Graphic Communications District Council No. 2, International Graphic Communications Union, Afl--Cio

GRAPHIC COMMUNICATIONS DISTRICT COUNCIL 2 (DATA DOCUMENTS) 365 Graphic Communications District Council No. 2, International Graphic Communications Union, AFL-CIO and Ray Cole, Division Manager Data Documents, Inc. Case 21-CB-8815 31,January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 12 September 1985 Administrative Law Judge William J. Pannier III issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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, and conclusions' and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Graphic Communications District Council No . 2, Interna- tional Graphic Communications Union, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order. 1 We find it unnecessary to pass on the judge's dictum in fn. 5 of his decision Frank M. Wagner, for the General Counsel. Deane Western, of Norwalk, California, for the Respond- ent. Terry E. Sanchez (Munger, Tolles & Rickershauser), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge. The parties to this proceeding executed a stipulation for submission to an administrative law judge. In that stipu- lation they agreed that no hearing need be held and, fur- ther, that the entire record should consist of a stipulation of facts with attached exhibits. Based on that record, I make the following FINDINGS OF FACT 1. The original charge was filed on 4 April 1984 and was served on the following day. The first amended charge was filed on 17 April 1984 and also was served on the following day. On 31 July 1984 the Acting Re- gional Director for Region 21 of the National Labor Re- lations Board (the Board) issued a complaint and notice of hearing. That complaint alleged that violations of Sec- tion 8(b)(1)(A) and (2) of the National Labor Relations Act had occurred. 2. At all times material, Data Documents, Inc. (the Employer) has been a Nebraska corporation and has op- erated a facility at 17011 East Green Drive, City of In- dustry, California, where it manufactures business forms. In the normal course and conduct of those operations, the Employer annually sells and ships goods and prod- ucts valued in excess of $50,000 directly to customers lo- cated outside the State of California. Therefore, at all times material the Employer has been an employer en- gaged in,commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. At all times material, Graphic Communications Dis- trict Council No. 2, International Graphic Communica- tions Union, AFL-CIO (the Union or Respondent) has been a labor organization within the meaning of Section 2(5) of the Act. 4. Following a representation election in which Re- spondent received a majority of the ballots cast, on 8 May 1978 the Regional Director for Region 21 certified Respondent as the exclusive collective-bargaining repre- sentative of all employees in the following appropriate bargaining unit: All production and maintenance employees includ- ing truck drivers employed by the Employer at its facility located at 17011 East Green Street, City of Industry, California; excluding all other employees, office clerical [employees], guards, professionals em- ployees and supervisors as defined in the Act. Since that date, Respondent has represented a majority of the employees in that bargaining unit and, by virtue of Section 9(a) of the Act, has been the exclusive represent- ative of all unit employees for purposes of collective bar- gaining concerning rates of pay, wages, hours, and other terms and conditions of employment. 5. Respondent and the Employer entered into a collec- tive-bargaining contract, effective by its terms from 1 October 1981 through 30 September 1983.1 Article 4 of that contract provided that employees who were already members or who became members of Respondent during the contract's term "shall maintain [their] membership as a condition of continued employment for the life of the Agreement." The contract also contained a checkoff pro- vision. To the extent pertinent here, it obligated the Em- ployer "to deduct monthly Union dues" of employees who had executed written assignments of authorizations for those deductions. Under the checkoff provision, as- signments, or authorizations: ... shall be irrevocable for the period of one (1) year from the date of delivery thereof to the [Em- ployer] or until the termination of the collective bargaining agreement between the [Employer] and, ' Unless stated otherwise, all dates occurred in 1983 278 NLRB No. 52 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Respondent] which is in force at the time of deliv- ery . . . whichever occurs sooner. The provision continued on to specify that ... assignments or authorizations would automati- cally renew and be irrevocable for the shorter of successive one-year periods or, alternatively, the period of each successive contract, unless written notice is given by the employee to the [Employer] and [Respondent] not more than twenty (20) days and not less than ten (10) days prior to the