Pacific Northwest Newspaper Guild Local 82 (The Seattle Times)

902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pacific Northwest Newspaper Guild Local 82 (The Seattle Times) and Kenneth Johnston. Case 19- CB-5614 July 15, 1988 DECISION AND ORDER BY CHAIRMAN JOHANSEN AND MEMBERS BABSON AND CRACRAFT On June 30, 1987, Administrative Law Judge Jerrold H. Shapiro issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. 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. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Pacific Northwest Newspaper Guild Local 82, Seattle, Washington, its officers, agents, and representa- tives, shall take the action set forth in the Order. ' We agree with the judge's finding that the increased portion of the membership dues here did not constitute "periodic dues" within the meaning of Sec. 8(a)(3) of the Act In so doing, however, we find it un- necessary to pass on the judge 's discussion of the standard to be applied in determining whether the purposes for which dues payments are ex- pended will cause such payments to fall outside the definition of "period- ic dues" as that term is used in Sec. 8(a)(3) Melvin Kang, Esq., for the General Counsel. Hugh Hafer, Esq. (Hafer, Price, Rinehart & Schwerin), and David S. Barr, Esq. (Barr & Peer), for the Respondent. Kathleen A. Anamosa, Esq. (Davis, Wright & Jones), for the Charging Party. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. The hearing in this case, held 1 April 1987, is based on an unfair labor practice charge filed 13 September 1985 by Kenneth Johnston (Johnston)' against Pacific Northwest Newspaper Guild Local 82 (Respondent), and on a com- plaint issued 15 August 1986 by the General Counsel of the National Labor Relations Board (Board), alleging that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the ' Johnston filed an amended charge and a second amended charge on 16 September 1985 and 14 August 1986, respectively National Labor Relations Act (Act), by threatening to cause The Seattle Times to discharge its employees Johnston and Tonya King (King) pursuant to the union- security agreement between Respondent and The Seattle Times because Johnston and King "refused to pay an as- sessment for Respondent's strike fund and monies to build a new headquarters building in Washington, D.C., and for reasons other than the employees' failure to tender periodic dues and the initiation fees uniformly re- quired as a condition of acquiring or retaining commis- sion membership in Respondent." Respondent filed an answer and an amended answer denying the commission of the alleged unfair labor practices and affirmatively al- leging that the proceeding was barred by the second pro- viso of 29 U.S.C. § 41l(a)(4) and that the maintenance of the proceeding constitutes an abuse of the Board's proc- esses because The Seattle Times directly and through its agent, Davis, Wright & Jones, effectively, controls Charging Party Johnston in his "employee" and litigant status. On the entire record, from my observation of the de- meanor of Charles Perlik, the only witness, and having considered the posthearing briefs, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER INVOLVED The Seattle Times is a State of Washington corpora- tion, with an office and place of business in Seattle, Washington, where it is engaged in the business of news- paper publishing, distribution, and sales. During the 12-month period immediately prior to the issuance of the complaint, The Seattle Times derived gross revenues in excess of $200,000, held membership in or subscribed to various interstate news services, includ- ing the United Press International and Associated Press, published various nationally syndicated features, includ- ing Doonesbury, and advertised various nationally sold products, including Panasonic video cassette recorders and Ford Motor Company automobiles. The Seattle Times is, and has been at all times materi- al, an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Pacific Northwest Newspaper Guild Local 82 is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence Respondent is an affiliate of The Newspaper Guild, AFL-CIO (Guild), an International Union, whose princi- pal office is located in Washington, D.C. Respondent's dues structure is established by article XVII of the Guild's constitution. In 1985 article XVII read in perti- nent part as follows: Section 2(b). Monthly dues. The monthly dues fixed and maintained by Locals . . . shall not be 289 NLRB No. 113 NEWSPAPER GUILD LOCAL 82 (SEATTLE TIMES) less than the Minimum Dues Schedule set forth in Section 2(c) of this Article. In addition, the monthly dues of each member shall include the amounts set forth in Section 2(d) of this Article. Section 2(c). The Minimum Dues Schedule shall be either that listed under Table A: [sets out a mini- mum dues schedule under Table A for various wage levels and also includes a Table B] or five percent of one week's regular weekly compensation up to the maximum required by the above schedules, plus $1.50, or a dues schedule which yields at least an equivalent total dues income. Based on 1985 Convention action, following ap- proval by the general membership by a Guild wide referendum to be held after January 1986, the fore- going paragraph shall be changed to read: "or a percentage of one week's regular weekly compensa- tion up to the maximum required by the above schedules, as follows: 5 percent, plus $1.50, through and including June 30, 1986; and 6 percent, effec- tive July 1, 1986; or a dues schedule which yields at least an equivalent total dues income." Section 2(d). The monthly dues of each member shall include, for all months except when The Newspaper Guild is in a reduced dues period as de- fined in Section 2(e) of this