby -resign my member- ship in the Union. PEOPLES GAS SYSTEM 507 - Sincerely, - Company's address Peoples Gas System P. O. Box 2562 Tampa, Florida 33601 Union's address International Chemical Workers Union, Local #1012 1520 E. 9th Avenue Tampa, Florida 33605 The same reply form letter was enclosed with the letters to the Orlando employee members of Local 359, except that the Respondent's Orlando address and the International's Mulberry, Florida address were included, rather than their respective Tampa addresses. Subsequent to the receipt of the above letters from the Respondent, three Tampa employees re- signed from Local 1012 and revoked their dues- checkoff -authorizations, using the reply form letter provided by the Respondent, and two Orlando em- ployees resigned from Local 359 and revoked their dues-checkoff authorizations, using the reply form letter provided by the Respondent. • No employee receiving either the 20 January or 3 -February letter from the Respondent who did not return a copy of the revocation reply form letter to the Respondent • was penalized for failing to return it, whether or not such employee signed the revocation letter and sent it to the Union. Fur- ther, no employee who did not revoke his or her dues-checkoff authorization and resign from the Union was, penalized by the Respondent for not doing so. At no material time has Local 359 or Local 1012 maintained any internal union rules requiring or suggesting-that its members notify their employers when they resign from union membership. - Prior to the time the 20 January and 3 -February 1983 letters were sent by Kimble, the' Respondent was involved in collective-bargaining negotiations with both Local 359 and Local 1012. Those negoti- ations continued subsequent to the sending of the 20 January and 3 February letters, and new bar- gaining agreements' were reached between the 'Re- spond^nt and Local 1.012 ,on or about 18 February 1983 and between the Respondent and Local -359 on or about 21 February •1983. "'A. - The Issues'and Contentions The parties have stipulated', that the sole issue to be' decided by the Board in this case is whether the Respondent violated Section 8(a)(1) of the Act by sending the 20 January_and 3 February 1983, letters under the circumstances described herein. • . The General Counsel stresses that, in its letters of 20 January and 3 February, the Respondent re- quested that employees inform the Respondent not only of their decisions to revoke their dues-check- off authorizations, but also of their decisions about resigning from the Union. The General Counsel argues that the Respondent had no contractual or other reason to request information from employ- ees about their decisions* to resign and, by its re- quest to be so informed, the Respondent placed pressure on, and thereby solicited, employees to resign, in violation of Section 8(a)(1) of the Act, citing Landmark International Trucks.' The Respondent asserts that there were no threats of reprisals or promises of benefits ex- pressed or implied in the letters. notifying employ- ees of their rights to revoke dues-checkoff authori- zation and to resign from the Union, and that the letters were sent and received - in an atmosphere free of any other alleged unlawful activity. The Respondent also notes that the letters in question were sent after several employees had asked super- visors about how to resign from membership in the Union. Additionally, the Respondent points out that the final paragraph of its letters told the em- ployees that the Respondent was not urging them either to remain in or resign from the Union, or to continue or-discontinue their dues-checkoff authori- zation. Finally, the Respondent notes that only 5 out of the approximately 66 employees in the Tampa and Orlando units actually resigned from membership in the Union and revoked their dues- checkoff authorizations after having received the instant letter from the Respondent, and that no em- ployee was penalized for not resigning from the Union or for revoking dues checkoff. Accordingly, the Respondent argues that the letters in question cannot reasonably be found to have solicited em- ployees to resign from membership in the Union, and that, the Respondent has thus not violated the Act as alleged. - We find merit in the Respondent's argument. C. Discussion and Conclusion In Perkins -Machine, 'Co.; 141 -NLRB 697 (1963), the Board held that the company acted lawfully in bringing ' to., .the attention of its :employees their right to resign from the union. and to revoke their dues-deduction. authorizations in a letter to• each of its employees indicating how to revoke the- check- off authorization and withdraw from the union, and enclosing, envelopes -and suggested language for the employees touse. In so holding, the Board stressed ',257.NLRB 1375 (1981), vacated and remanded 699 F 2d 815 (6th Cir 1983), affd on remand 272 NLRB 675 (1984) 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the company's letter to the employees was "free from any threat of reprisal or promise of ben- efit," and that there was -no evidence of any other coercive. activity on the part of the company. - The case before us is very much like _Perkins. In Perkins the collective-bargaining agreement provid- ed for an annual 15-day "escape" period, allowing employees to withdraw. from the union and revoke their checkoff authorizations during that time only. The contract also-required that "Notice of Revoca- tion" had to be given to both the employer' and the union; the Perkins case-makes-no reference to any requirement that, notice of - resignation from the union had to.be 'provided to the employer.2 Simi- larly, here the collective-bargaining agreements provide for a short annual "escape" period during which employees may revoke their dues-checkoff authorizations and require that notice of such revo- cation must be given to both the Respondent and the Union. The letter to the Perkins employees was almost identical to the' Respondent's 'letter 'to- the instant employees. Both letters assured the employees-that whether they remained union members or resigned from the union would make no difference in their terms and conditions of employment. Both letters assured employees that the decision to remain a member of the union or to resign from the union was a matter for each employee to decide for him- self without pressure from either the company or the union. The only distinction between Perkins:and the in- stant case is that the contractual provisions quoted in the Board's Perkins decision referred to with- drawal from the union as well as