expira- tion of each period of one (1) year or each applica- ble collective bargaining agreement between the [Employer] and [Respondent] whichever occurs sooner... . In this connection, the Employer's obligation to Re- spondent was recited in a proviso to the checkoff provi- sion: the Employer "will continue to deduct monthly membership dues from the pay of each employee for whom it has on file an unrevoked authorization for check-off of dues form." 6. On 30 September the 1981-1983 collective-bargain- ing contract expired. Its terms were not extended. As a result, a hiatus occurred until 30 November when agree- ment was reached on the terms of a successive contract. That contract contained union-security and checkoff pro- visions that are identical to the ones, described above, in the 1981-1983 contract. 7. In September, Douglas Banchak, Ronald Phillip Miller, and Victor Vidaurri had been employed by the Employer and had been members of Respondent. On un- listed dates during that month, each of them gave writ- ten notice to Respondent and the Employer that he was resigning membership in Respondent and, further, was revoking his agreement to have dues deducted from his earnings, effective upon expiration of the 1981-1983 con- tract. None of them tendered dues to Respondent after September. 8. On 26 March 1984 Respondent sent letters to Ban- chak, Miller, and Vidaurri, requesting payment of dues and threatening to seek the discharge of anyone who failed to comply with that request. When they failed to make the requested payments, Respondent wrote to the Employer on 9 April 1984 requesting that Banchak, Miller, and Vidaurri be discharged for failure to maintain membership in good standing in Respondent. The Em- ployer had not complied with that request by the time that the stipulation had been executed. Anaylsis Section 7 of the Act guarantees employees the right to refrain from union activities, including the right to re- frain from union membership.2 Sections 8(a)(3) and 2 Sec 7 of the Act provides: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected 8(b)(2) of the Act guarantee that employees will be pro- tected against employment discrimination intended to en- courage membership in any labor organization.3 Howev- er, these statutory guarantees are not unlimited. Rather, they are subject to "an agreement requiring membership in a labor organization as a condition of employment by the tender of periodic dues and initiation fees uniformly required, as authorized in Section 8(a)(3) of the Act." Auto Workers (John Paulding), 137 NLRB 901, 903-904 (1962). That limitation is embodied in the first proviso to Section 8(a)(3) of the Act.4 Because that proviso "fol- lows grammatically a prohibition of discrimination .. . [t]hese words of the exception must have been carefully chosen to express the precise nature and limits of permis- sible [discrimination]." NLRB v. Electric Vacuum Cleaner Co., 315 U.S. 685, 694-695 (1942). Consequently, the pro- viso's grant of authority to employers and labor, organi- zations "must be literally observed," Colonie Fibre Co., 71 NLRB 354, 355 (1946), enfd. 163 F.2d 65 (2d Cir. 1947), and "strictly limited [in its restriction of employ- ees'] normal exercise of their Section 7 rights to refrain from membership in or support of a union." Peoria News- paper Guild Local 86 (Peoria Journal Star), 248 NLRB 88, 91 (1980). Identical union-security provisions appear in both the 1981-1983 contract and the current one between Re- spondent and the Employer. Nothing in those provisions obligates employees to obtain membership in Respondent as a condition of continued employment. Rather, the sole obligation imposed is that employees remain members for the contract's duration if they have been members at its commencement or have become members during its term. A maintenance of membership obligation is permit- ted by the first proviso of Section 8(a)(3) of the Act. "The maintenance-of-membership provision . . . serves to a limited degree the interest of union security which Congress recognized in the first proviso of Section 8(a)(3)." Victoria Horwath v. NLRB, 539 F.2d 1093, 1100 (7th Cir. 1976), cert. denied 430 U.S. 940 (1977). Yet, as is true of all union-security provisions, maintenance-of- membership requirements are subject to literal observa- by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) a Sec. 8(a)(3) of the Act provides that it is an unfair labor practice for an employer, "by discrimination in regard to hire or tenure of employ- ment or any term or condition of employment to encourage or discour- age membership in any labor organization " Sec 8(b)(2) of the Act pro- vides that it is an unfair labor practice for a labor organization, "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) ... 