Article, and except for the one-month period referred to in the second paragraph of Subsection (e) of this Section, the dif- ference between the amounts set forth under Table A and Table B of Section 2(c) of this Article.2 In lieu of as an alternative to the foregoing, the Mini- mum Dues of each member shall include 3.2 per- cent of one week's regular weekly compensation if paid monthly, or 0.745 percent of one week's regu- lar weekly compensation if paid weekly, up to the maximum required by the foregoing. Section 2(e). Reduced Dues Period. Except for the one-month period referred to in the second paragraph of this Subsection, The Newspaper Guild will be in a reduced dues period whenever the Inter- national Defense Fund reaches $6 million and will remain in a reduced dues period thereafter until the International Defense Fund is below $4,500,000. No accounts receivable shall be counted in calculating the dollar amounts referred to in this Subsection (e). The Secretary-Treasurer shall notify all Locals when TNG is in a reduced dues period, and the dues specified in Section 2(d) shall not be payable during said period. When the dollar amounts in the International De- fense Fund reach $6 million for the first time fol- lowing August 1, 1985, then for the ensuing month the monthly dues of each member shall include dues equal to the rates required under Subsection (d) of this Section, with the income produced thereby to be used exclusively to fund TNG's severance pay li- ability to its staff. 2 Although the language is ambiguous it is undisputed that sec 2(d) dues are computed by adding the difference between the amounts set forth in Tables A and B to the amount of the sec 2(c) dues set forth in Table A 903 Also relevant are sections 7(c) and (d), sections 8(a) and (b), and sections 13 and 14 of article XVII, which read as follows: Section 7(c). Out of every per capita payment under (a)(1) [referring to the per capita tax the local unions are required to remit to the Guild from the dues, initiation fees and assessments collected from the membership], less $1.35, 15 percent shall be de- posited in the International Defense Fund effective May 1, 1982, through January 31, 1987.. . Section 7(d). The entire amount of every per capita payment under (a)(2) shall be deposited in the International Defense Fund.3 Section 8(a). An International assessment is hereby levied on each member for the months of July and August 1984 in an amount equivalent to that which would be added to a member's monthly dues, pursuant to Section 2(d) of this Article, for months when TNG is not in a reduced dues period. Any constitutional provision to the contrary not- withstanding, this assessment shall be deposited to a special account of the General Fund. Funds from the special account shall be used for the exclusive purpose of organizing and attendant expenses. Members shall not be required to pay both the assessment and Section 2(d) dues for the same month(s). If in July and/or August 1984, TNG is not in a reduced dues period, amounts collected by TNG under Section 7(a)(2) of this article for either or both of those months shall be deposited to the spe- cial account, rather than to the Defense Fund as per Section 7(d) of this Article. Section 8(b). The IEB or the Convention may levy an international assessment for the Defense Fund upon the membership while the Defense Fund contains 15 percent or less of its ceiling figure and after all credit lines have been exhausted in the judgment of the President and the Secretary-Treas- urer. Section 13. All funds received by The Newspaper Guild, with the exception of assessments and Inter- national Defense Fund per capita, and with the ex- ception of funds earmarked by Locals for the pur- chase of group insurance for Local members, shall be deposited to the general account. All assess- ments, Defense fund contributions and International Defense Fund per capita shall be deposited in the International Defense Fund. Funds earmarked by Locals for the purchase of group insurance shall be deposited in an insurance fund account. The three funds shall be kept in separate accounts in a bank or banks In an emergency, the IEB shall have the au- thority to transfer money between the general ac- count and the International Defense Fund, but such action shall be reported to the next Convention for specific approval 3 Sec 7(a)(2) provides that for each payment of dues specified in sec 2(d) of art XVII, the full amount shall be remitted by the local unions to the Guild 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 14. TNG funds shall be expended only for activity within the constitutional purposes of TNG. Expenditures for strike activities, for other activities of an emergency nature, and for purposes author- ized by Convention action or referendum and in the manner and subject to the limitations prescribed thereby, shall be made from the International De- fense Fund, at the direction of the IEB. Expendi- tures also shall be made from the International De- fense Fund in accordance with Section 7(g) of this Article4 . . . . Normal operating expenses and all other expenditures shall be made from the General Fund. The above-described dues structure in sections 2(c) through (e) of article XVII of the Guild's constitution, first appeared in the Guild's 1972 constitution. It was adopted as the result of action taken by the delegates to the Guild's annual convention held in the summer of 1972. The Guild's finance committee made the following report and recommendation which was adopted by the convention: When the Guild first established an International Defense Fund it was thought that the fund could be maintained at the necessary and desirable levels by diverting out of regular monthly per capita pay- ments a specified