revocation during the escape period, while the contracts here do not refer to withdrawal from the -Union. However, the mere fact that the' Perkins contract mentioned with- drawal from the union while the agreements here say nothing about procedures for resigning from union membership is not a sufficient basis for dis- tinguishing between the two cases. Indeed, there is no distinction between Perkins and the instant case with respect to the contractual requirement for no- tification of employee action. In Perkins, the con- tract. only obligated employees to notify the com- pany about revocation of,the checkoff authoriza- tion; nothing in the contract required an employee 2 The contractual language quoted in the Board's Perkins decision is as follows The contract further provides that there shall be a 15-day annual "escape" period, allowing employees to withdraw from the union and revoke their checkoff authorizations, that the "escape" period "shall immediately precede the anniversary dates of this Agree- ment", and that 'Notice of Revocation must be sent by registered mail to the Company and the Union " [141 NLRB at 698 Emphasis added ] to notify the company of his resignation or with- drawal from the union (fn. 2, supra). The collective-bargaining contracts at issue here have the same requirements as the Perkins contract; that is, notice of revocation of dues-checkoff au- thorization. True, the contracts'here make no refer- ence to resignation from the Union; however, the Perkins contract, while referring to resignation, does not require notification of it. The mention of resignation in the Perkins contract therefore does not provide a significant ground for distinguishing Perkins from the case at bar.3 Furthermore, the factual- differences between these two cases paint an even clearer picture' of lawful employer activity here than that found in Perkins. More specifically, the. employer in Perkins apparently sent the letter to its employees on its own initiative. Here, on the other hand, the Re- spondent was actually responding to employee in- quiries in providing them with information about resignation from the Union.4 In any event, whether a contract contains procedures for resigning from a union has no bearing on the employees' ultimate right to do so. That right stems from Section 7 of the Act.5 Certainly, it is not unlawful for an em- ployer to inform employees of their rights under Section,7 ' where, as here, there is an atmosphere free of coercion, intimidation, or union animus. NLRB v. Monroe Tube Co., 545 F.2d 1320, 1325 (2d Cir. 1976). Nor does the Board's decision in Landmark International Trucks, supra, require a different result. In that case, the employer sent its employees letters similar to those in Perkins and Cyclops, supra, stating that the employees could resign from the union and revoke their dues-checkoff authoriza- tions and if they so desired they should sign the reply form letters provided by the employer, and return one copy to the employer and one to the union, using the preaddressed return envelopes. The letters contained assurances to the employees that the decision was theirs alone and that no ad- verse consequences would stem from any action they took on this matter. The reply form letters 3 Indeed, in this context, the Board has equated resignation and dues- checkoff revocation In -Cyclops Corp, 216 NLRB 857 (1975), the letter sent by the company to its employees referred to both resignation from the union and dues-checkoff authofization revocation However, there is no reference in either the Board's or the judge's decision to a contractual requirement to notify the employer of resignation Nevertheless, the Board affirmed the judge's finding that there was no meaningful distinc- tion between Perkins'and Cyclops 4 See Cyclops Corp, supra (employee inquiries on how to resign from union, employer instructions to employees not unlawful) Even without the questions from employees, the Respondent was justified in sending the letters informing employees of their contractual and legal rights be- cause of the extremely short periods of time 'provided by the contracts for revoking checkoff authorizations (3 days and 10 days) 5 Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) PEOPLES GAS SYSTEM were addressed to both the employer and the, union and stated: Dear Sirs: I am hereby notifying you that I revoke my authorization for deduction of union dues from my-wages and I hereby resign my membership in the Union. Yours truly The Board concluded that the employer in Land- mark- acted unlawfully in sending the letters in question on the ground that the employer had no contractual or other valid reason for-obtaining the information contained in the reply form letter, such as existed in Perkins, supra. We find the instant case to be distinguishable from Landmark on the very grounds that the Board relied on in Landmark for finding a viola- tion. Specifically, unlike Landmark where. there was no collective-bargaining agreement in-effect at the time the employer sent its letters to employees, here there is a collective-bargaining agreement, which by its very terms gives employees the right to revoke their dues-checkoff authorizations during only a short time period each year. Moreover, the contract here requires employees to notify both the Respondent and the Union, in writing, of their, de- 509 cision to, revoke dues-checkoff authorization. Thus, the., Respondent clearly possessed the contractual unerpinnings for its actions, which the employer in Landmark clearly lacked. In terms of extra-con- tractual bases for sending the instant letters, the Respondent's officials had been asked by several employees about- how to resign from the Union. In Landmark, on. the other hand, the administrative law judge found that no real request for assistance had ever been made by any employee to the em- ployer- to justify the employer's letter of instruc- tions on how to resign from the- union. s The contract required that the Respondent be notified of the revocation of dues checkoff. That its form-letters contained the addresses of the Compa- ny and the Union is, therefore understandable. In -light : of all the foregoing considerations, we conclude that the Respondent has not violated the Act as alleged.., - ORDER The complaint is dismissed. 6 We are aware that the Board , in affirming the judge's unfair labor practice finding-on this issue in Landmark, found it unnecessary to rely on the absence of an employee request for assistance However, it does not follow - from this finding-that the presence of such a request is imma- terial