4 The proviso reads. That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) to re- quire as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9(a), agreement when made, and (ii) unless following an election held as provided in section 9(e) within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such elec- tion have voted to rescind the authority of such labor organization to make such an agreement GRAPHIC COMMUNICATIONS DISTRICT- COUNCIL 2 (DATA DOCUMENTS) tion and to strict limitation because they are exceptions to the basic statutory right to refrain from union mem- bership. An almost 2-month hiatus occurred between 30 Sep- tember, when the 1981-1983 contract expired, and 20 November, when agreement was concluded on the terms of the current contract. During that hiatus, no union-se- curity clause could be in effect, absent express agreement of the parties. "Although most terms and conditions of employment continue during the hiatus period after the expiration of a collective-bargaining agreement, a union- security clause does not survive absent a contractual pro- vision continuing the agreement." Trico Products Corp., 238 NLRB 1306, 1308 (1978). Accord: Peoria Newspaper Guild, supra, 248 NLRB at 90 fn. 6. Consequently, during the almost 2-month hiatus between contracts, the Employer's employees were relieved of the union-securi- ty obligation imposed by the maintenance-of-membership provision and "nothing in the Act [gave Respondent] the right to seek to enforce [the union-security obligation] by threat of discharge." NLRB v. Auto Workers Local 899, 297 F.2d 272, 275 (1st Cir. 1961). Of greater importance to the situation presented here, employees are permitted to resign from union member- ship during a hiatus between contracts containing main- tenance of membership provisions. "[The] obligation to comply with the union-security clause in issue expired along with the expiration of the contract; hence [they were] free to withdraw from union membership at that juncture." Chemical Workers Local 112 (American Cyana- mid), 237 NLRB 864, 865 (1978). This is so even where the succeeding contract's union-security clause is stated to be retroactive to the terminal date of the prior con- tract. For, "to construe the proviso [to Section 8(a)(3)] as also permitting contracts which require membership in the past would bring about the very result condemned by the Supreme Court in Wallace Corporation v. NLRB, 323 U.S. 248." Colonie Fibre Co., supra. See also NLRB v. Eclipse Lumber Co., 199 F.2d 684, 685 (9th Cir. 1952); Namm's Inc., 102 NLRB 466, 467 (1953). Consequently, a resignation from membership during a hiatus between contracts would not be nullified by subsequent negotia- tion of a contract containing a maintenance-of-member- ship provision that, by its terms, purports to be effective retroactively. Banchak, Miller, and Vidaurri each resigned from membership before the parties reached agreement on the terms of the current contract. Aside from the mainte- nance-of-membership provision itself, there is no evi- dence of any restrictions imposed on employees' ability to resign from membership in Respondent. Accordingly, "the common law doctrine on withdrawal from volun- tary associations is apposite .. . [and] a member . . . is free to resign at will." Communications Workers v. NLRB, 215 F.2d 835, 838 (2d Cir. 1954). Accord: Ma- chinists Lodge 751 (Boeing), 173 NLRB 450, 452 (1968). True, each of these three resignations actually had been sent and apparently received while the 1981-1983 con- tract still had been in effect. However, all three resigna- tions had been sent during the last month of that con- tract. More important, all of the resignations stated that they were effective upon expiration of the then current 367 contract. While a membership resignation is not effective during the term of a contract with a maintenance-of- membership provision, it is settled that resignations sub- mitted during a contract's term will be valid where they are to be effective on expiration of that contract.5 See New Jersey Telephone Co., 106 NLRB 1322 (1953), enfd. 215 F.2d 835 (2d Cir. _ 1954); NLRB v. Auto Workers Local 899, 297 F.2d 272 (1st Cir. 1961). That result, of course, is consistent both with the literal terms of the maintenance-of-membership provision in this case and, more importantly, with the literal observation and strict construction that must be accorded to the first proviso exception to the basic statutory guarantees of the right to refrain from union membership and of the right to be free from employment discrimination based 'on union membership. In sum, the current contract between Respondent and the Employer requires only that members of Respondent maintain their membership during the contract's term. Banchak, Miller, and Vidaurri resigned from membership in Respondent before the current contract had become effective. Nothing in the record shows that' those resig- nations had been improper or ineffective. In these cir- cumstances, Respondent violated Section 8(b)(1)(A) and (2) of the Act by demanding that the Employer dis- charge those three employees for having failed to main- tain membership in good standing by payment of dues after 30 September. Marlin Rockwell Corp., 114 NLRB 553, 555-556 (1955). Nor is Respondent's position enhanced by an argument