percentage, with only an occa- sional need for supplemental contributions from Guild members. Because these supplemental contri- butions were expected to be sporadic and infre- quent, they were labelled "assessments." In recent years, however, it has become evident that in order to maintain the Defense Fund at a desireable level, supplemental contributions have been required on a regular and periodic basis-nearly four years of them, in fact, starting in January 1968. Indeed, it's obvious that the contributions required to maintain the Defense Fund have become an integral and periodic part of the Guild's dues structure. In fact, it is now clear that the label "assessment" is a misnomer as applied to the International De- fense Fund contributions, and the Finance Commit- tee recommends that this convention make what- ever changes are necessary to our international Constitution to clarify those payments and recog- nize them for what they are-a periodic and inte- gral part of the regular dues structure of our union. What we are saying is that the Finance Commit- tee is urging this convention to change the words to fit the facts; we are not recommending any change in the level or frequency of dues our members are being called upon to pay or the level of reduced dues payments required constitutionally when the Defense Fund reaches two million dollars. Consistent with the finance committee's report and rec- ommendation, the Guild's constitution committee recom- 4 Sec 7(g) provides that "[i]n the event a strike or lockout results in a reduction of per capita payments that otherwise would be made to the General Fund, an amount equal to such reduction shall be transferred monthly from the International Defense Fund to the General Fund " mended that article XVII of the constitution be amended so the Guild's dues structure would be as described, supra, in sections 2(c) through (e) of article XVII of the 1985 constitution. The constitution committee's recom- mended amendment, adopted by the convention, con- tained the following preamble: Whereas the Newspaper Guild (TNG) has for many years maintained a permanent International Defense Fund and regards the continuing vitality of that Fund as essential to the interests of TNG's members; and Whereas, it was originally conceived that the Fund could be maintained at desired levels by a specific percentage of per capita, with only an occa- sional need for supplemental contributions; and Whereas, because supplemental contributions were expected to be sporadic and infrequent they were denominated "assessments"; and Whereas, in recent years it has become evident that in order to maintain the Defense Fund at de- sired levels supplemental contributions have been required on a regular and periodic basis (so that, for example, "assessments" were required for 46 con- secutive months from January 1968 to November 1971); and Whereas, it has become self-evident that the con- tributions required to maintain the Defense Fund are an integral part of TNG's dues structure, and the lable "assessments" is a misnomer; and Whereas, TNG wishes to clarify the status of these payments and to recognize them as a periodic and integral part of the regular dues structure and not as assessments. Now, therefore, it is: Resolved, that article XVII of the International Constitution shall be amended as follows: As I have found, supra, the dues structure as it appears in sections 2(c) through (e) of article XVII of the Guild's 1985 constitution has existed in that form since the Guild's 1972 convention. In 1971, prior to the adoption of this structure, article XVII read, in pertinent part, as follows: section 2(c) provided that monthly dues shall not be less than the minimum dues schedule set forth in that section; section 6(a) required the locals affiliated with the Guild to remit to the Guild, as a per capita tax, a certain percentage of the monthly dues, initiation fees, and assessments they collected from the membership; section 6(c) provided that from each per capita payment of the members' monthly dues remitted to the Guild by the locals, less 10 cents, 40 percent shall be deposited in the International defense fund and that when on or after 1 August 1971 the fund shall exceed $2 million, in the following month and thereafter, out of every said per capita payment, less 10 cents, 30 percent shall be deposit- ed to the fund; Section 7 provided that in an "emergen- cy" the Guild's executive board was empowered to levy International assessments for the International defense fund on the entire membership on the basis of members' regular weekly compensation at a rate of not more than one assessment in 1 month in accordance with a rate NEWSPAPER GUILD LOCAL 82 (SEATTLE TIMES) schedule set forth in section 7; section 7 defined an "emergency" as whenever the International defense fund fell below $2 million and further provided that when the fund reached $2 million an emergency shall also again exist whenever the fund is below $1,500,000 and would continue only until the fund reached $2 million. As was the case with the Guild's 1985 constitution, supra, the 1971 constitution provided for all assessments and Inter- national defense fund contributions and International de- fense fund per capita to be deposited in the International defense fund rather than the general fund, but in an emergency the Guild's executive board was given the au- thority to transfer money between the general account and the International defense fund, subject to the approv- al of the next convention. Also, as was the case with the 1985 constitution, supra, the 1971 constitution provided that "[e]xpenditures for strike activities, for other activi- ties of an emergency nature, and for purposes authorized by Convention action or referendum