United Food And Commercial Workers Union, Local 115, United Food And Commercial Workers International Union, Afl-Cio

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Food and Commercial Workers Union, Local 115, United Food and Commercial Workers International Union, AFL-CIO and California Meat "Company. Case 20-CB-6430 22 November 1985 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 9 September 1985 Administrative Law Judge Frederick C. Herzog issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings , findings, I and conclusions and to adopt the recommended Order as modified. AMENDED CONCLUSIONS OF LAW Renumber Conclusion of Law 5 as 6 and insert the following as 5: "5. By attempting to impose additional initiation fees on financial core members Louis Bertolini, Steve DeBenedetti, Richard Facciolo, and Henni Kuflik, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Food and Commercial Workers Union, Local 115, United Food and Commercial Workers International Union, AFL-CIO, its offi- cers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Renumber 1(c) as 1(d) and insert the following as 1(c): "(c) Attempting to impose additional initiation fees on financial core members." 2. Substitute the attached notice for that of the administrative law judge. i The General Counsel has excepted to the judge's failure to conclude, in accordance with his factual findings , that the Respondent's imposition of additional initiation fees on financial core members constitutes an inde- pendent violation of Sec 8(b)(1)(A) We find merit in the General Coun- sel's exceptions and determine that the Respondent's imposition of such fees is a violation of Sec 8(b)(1)(A) See Professional Engineers Local 151 (General Dynamics), 272 NLRB 1051 (1984) The recommended Order and notice will be modified to reflect the finding of this violation WE WILL NOT attempt to cause California Meat Company to discharge or otherwise discriminate against its employees in violation of Section 8(a)(3) of the Act. WE WILL NOT threaten employees with dis- charge because they resigned their memberships and for reasons other than their failure to tender periodic dues and fees uniformly required as a con- dition or retaining membership. WE WILL NOT attempt to impose additional initi- ation fees on financial core members in violation of Section 8(b)(1)(A) of the Act. WE WILL NOT in any like or related manner re- strain or coerce employees of California Meat Company in the exercise of rights guaranteed to them by Section 7 of the Act. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 115, FOOD AND COMMERCIAL WORKERS INTER- NATIONAL UNION, AFL-CIO Christine Rails, Esq., and Carmen Plaza de Jennings, Esq., for the General Counsel. David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger & Rosenfeld), of San Francisco, California, for the Re- spondent. DECISION FREDERICK C. HERZOG, Administrative Law Judge. This matter was tried before me in San Francisco, Cali- fornia, on 30 April 1985.1 The charge was filed on 24 December by the California Meat Company (the Em- ployer). The complaint issued on 28 January 1985 against the United Food and Commercial Workers Union, Local 115, United Food and Commercial Workers International Union, AFL-CIO (the Respondent), alleging that the Respondent violated Section 8(b)(1)(A) and Section 8(b)(2) of the National Labor Relations Act (Act)2 by i All dates hereafter shall refer to the calendar year 1984 unless stated otherwise 2 See 29 U S C § 151 et seq, where it is stated that it shall be an unfair labor practice under Sec. 8(b)(1)(A) for a labor organization or its agents (1) to restrain or coerce (a) employees in the exercise of the rights guar- anteed in Sec 7 - "Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the ac- quisition or retention of membership therein " Sec 8(b)(2) states that it shall be an unfair labor practice for a labor organization or its agents to cause or attempt to cause an employer to discriminate against an employ- ee 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 period- Continued 277 NLRB No. 83 FOOD & COMMERCIAL WORKERS LOCAL 115 (CALIFORNIA MEAT) imposing an initiation fee on certain employees and by attempting to cause the employer to discharge employ- ees. At the trial, all parties were afforded the right to participate, to examine and cross-examine witnesses, and to produce evidence in support of their respective posi- tions. In addition, the parties were afforded the right to file briefs and oral argument at the conclusion of the trial. Based on the record thus compiled, plus my consider- ation of the briefs filed by the General Counsel and counsel for the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION At the trial the Respondent amended its answer to admit the complaint's allegations that at all times materi- al herein, the Employer, a California corporation with an office and place of business in San Francisco, California, has been engaged in the nonretail distribution of meats, and during the calendar year ending 31 December the Employer, in the course and conduct of its business oper- ations, purchased and received at