that its discharge demands were intended solely as a ve- hicle for collecting money owed as a result of the check- off authorizations signed by Banchak, Miller, and Vi- daurri. Of course, "resignation from [a] [u]nion does not constitute revocation of dues checkoff authorizations." American Nurses' Assn., 250 NLRB 1324 fn. 1 (1980). This is so because, "union security and dues checkoff are distinct and separate matters." Accord: NLRB v. Atlanta Printing Specialties, 523 F.2d 783, 786 (5th Cir. 1975); Shen-Mar Food Products, 221 NLRB 1329, 1330 (1976), enfd. 557 F.2d 396 (4th Cir. 1977). Union security per- tains to a contract between an employer and a labor or- ganization that subjects employees to "the obligation of paying dues as a condition of employment." Peoria News- paper Guild, supra. By contrast, "a dues-checkoff authori- zation, or wage assignment . . . is ,a contract between an employee and his employer . . . ." Machinists Local 2045 (Eagle Signal), 268 NLRB 635, 637 (1984); Trico Products Co., supra, 238 NLRB at 1309, "designed as a provision for administrative convenience in the collection of union dues." NLRB v. Atlanta Printing Specialties, supra. "Checkoff is a means by which employees voluntarily assign a portion of their wages to a union in order to pay their dues and other obligations to the union." Frito-Lay, Inc., 243 NLRB 137 (1979). Because of the distinction between union security and checkoff, a revocation of the latter must "be accomplished during,the time periods set s However, such a resignation will not be effective if there is no hiatus between contracts and, thus, where there is "unmarred continuity" be- tween them. See National Lead Co., 106 NLRB 545, 548 (1953) Of course, that type of situation is not present here 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out in the checkoff authorization itself, even during the hiatus between contracts." Steelworkers Local 7450 (Asarco Inc.), 246 NLRB 878, 882 (1979). The checkoff authorizations signed by Banchak, Miller, and Vidaurri are not included in the record. As set forth in Findings of Fact 5, supra, the 1981-1983 con- tract provided that checkoff authorizations could be re- voked on their anniversary dates or during the period 20 to 10 days before expiration of the contract. No evidence has been presented that would support a finding that the September revocations by Banchak, Miller, and Vidaurri had occurred either on the anniversary dates of their checkoff authorizations or between 10 and 20 September. Thus, on this record, it has not been shown that these three employees' validity revoked their checkoff authori- zations.6 However, even if they had not done so, Respondent was not free to seek their terminations because it had not received the checked-off moneys. As set forth above, there is a basic statutory guarantee that employees will not be subjected to employment discrimination to en- courage union membership. Section 8(a)(3)'s first proviso specifies an exception or limitation to that guarantee. But that exception applies only to agreements between em- ployers and labor organizations that require union mem- bership as a condition of employment-to union-security agreements . "The dues checkoff section of the Act [is] far from being a union security provision," NLRB v. At- lanta Printing Specialties, supra, and so far as the record shows, "the dues checkoff herein does not, in and of itself, impose union membership or support as a condi- tion required for continued employment." Shen-Mar Food Products, supra, 221 NLRB at 1330. In these cir- cumstances, enforcement of a checkoff authorization through employment discrimination would not be per- mitted by the first proviso to Section 8(a)(3) of the Act and would be contrary to the literal observation and strict limitation that must be followed in interpreting and applying that proviso. Therefore, even if Respondent's discharge demands had been based exclusively on failure to receive moneys owed it under the checkoff authoriza- tions signed by Banchak, Miller, and Vidaurri, those de- 6 In some situations, the Board has examined the language of the checkoff authorizations and has concluded that the words demonstrate that union membership was a quid pro quo for checkoff. Thus, resigna- tion from membership served to revoke checkoff authorizations, as a matter of law, in the circumstances of those cases. See Machinists Local 2045 (Eagle Signal), supra; Carpenters San Diego Council (Campbell Indus- tries), 243 NLRB 147, 149 (1979); Steelworkers Local 7450 (Asarco Inc.), supra But here, the authorizations are not part of the record and, accord- ingly, it is not possible to pursue the analysis followed by those' cases. The `1981-1983'contract's checkoff provision does speak in the terms of checkoff being intended for "monthly Union dues" and occasionally the Board has mentioned contractual language as a factor in determining whether membership was quid pro quo for checkoff, particularly where, as here, the union-security clause did not provide for financial