and in the manner and subject to the limitations prescribed thereby, shall be made from the International Defense Fund, at the direc- tion of the [Guild's executive board]" and that "normal operating expenses and all other expenditures shall be made from the General Fund." To sum up, the Guild historically has maintained an International defense fund which is currently financed by a percentage (15 percent) of the members' dues and by an increase in dues payments when the defense fund falls below a certain level. Prior to 1972 when the defense fund fell below a certain level as defined by the constitu- tion, the Guild's members, pursuant to the constitution, were required to pay an "assessment," if the Guild's ex- ecutive board ordered an "assessment," until the amount of money in the fund increased to the level set by the constitution. As a result of the above-described amend- ment to the constitution in 1972, this "assessment" was referred to as "dues" and became a part of the Guild's dues structure and since then, pursuant to the constitu- tion, whenever the International defense fund falls below a certain figure set by the constitution, the members are required to pay increased dues with the increased por- tion of the dues being transmitted by the locals to the Guild for deposit in the defense fund until the fund's level has been raised to the level set by the constitution, at which time membership dues are reduced to their former reduced level, as required by the constitution. Since the above-described amendment to the Guild's constitution, the Guild's members on four separate occa- sions have been required to pay the increased amount of dues for the purpose of raising the level of the Interna- tional defense fund to reach the level mandated by the constitution. During the period from 1 January 1972 until 1 April 1987, the date of the hearing in this case, the aforesaid membership dues payments, referred to by the Guild and its members as "Section 2(d) dues" or "regular dues," were made on the following dates: May 1972 through March 1973; March, April, and May 1976; September 1978 through April 1981; and August 1985 through February 1986. During the last 15 years the Guild has required its members to pay "assessments," in addition to their monthly dues, on three separate occasions: March and 905 April 1975; March and April 1977; and July and August 1984. In each instance these assessments were levied for the specific purpose of paying for the Guild's organiza- tional activities and were collected from the locals affili- ated with the Guild pursuant to the procedure described, supra, in section 8(a) of article XVII of the Guild's con- stitution, as set forth in the 1985 constitution. During the past 10 years the principal use for the funds in the Guild's International defense fund has been to pay the weekly strike benefits to striking or locked- out Guild members and to pay all the other expenses in- cidental to the strikes and lockouts involving the Guild's constituent locals, i.e., litigation expenses and salaries of the representatives assigned by the Guild to advise locals during strikes and/or lockouts. Also during a strike or lockout, money from the International defense fund is transferred to the Guild's general fund to compensate for the lower per capita payments by locals when their members are locked out or striking. In addition, the International defense fund during the past 10 years has been used to make nonstrike- or lock- out-related payments, as follows: (1) loans and grants to locals affiliated with the Guild; (2) contributions to unions not affiliated with the Guild; (3) the fees of pro- fessionals, i.e., attorneys and accountants, for labor dis- pute related cases involving affiliated locals; (4) by 1985 convention action, "2(d) dues" payments-payments nor- mally made to the International defense fund-were used to pay more than $400,000 to satisfy the Guild's sever- ance pay liability to Guild employees; (5) in 1985, the Guild's convention authorized an interest-free loan of $750,000 from the International defense fund to the Guild's general fund to be used to purchase a headquar- ters building for the Guild; (6) for a period of several years the Guild's general fund borrowed money from the Guild's International defense fund and in 1979, by con- vention action, $678,000 was owed the International de- fense fund by the general fund as the result of these loans was written off as uncollectible; and (7) administrative and miscellaneous expenses were paid from the Interna- tional defense fund, including interest on moneys bor- rowed by the Guild in emergencies, to replenish the de- fense fund and the cost of printing checks. Regarding the loans and grants made from the Interna- tional defense fund to locals for nonstrike- or lockout-re- lated purposes, the record reveals grants or loans for the following purposes: locals' legal expenses incurred in liti- gating representation and unfair labor practice cases before the National Labor Relations Board; locals' legal expenses incurred in prosecuting contractual grievances before arbitrators; locals' legal expenses incurred in civil lawsuits; expenses incurred by a local in negotiating a na- tionwide contract, and the expenses incurred by another local whose funds were exhausted as a result of protract- ed contract negotiations; the expenses incurred by a local in hiring a bankruptcy lawyer to assist it in an effort to keep a potentially bankrupt company in business, and the further expenses incurred by that local in its effort to find a buyer for the business in question; the operating expenses of locals in emergency situations such as, in one case, when a local was without funds because an em- 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployer refused to remit its members' monthly dues and, in another case, when a local's funds were depleted by the negotiations of an initial contract and, in another case, a loan of over $200,000 to a local to restore its emergency fund to a level to enable the local to lift its members from the burden of an ongoing special dues rate which was having the effect of eroding membership levels. Regarding the Guild's contributions from the Interna- tional defense fund to other unions, the Guild contribut- ed money to support strikes by other unions including a $25,000 contribution to support the striking airline traffic controllers (PATCO), contributed to help locked-out workers represented by other unions, contributed to the campaign being waged by unions in several States against right-to-work legislation outlawing union-security agreements, and contributed $2500 to the Polish Workers Aid Fund to assist workers in Poland. Regarding the payment of $400,000 in severance pay, the record reveals that by virtue of collective- bargaining contracts with other labor organizations who represent the Guild's employees, the Guild was obligated to pay severance pay to approximately 31 or 32 of its employees who had been permanently terminated due to a reduc- tion in its staff. As described, supra, in the 1985 constitu- tion, the money used by the Guild to meet this severance pay obligation was collected from the membership in the following manner: After the International defense fund in January 1986 reached the $6 million ceiling set by the constitution, the membership paid "2(d) dues" for I more month for the sole purpose of raising the necessary amount of money to satisfy the Guild's severance pay obligation. This money, more than $400,000, was not de- posited in the International defense fund, but was depos- ited in a separate trust fund maintained solely for the severance pay moneys. Regarding the 1985 authorization of an interest-free loan of $750,000 to be used to purchase a headquarters building for the Guild, the record reveals the Guild spends a substantial sum of money renting office space and that the Guild's 1985 convention decided that eco- nomically it made more sense for the Guild to own a building rather than pay rent, so the convention author- ized the Guild to either build or buy an office building and for the defense fund to make an interest-free loan of $750,000 to the Guild for this purpose. Regarding the Guild's action in 1979 in writing off as uncollectible $678,000 which the Guild had borrowed from the International defense fund for its general fund, the record reveals that for 8 to 10 years before 1979, part of the per capita membership dues allocated to the Inter- national defense fund was never transferred from the Guild's general fund to the defense fund.5 During those years the general fund showed a deficit, so these moneys that should have been transferred from the general fund to the International defense fund were used with other 5 The record reveals that the full amount of monthly per capita dues transmitted by the locals to the Guild is placed in the general fund "for the convenience of bookkeeping purposes," and that at the end of the quarterly accounting periods the Guild's auditor directs the bookkeeper to transfer what is constitutionally required from the general fund to the International defense fund union funds to pay the day-to-day operating expenses of the Guild. This was done with the full knowledge of membership and was carried as a debt on the general fund's books of account and as an account receivable on the defense fund's books of account. In 1979 these loans totaled over $750,000. The membership, at the 1979 con- vention, decided to cancel these loans because they did not represent either a true asset or liability of the Guild. Since 1979 there have been no loans from the Guild's International defense fund to the Guild's general fund. As described in detail supra, the Guild has separate provisions in its constitution for collecting dues, includ- ing "2(d) dues," and for collecting "assessments." Con- sistent with these separate provisions, the Guild provides a receipt form to its locals, which has separate spaces for recording dues and assessments and also provides sepa- rate receipt stamps for recording dues and assessments in members' records. Likewise, the Guild's books of ac- count treat "2(d) dues" and "assessments" differently in- asmuch as all dues, including "2(d) dues" allocated to the defense fund, are listed by the Guild's accountants as Guild income in computing the Guild's net worth. As- sessments, when imposed, are separately recorded and are not included in the accountants' calculations of the Guild's net worth. As described in detail supra, the Guild's dues are a monthly obligation and the amount of the dues owed varies with members' salaries. During the last 5 months of 1985, so-called reduced dues equaled 5 percent of an individual's weekly compensation, plus $1.50, paid once a month. "Regular dues," also referred to as "2(d) dues," equaled 8.2 percent of an individual's weekly compensa- tion, plus $1.50, paid once a month. "2(d) dues" are col- lected when the reserves in the Guild's defense fund fall below $4.5 million and continued to be collected until the reserves in the defense fund reach $6 million, at which point the "reduced dues" schedule is reinstituted.6 The Guild's leadership, within the limits of their ability to estimate the International defense fund's reserves, has followed the formula in the constitution when initiating and ending "regular" dues periods on three of the four occasions when "2(d) dues" were instituted.' The record reveals, however, that it is extremely difficult, if not im- possible, for the Guild to anticipate when