its San Francisco facili- ty products, goods, and materials valued in excess of $50,000 directly from points outside the State of Califor- nia, On the basis of these admitted facts, I find that the Employer is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The Respondent is alleged by the complaint, and ad- mitted by Respondent's answer, to have been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. I so find and conclude IV. THE UNFAIR LABOR PRACTICES A. Facts The Employer and the Respondent have a long collec- tive-bargaining history, and have been party to succes- sive collective-bargaining agreements. As of September their current collective-bargaining agreement had a valid union-security provision in effect which required em- ployees of the Employer to become members of the Re- spondent. Four of the Employer's employees,3 who previously maintained membership in the Respondent, chose to resign from the Respondent. Each did so by means of letters posted on various dates between 28 August and 26 September. It is undisputed that each such letter was timely received and accepted by the Respondent and is dues and the initiation fees uniformly required as a condition of acquir- ing or retaining membership. Sec 7 gives employees "the right to self- organization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and the right to refrain from any or all suLh activities Louyis Bertolini, Steve DeBenedetti, Richard Facciola, and Henri Kutik 677 that none of the four employees were delinquent in pay- ments due the Respondent prior to their respective resig- nations. Thereafter three employees continued to make month- ly dues payments by means of payroll deductions, while the fourth attended to his payments personally by mail. On 19 September the Respondent's business represent- ative, Robert Angeli, spoke with Joseph Bacciocco, one of the Employer's owners. Angela told ]3acciocco to dis- charge employee Kuflik because she had resigned from the Respondent Union. The next day Angeli wrote to Bacciocco, demanding the discharge of employees Kuflik and DeBenedetti by 24 September. Neither was delin- quent in any payment due the Respondent. The Employ- er did not discharge either employee, however. On 31 October, Angeli wrote to employees Kuflik and Bertolini, informing them that the Respondent and the Employer had entered into a new collective -bargaining agreement 30 days previously, and that, under its union- security clause they were obliged to be members of the Respondent. Each was told to pay an initiation fee of 1 week's wages by 9 November or face discharge. There is no evidence that either ever made the payment demand- ed by the Respondent. By letters dated 30 November and 12 December re- spectively, employees Kuflik and Bertolini asserted to the Respondent that it had made a mistake in requesting payment of an initiation fee. They pointed out in their letters that the Respondent's records should show that they had already paid their initiation fees and paid all their dues prior to their resignations . Each stated their intent to continue to pay dues, but denied liability for an additional initiation fee. By similar letters dated 19 December, Angeli notified each of the four employees that in order to avoid being discharged, pursuant to the union-security clause in the collective-bargaining agreement, they would be required to pay an initiation fee equal to 1 week's 'wages. The Re- spondent advised that it had returned to the Employer the moneys paid by the Employer on behalf of the three employees (Bertolini, DeBenedetti, and K uflik) who had paid by payroll deductions for the months of November and December, and further advised each of the three to have the Employer return the money to them. No moneys were returned to employee Facciola, who had paid by check. By letter dated 28 December, Angeli demanded that the Employer discharge each of the four employees pur- suant to the union-security clause. B. Issue The issue is whether or not the employees' resigna- tions from the Respondent should be construed as evi- dencing an intent on their part to no longer pay dues to the Respondent to prevent their attainment of status as "financial core" members of the Respondent. C. Discussion Based on these essentially undisputed facts, I find that each employee's proffered resignation was effective on its receipt by the Respondent, and that no employee was 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD delinquent in any payment due the Respondent at that time, I further find that each employee continued pay- ment to the Respondent of all moneys due. The Respondent's contention that the resignations were silent concerning any intent to adopt "financial core" status as "members" of the Respondent is factually correct, but does not, in my opinion, lead to the further conclusion that the employees intended to sever all as- pects of their relationship with the Respondent. First of all, the employees never resigned their em- ployment with the Employer. They each continued working within the bargaining unit, and made undeniable efforts to continue payments to the Respondent of all