core merii- bership See, e g , Steelworkers Local 7450 Id Machinists Local 2045, ibid. However, in those cases, the Board's examination of the contract lan- guage has been conducted, in support of its analysis of the language of the checkoff authorizations or assignments signed by the employees I have located no case where the Board has relied solely on the former and has wholly ignored' the latter's language in determining whether membership was a quid pro' quo for checkoff In light of my resolution in this case, there is no need to determine whether contractual language, of, itself, could serve to establish that equation mands are not permitted by Section 8(a)(3)'s first proviso nor by any other provision of the Act. Further, such de- mands have a natural tendency to encourage union mem- bership by discouraging employees from exercising their contractual right to resign from membership and, con- comitantly, their statutory right to refrain from union membership without adverse effect on their employment. Atlanta Printing Specialties, 215 NLRB 237, 238 fn. 4 (1974), enfd. 523 F.2d 783 (5th Cir. 1975). For, to allow checkoff authorizations to be' used as vehicles for impair- ing employment status when there is no contractual agreement compelling membership obligations, would be to allow labor organizations to accomplish by indirection that which Section 8(a)(3)'s first proviso does not permit them to accomplish directly. CONCLUSIONS OF LAW 1. Data Documents, Inc. is an employer within the meaning of Section 2(2) of the Act, engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Graphic Communications District Council No. 2, International Graphic Communications Union, AFL- CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By attempting to cause Data Documents, Inc. to discriminate against certain employees in violation of Section 8(a)(3) of the Act, Graphic Communications Dis- trict Council, No. 2, International Graphic Communica- tions Union AFL-CIO, has violated Section 8(b)(2) and (1)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Graphic Communications District Council No. 2, International Graphic Communications Umon, AFL-CIO has engaged in certain unfair labor practices, I shall recommend than it be ordered to cease and desist therefrom and,, further, that it take certain af- firmative action to effectuate the policies of the Act. On the foregoing findings of fact and conclusions of law and based on the entire record, and pursuant to Sec- tion 10(c) of the Act, I issue the following recommend- ed7 ORDER Graphic Communications District Council No. 2, International Graphic Communications Union, AFL- CIO, City of Industry, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Attempting to cause Data Documents, Inc. to dis- charge or otherwise discriminate against any employee 7 If no exceptions are filed as provided by Sec, 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses GRAPHIC COMMUNICATIONS DISTRICT COUNCIL 2 (DATA DOCUMENTS) 369 when such discharge or discrimination would be in viola- tion of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coerc- ing employees in the exercise 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. (a) Notify Data Documents, Inc., in writing, that it has no objection to the employment of Douglas Banchak, Ronald Phillip Miller, or Victor Vidaurri, and send a copy of said letter to each one of them, (b) Post in its business office and meeting halls copies of the attached notice marked "Appendix."8 Copies of the notice, on forms to be provided by the Regional Di- rector for Region 21, shall, after being duly signed by an authorized representative of Graphic Communications District Council No . 2, International Graphic Communi- cations Union AFL-CIO, be posted immediately upon receipt thereof and be maintained for 60 consecutive days thereafter, in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by it to ensure that the no- tices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the Regional Director for Region 21 for forwarding to Data Documents, Inc. for information and, if it is willing, for posting by it at all locations where notices to its employ- ees are customarily posted. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps ' the Re- spondent has taken to comply. APPENDIX- NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To ALL MEMBERS, OFFICERS , REPRESENTATIVES, AND AGENTS, AND TO ALL EMPLOYEES OF DATA DOCUMENTS, INC. WE WILL NOT cause or attempt to cause Data Docu- ments, Inc. to discharge or otherwise to discriminate against any of you when such discharge or discrimina- tion would be in violation of, Section 8(a)(3) of the Act. WE WILL NOT in any like of related manner restrain or coerce you in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may lawfully be affected by an agreement requir- ing membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. a 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 " GRAPHIC COMMUNICATIONS DISTRICT COUNCIL No. 2, INTERNATIONAL GRAPHIC COMMUNICATIONS UNION , AFL-CIO