it will be nec- essary to impose a period of "regular" or "2(d) dues" or to predict with a degree of certainty the length of time such a period will last. The reasons for this unpredict- ability is that the basis for such decisions depends on a number of unpredictable events such as the failure of one or more of the locals to make their monthly per capita dues payments in a timely fashion, the number and length of the strikes that may occur, the number of em- ployees involved in the strikes, the Guild's inability to negotiate a loan to replenish the International defense fund, or the necessity to repay such a loan. 6 The reserve levels that trigger "2(d) dues" and "reduced dues" pen- ods have been changed periodically throughout the years by the Guild's membership at annual conventions ' The single exception involved the Guild' s decision in February 1985 to wait several months before initiating a "2(d) dues" period, despite a slightly less than $4 5 million reserve NEWSPAPER GUILD LOCAL 82 (SEATTLE TIMES) Respondent and The Seattle Times are parties to a col- lective-bargaining contract containing a lawful union-se- cunty provision which, among other things, provides that if any member of Respondent loses his or her good standing as a member by falling 1 month behind in their dues or assessments, uniformly required as a condition of retaining membership, The Seattle Times shall, on formal notice from Respondent, terminate their employment. Johnston and King are employed by The Seattle Times in the unit covered by this collective- bargaining contract. In 1981, after having been employed in the contractual unit by The Seattle Times for several years, they resigned their membership in Respondent and agreed to comply with the contractual union-security provision by paying to Respondent the equivalent of periodic dues uniformly required of Respondent's mem- bership. By changing their membership status from full to financial core members, Johnston and King lost a number of rights they had as full members, including the right to vote for or against strike authorizations, the right to strike benefits, and the right to vote at contract ratification meetings or on other issues presented to the membership. From May 1981 through July 1985 dues were collect- ed by Respondent at the "reduced dues" level and John- ston and King paid these dues without objection. In August 1985 the Guild, as described supra, instituted the collection of "regular dues," also known as "2(d) dues," which remained in effect from August 1985 through Feb- ruary 1986. In its July 1985 report to the membership about the Guild's convention and in its August 1985 newsletter to the membership, Respondent described the imposition of the "Section 2(d) dues" schedule as a "temporary in- crease" in dues required by the constitution. Johnston and King, by letters, notified Respondent they refused to pay the difference between the "reduced dues" and the "2(d) dues," because, as financial core members they stated they believed they were not obli- gated to pay this additional sum of money, which in their opinion constituted a "special assessment," not the equivalent of "dues." Respondent replied, by letters, that the difference between the former level of dues and the current level was because of the change in the regular periodic dues of Respondent and did not constitute an as- sessment, and warned Johnston and King, if they did not pay the money Respondent was requesting, Respondent would request The Seattle Times to discharge them, under the terms of the contractual union-security agree- ment. A copy of this warning was sent to The Seattle Times.8 Johnston and King eventually paid all the dues being requested, but informed Respondent they were paying all the dues requested under protest. 8 In its answer and in its amended answer to the complaint and in its "Memorandum Opposing Petitions to Revoke Subpoenas," Respondent admits that, pursuant to the contractual union-security provision in its contract with The Seattle Times, it demanded that The Seattle Times dis- charge Johnston and King (G C Exhs 1(g), (k), and (1) and R Exh 1) B. Discussion and Conclusions 907 1. The affirmative defenses In its amended answer, Respondent alleged two af- firmative defenses: (1) "This proceeding is barred by 29 U.S.C. Sec. 411(a)(4), second proviso"; and, (2) "The Se- attle Times controls Charging Parties in their employee and litigant status[,] [h]ence maintenance of this proceed- ing constitutes an abuse of Board process."9 The sole evidence presented by Respondent in support of its af- firmative defenses was an admission of the Charging Party's lawyers, Davis, Wright & Jones, that all the Charging Party's legal fees incurred in connection with the investigation and prosecution of the instant charge before the Board have been paid by The Seattle Times, the Charging Party's employer. i 0 For the reasons set forth below I am persuaded that Respondent's affirma- tive defenses are without merit. Assuming arguendo that The Seattle Times' payment of the Charging Party's legal fees associated with the filing and the prosecution of the unfair labor practice charges in this case, when considered with other infor- mation subpoenaed by Respondent, establishes that The Seattle Times initiated, supported, and assisted the Charging Party in filing and maintaining the charge in violation of the Act, it would not disqualify the Charg- ing Party from filing and maintaining the charge. For, unfair labor practices on the part of The Seattle Times, if established, could neither extinguish the right of its em- ployees to be free from Respondent's alleged unfair labor practices, nor justify the Respondent's alleged statutory infringement of employees' rights. The Act provided Re- spondent with ready redress if it thought The Seattle Times violated the Act in connection with the filing of the charge in this case. It could have filed an appropriate charge with the Board's General Counsel for her inde- pendent determination whether The Seattle Times had violated the Act by initiating or otherwise aiding the Charging Party in the filing of the charges, Respondent did not do so. It is for all of these reasons that I reject Respondent's affirmative defense that because of The Se- attle Times' control over the Charging Party's status as a litigant, the maintenance of this proceeding constitutes an abuse of the Board's authority. See Machinists Local 758 (Menasco), 267 NLRB 1147, 1158 (1983); Union Indepen- diente de Empleados de Servicios, 249 NLRB 1044, 1047 (1980); Communications Workers (Ohio Consolidated), 120 NLRB 684, 686-687 (1958). 