fi- nancial obligations. The record is silent about any of the details of the "contract"4 entered into by any employee concerning checkoff, and there is no evidence that the Respondent's constitution, bylaws, or other agreements or understand- ings with employees necessarily lead the harsh result sought by the Respondent. I infer that had the language of the employees' authorization for checkoff of dues been of the type preventing payment for anything other than full union membership the Respondent would have pro- duced evidence thereof at the trial. It did not.5 Accord- ingly, I decline to find that when the employees resigned their membership in the Respondent they also revoked their checkoff authorizations, or otherwise evidence an intent to sever all their relationships with the Respond- ent. Further, whatever doubt may have existed in the minds of the Respondent's officials concerning the em- ployees' intentions expressed in their letters of resigna- tion was quickly and easily resolved by the employees' repeated tenders of all fees owed and written statements of two employees that they wished to continue payments as they came due. In sum, it appears that the Respondent sought to avoid having the four employees become "financial core" members, as that term is used in such cases as Butchers' Union Local No. 506 (Alpha Beta Co.), 265 NLRB 1290 (1982), and Professional Engineers Local 151 (General Dy- namics), 272 NLRB 1051 (1984). I reject as specious the contentions that the Respondent's intent was merely to avoid violating the law with respect to receipt of pay- ments by unions from employers. Instead, it seems more reasonable to infer that the motivation behind the Re- spondent's professed concern in this regard was to mask its desire to retaliate against the employees because of their resignations. I conclude that the four employees did become "finan- cial core" members of the Respondent and they each met all financial obligation owed by them to the Respondent. It follows, and I find, that by threatening each employee that their discharge would be sought unless they paid ad- ditional fees, and by actually seeking to cause the Em- ployer to discharge these four employees, the Respond- ent has violated Section 8(b)(1)(A) and Section 8(b)(2) of the Act. 4 A valid checkoff authorization is considered a contract between an employee and an employer Distillery Workers Union (Capitol-Husting Co), 235 NLRB 1264 (1978) e Compare Machinists Local 2045 (Eagle Signal), 268 NLRB 635, 638 (1984) On the basis of the foregoing findings of fact, and on the entire record in this proceeding, I make the follow- ing CONCLUSIONS OF LAW 1. California Meat Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent, United Food and Commercial Workers Union, Local 115, United Food and Commer- cial Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening Louis Bertolini, Steve DeBenedetti, Richard Facciolo, and Henri Kuflik with discharge be- cause they resigned from the Respondent and for reasons other than their failure to tender periodic dues and fees uniformly required as a condition of retaining member- ship in the Respondent, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By attempting to cause California Meat Company to discriminate against Louis Bertolini, Steve DeBenedetti, Richard Facciolo, and Henri Kuflik by seeking their dis- charge in violation of Section 8(a)(3) of the Act, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid unfair labor practices, occurring in connection with the operation of California Meat Com- pany, 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 ob- structing commerce and the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, United Food and Commercial Work- ers Union, Local 115, United Food and Commercial Workers International Union, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Attempting to cause California Meat Company to discharge or otherwise discriminate against its employees in violation of Section 8(a)(3) of the Act. (b) Threatening employees with discharge because they resigned from the Respondent and for reasons other than their failure to tender periodic dues and fees uni- formly required as a condition of retaining membership in the Respondent. (c) In any like or related manner restraining or coerc- mg employees of California Meat Company in the exer- cise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. 6 All motions inconsistent with this recommended Order are denied FOOD & COMMERCIAL WORKERS LOCAL 115 (CALIFORNIA MEAT) 679 (a) Post at its business office and all other places copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including 7 If 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 Nation- al 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 " all places where notices to members are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Mail copies of the notice to the Regional Director after the copies have been signed as provided above for posting by California Meat Company, if it so agrees, at places where notices to employees are customarily posted (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.