Upholsterers Local 406 (Boyertown Casket)

UPHOLSTERERS LOCAL 406 (BOYERTOWN CASKET) Upholsterers International Union of North America, AFL-CIO, Local Union 406 and Boyertown Casket Company. Case 4-CB-5004 21 July 1986 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND STEPHENS On 7 January 1986 Administrative Law Judge Walter J. Alprin 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, Upholsterers International Union of North America, AFL-CIO, Local Union 406, Boyertown, Pennsylvania, its of- ficers, agents, and representatives, shall take the action set forth in the Order. 1 The proper spelling of the name of the Respondent 's steward re- ferred to in the judge's decision is "Susan Mock." Judith I. Katz, Esq., for the General Counsel. Aaron M. Matte, Esq., of Allentown, Pennsylvania, for the Respondent. DECISION WAITER J. ALPRIN, Administrative Law Judge. This matter involves an alleged threat and attempt by the Up- holsterers International Union of North America, AFL- CIO, Local Union 406 (Union) to cause the Boyertown Casket Company (Employer) to discriminate against and discharge employees for their failure to belong to the Union, in violation of Section 8(bx1XA) and (2) of the National Labor Relations Act. On the charge filed by the Employer on 22 February 1985,1 the complaint issued on 5 April. Hearing was held before me at Philadelphia, Pennsylvania, on 2 July, and the parties were authorized to file briefs. On the entire record,2 including the briefs, and from my observation of the witnessess, I make the following 1 All dates are in 1955 unless otherwise indicated. n The General Counsel's unopposed motion to correct the transcript is granted. FINDINGS OF FACT 1. BACKGROUND AND JURISDICTION 1227 The Employer, a Pennsylvania corporation, manufac- tures burial caskets at its plant in Boyertown, Pennsylva- nia. During the past year, in the course and conduct of its business operations, it sold and shipped caskets valued in excess of $50,000 directly to points outside the Com- monwealth of Pennsylvania . It is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union, a labor organization within the meaning of Section 2(5) of the Act, has been the exclusive bargain- ing agent of the Employer's employees for a long period. From 26 October 1984 through 16 January 1985, the Union engaged in an economic strike against the Em- ployer. The bargaining agreements in effect prior to and following the strike required, inter alia , that "all employ- ees covered by this Agreement ... shall as a condition of employment, become members of the Union and shall maintain their membership in good standing with said Union during the term of this Agreement as a continuing condition of employment."s They both also provided'' for employer checkoff of "membership dues, assessments and, where applicable, an initiation fee." During the course of the strike, Jody L. Becker crossed the picket line on 3 January and at other times. On 7 January he sent the Union a written resignation. No dues were checked off during the strike , but at the conclusion of the strike, when payment of dues was rein- stituted, the Employer deducted weekly dues for Becker of approximately $12.75, and included his dues in its single payment to the Union for each period covering all employees. Immediately or shortly after receipt of total checked-off dues, the Union drew a check to Becker in the amount of dues checked off for him during that period and delivered it to him. Becker has not cashed any of the checks. In addition to dues, $4 per week was deducted from Becker's pay for health insurance on de- pendentsa and paid over to the Union with the deduc- tions for all other employees. The health insurance, though administered by the Union's health and welfare fund, covers all "employees" and is not restricted to union members. Becker is still employed by the Employ- er. The Union made no refunds of the insurance deduc- tions paid it for Becker. Keith R. Hite also crossed the picket line to return to work on 17 December 1984. The following day he sub- mitted his resignation to the Union, which included the phrase, "If required, I will continue to tender my dues as required by law." Shortly thereafter Hite phoned the union president, offering to honor the picket line if al- lowed to revoke his resignation. The offer was accepted, but when Hite phoned back to ask for written confirma- tion, he was told that he could not revoke his resigna- tion. Union dues for Hite were checked off and deducted from his pay and turned over to the Union just as Beck- Art. 1.3 of each agreement. 4 Art. 3 of each agreement 5 Employees' health insurance was paid for in full by the Employer. 280 NLRB No. 134 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er's were, but Hite later cashed the dues refund checks given him by the Union. Hite is no longer employed by the Employer. II. THE UNFAIR LABOR PRACTICES A. Processing Grievance and Attempt to Cause Discharge On 17 January an employee filed a grievance, also signed by Sue Mott as steward , complaining of having been "bumped" by Becker, on the ground that Becker had resigned from the Union and thereby forfeited his se- niority. On 18 January the grievance was denied by the foreman, who noted: Employee Becker is employed by Boyertown Casket Company and enjoys all conditions of the Collective-Bargaining Agreement. On 24 January Mott processed the grievance furthers and on 2 April, Robert Wiedner, the Local's chief stew- ard, noted: "Hold pending Labor charges being filed." On 14 February counsel for the Union sent a letter to the Employer, stating: Pursuant to Article I, Mutual Cooperation and Col- lective Bargaining, Section 3 of the Collective Bar- gaining Agreement between the Company and the Union, it is my understanding that three (3) employ- ees who are working in the plant have completed the thirty (30) day probation period and are no longer members of the Union. These employees should be dismissed from their jobs immediately. They are: Keith Hite, Keith Klein and Jody Becker. If this is not done within the next ten (10) days, the Union will have to pursue further legal action. Counsel for the Employer responded on 22 February, denying the demand and noting that it was contempora- neously filing charges with the Board. B. Threats of Reprisal On 13 February Becker was summoned to a meeting by Steward Mott, and there, before all the union mem- bers, was ceremoniously given the first of the refund checks from the Union. Mott "explained" to him that be- cause of