9 Respondent served The Seattle Times, and Davis, Wright & Jones, the law firm that represents the Charging Party in this proceeding, with subpoenas duces tecum requesting documents and records which it con- tended were relevant to proving its affirmative defenses The Seattle Times and Davis, Wright & Jones filed timely petitions to revoke those subpoenas and Respondent filed a memorandum opposing the petitions to revoke The matter was referred by Deputy Chief Administrative Law Judge William Pannier to Administrative Law Judge Richard D Taplitz for ruling On 25 November 1986 Judge Taplitz issued an order granting the petitions to revoke the subpoenas Respondent has not requested that I consider the propriety of Judge Taplitz' order, but introduced into evi- dence all the documents relating to the subpoena enforcement issue so as to preserve the issue for review by the Board 10 This admission was included in the petition to revoke Davis, Wright & Jones' subpoena 908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As to Respondent's remaining affirmative defense deal- ing with the applicability of the second proviso to 29 U.S.C. § 41l(a)(4) to this proceeding, I am of the opin- ion that regardless of the degree of control exercised by the Charging Party's employer, The Seattle Times, over the filing and maintenance of the charge, the proviso does not apply to this proceeding because: ( 1) Charging Party Johnston was not a member of Respondent; and (2) the proviso does not preclude relief sought by the filing of an unfair labor practice charge under the Na- tional Labor Relations Act. Johnston, who had been a member of Respondent when he initially began his employment in 1979, resigned his membership in 1981 and, since that time , his sole obli- gation toward Respondent has been to pay the equiva- lent of the periodic dues uniformly required to be paid by Respondent's membership, pursuant to the contractual union-security agreement between Respondent and The Seattle Times. As a nonmember of Respondent, Johnston is not bound by the Guild's constitution and/or Respond- ent's bylaws. Also, unlike Respondent's members, John- ston and the other nonmember employees represented by the Respondent, who have opted for financial core status, are ineligible to vote in Respondent 's elections or referendums, including the election of officers and refer- endums dealing with the subject of dues , and are ineligi- ble to participate at Respondent 's membership meetings, including meetings dealing with contract ratification and strike authorization votes, and are ineligible to receive strike benefits. It is provided in 29 U.S.C. § 411(a)(4) that "[n]o labor organization shall limit the right of any member thereof to institute an action in any court or in a proceeding before any administrative agency...." The second pro- viso to § 411(a)(4) provides "that no interested employer or employer association shall directly or indirectly fi- nance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition." Thus, the protection of the right to sue and the prohibi- tion against employer financial involvement embodied in § 411(a)(4) pertains to a "member" of a labor organiza- tion defined in 29 U.S.C. § 402(o) the meaning of the word "member" as used in 29 U.S.C. § 411(a)(4) is as follows: "Member" or "member in good standing," when used in reference to a labor organization , includes a person who has fulfilled the requirements for mem- bership in such organization, and who neither has voluntarily withdrawn from membership nor has been expelled or suspended from membership." The meaning of the word "member" as used in 29 U.S.C. § 411(a)(4) is further delineated in 29 U.S.C. § 411(a)(1) and (2) as follows: Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or refer- endums of the labor organization, to attend mem- bership meetings, and to participate in the delibera- tions and voting upon the business of such meetings. . .. Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views . . . and to express at meetings of the labor organizations his views, upon candidates in an election of the labor organization or upon any business properly before the meeting. I find that having resigned from membership in Re- spondent and having none of the rights and obligations normally associated with membership in a labor organi- zation, other than the obligation to comply with the union-security agreement between his employer and Re- spondent by paying the equivalent of periodic dues, Johnston is not a "member" of a labor organization as that term is used in 29 U.S.C. § 411(a)(4) and for this reason I find the second proviso to § 411(a)(4) does not apply to Johnston's charge in this case. Klemens v. Air Line Pilots, 500 F.Supp. 735, 737-738 (W.D. Wash. 1980). Alternatively, I find that Johnston's charge in this case is not barred by the second proviso of 29 U.S.C. § 411(a)(4) because the proviso does