his resignation he had lost his union status and all rights, and stated that though the Union would take him back as a member, his seniority rights were unalter- ably lost. Mott asserted that she never threatened or at- tempted to intimidate Becker, but that she merely gave the above explanation, and stated that union members should not harass Becker and, in response to a question from another union member, said that the "Union will take care of this through legal process," referring to a Board proceeding. When Hite was given his first check "refunding" the deducted union dues, he asked his steward what the meaning of the refund was and was told, "You know what happened to your brother." Hite's brother had 8 Her handwritten note (Jt. Exh. 6) is not legible. worked for the Employer, but was fired for excession ab- senteeism. III. DISCUSSION Section 8(bXl)(A) of the Act declares it to be an unfair labor practice to restrain or coerce employees in the exercise of the rights guaranteed by Section 7, "Pro- vided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein"; Section 8(bX2) further declares it to be an unfair labor practice for a labor organization to seek to or cause an employer to "discriminate against an employee with re- spect to whom membership . . . has been denied or ter- minated on some ground other than his failure to tender the periodic dues . . . uniformly required as a condition of acquiring or retaining membership." Thus, while resignation from a labor organization in which a union-security agreement with the employer exists does not relieve an employee from his financial ob- ligation as a dues paying "financial core" member, nei- ther the labor organization nor the employer can disci- pline the employee for his resignation or refusal to par- ticipate in other union activities.? Union membership, "as a condition of employment, is whittled down to its finan- cial core."s The Board, with support from the courts, has in numerous instances found violations of Section 8(b)(l)(A) and (2) when labor organizations sought the discharge or other disciplining of employees whose dues were tendered to but refused by the labor organization.9 In short, full union membership, beyond tender or pay- ment of initiation fees and dues, cannot be a condition of employment, even where a union-security agreement exists with the employer. The Union's processing of a grievance against Becker and the attempt to have him discharged constitute prohibited unfair labor practices, as does the coercion of Hite by the misstatements made to him before the assembled workers and the thinly veiled threat when he was given his first "dues refund" check. CONCLUSIONS OF LAW 1. Upholsterers International Union of North America, AFL-CIO, Local Union 406 is a labor organization within the meaning of Section 2(5) of the Act. 2. Boyertown Casket Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By seeking the discharge of, and threatening the em- ployment and seniority rights of, nonunion employees who by reason of the union-security clause in the collec- tive-bargaining agreement continued to pay union dues, the Respondent Union engaged in unfair labor practices in violation of Section 8(bx1XA) and (2) of the Act. 7 Union Starch & Refining Co., 87 NLRB 779 (1949), enfd. 186 F.2d 1008 (7th Cir. 1951), cert denied 342 U.S 815 (1951). 8 NLRB V. General Motors Corp., 373 U.S 734, 742 (1963); see also Pat- tern Makers League v. NLRB, 473 U.S. 95 (1985) 8 Electrical Workers IBEW Local 3 (Mulvihill Electric), 266 NLRB 224 (1983), enfd. 742 F 2d 1438 (2d Cir. 1983); AMR, Inc., 247 NLRB 231 (1980}, Professional Engineers Local 151 (General Dynamics), 272 NLRB 1051 (1984). UPHOLSTERERS LOCAL 406 (BOYERTOWN CASKET) 4. The foregoing unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, I recommend that it be ordered to cease and desist therefrom and to take certain affirmative action neces- sary to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- edio ORDER The Respondent, Upholsterers International Union of North America, AFL-CIO, Local Union No. 406, its of- ficers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Boyertown Casket Company or any other employer to discharge, reduce se- niority, or otherwise discriminate against any employee because he or she resigns from union membership but continues to tender dues as required by a valid union-se- curity agreement. (b) Threatening employees with discharge or loss of seniority or otherwise discriminating against any employ- ee because he or she resigns from union membership but continues to tender dues as required by a valid union-se- curity agreement. (c) 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 Boyertown Casket Company, in writing, that the Union is withdrawing its request that Jodie L. Becker and Keith R. Hite be discharged or lose seniority because they resigned from the Union so long as they continue to tender dues as required by a valid union-se- curity agreement. (b) Rescind the seniority grievance against Jodie Becker based on his resignation from the Union while continuing to tender dues required by the union-security agreement. (c) Post at its business offices and meeting places at the Boyertown Casket Company copies of the attached 10 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. 1229 notice marked "Appendix." t t Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (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. 11 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT threaten employees with discharge or loss of seniority or otherwise discriminate against any employee who resigns from union membership but con- tinues to tender dues as required by a valid union-securi- ty agreement. WE WILL NOT cause or attempt to cause Boyertown Casket Company, or any other employer, to discharge, reduce seniority, or otherwise discriminate against any employee because he or she resigns from union member- ship so long as he or she continues to tender dues as re- quired by a valid union-security agreement. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their right to engage in con- certed or union activities, or to refrain therefrom. WE WILL notify Boyertown Casket Company in writ- ing that we are withdrawing our request that Jodie L. Becker and Keith R. Hite be discharged or lose seniority because they resigned from union membership so long as they continue to tender dues as required by a valid union-security agreement. UPHOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA, AFL- CIO, LOCAL UNION 406