not preclude relief sought by the filing of an unfair labor practice charge under the National Labor Relations Act. In Painters Local (Saxon Enterprises), 273 NLRB 13, 15, 17-18 (1984), the Board affirmed Administrative Law Judge Russell L. Stevens' opinion that the second proviso of § 411(a)(4) was not applicable to the unfair labor prac- tice charges filed in that case because (273 NLRB at 17- 18): Assuming, arguendo, that [the Employer] indirectly encouraged this litigation, such a fact would not be a defense to the commission of unfair labor prac- tices. Possibly such a fact would be cause for pro- ceeding in some other forum , under some other stat- ute, against persons or firms not party to this con- troversy, but that fact would be collateral, and irrel- evant, to the complaint involved in this controver- sy. See also Adamszewski v. Machinists Local 1487, 496 F.2d 777 (7th Cir. 1974), in which the court found that the second proviso of 29 U.S.C. § 41 1(a)(4) did not preclude relief sought pursuant to 45 U.S.C. §§ 151-188 of the Railway Labor Act, if otherwise properly brought. 496 F.2d at 784. The basis for this conclusion was that Sec- tion 413 of Title 29 preserved preexisting remedies of union members existing under any other Federal law,1' and that Section 523(b) further provided that nothing in Sections 401-531 of Title 29 shall supersede or impair the provisions of the Railway Labor Act or the National Labor Relations Act or the rights conferred thereby.12 11 29 U.S.C. § 413 provides. "Nothing contained in this subchapter shall linut the rights and remedies of any member of a labor organization under any State or Federal law or before any court or other tribunal, or under the constitution and bylaws of any labor organization " 12 29 U S C. § 523 (b) provides. "Nothing contained in this chapter [sec 401-531] and section 186(a-c) of this title shall be construed to su- persede or impair or otherwise affect the provisions of the Railway Labor Act, as amended ., nor shall anything contained in this chapter be construed to confer any rights , privileges, immunities, or defenses upon employers, or to impair or otherwise affect the rights of any person under the National Labor Relations Act, as amended " NEWSPAPER GUILD LOCAL 82 (SEATTLE TIMES) But see Auto Workers v. Right To Work Foundation, 376 F.Supp. 1060, 1062 (D.C.D.C. Cir. 1974), affd. in part, vacated in part, and remanded 590 F.2d 1139 (D.C. Cir. 1978), and Auto Workers v. Right To Work Foundation, 91 LRRM 2262, 2267 (D.C.D.C. Cir. 1975). 2. The alleged unfair labor practices For over 25 years the Guild has maintained an Inter- national defense fund for the purpose of paying the ex- penses incurred by its constituent locals connected with strikes and lockouts, including the payment of strike ben- efits. The International defense fund has also been used to make nonstrike- or nonlockout-related loans and grants to Guild-affiliated locals and to make loans or grants to other unions. Also the International defense fund has been used to pay the Guild's general operating expenses when its treasury lacks sufficient money. In ad- dition money from the International defense fund is transferred to the Guild's treasury for operating expenses during strikes in order to compensate for the lower per capita payments of locals whose members are on strike. The record reveals that the defense fund's nonstrike- and nonlockout-related payments to Guild-affiliated locals, its payments to other unions, and its payments for other matters unrelated to strikes and lockouts involving affiliated locals, while they involved substantial sums of money, constitute only a very small and insignificant proportion of the International defense fund. It is clear that the expenditures from the International defense fund that had been unrelated to strikes and lockouts involving affiliated locals have been merely incidental to the fund's essential purpose, the payment of the strike- and lockout- related expenses of the Guild's locals, and that absent this essential purpose the fund would not exist. Prior to 1972 the International defense fund was funded, pursuant to provisions in the Guild's constitution that provided that a percentage of the per capita pay- ments of monthly membership dues transmitted by the locals to the Guild be earmarked for the International defense fund, and further provided that in an "emergen- cy" the Guild's executive board was empowered to levy an "assessment" for the International defense fund on the entire membership. "Emergency," as defined in the con- stitution, was whenever the defense fund fell below the level of $1. 5 million until the fund reached the level of $2 million. After "emergency assessments" were leveled on the membership for 46 consecutive months from January 1968 to November 1971 the delegates to the Guild's annual convention held in 1972 approved a resolution stating that the "assessments" required to maintain the International defense fund at the level set by the consti- tution had become a part of the Guild's dues structure and that to label them "assessments" was a misnomer. The delegates voted to amend the constitution to incor- porate these "assessments" into the Guild's dues struc- ture and to call them "dues." The constitution, as amended by the 1972 convention, continued to provide that a percentage of the per capita monthly membership dues payments transmitted by the locals to the Guild be earmarked for the International defense fund. However, with respect to supplemental 909 contributions to the fund so as to keep it at the level re- quired by the constitution, the constitution, as amended by the 1972 convention, provided for an increase in the usual monthly dues paid by the membership, rather than an "assessment." In this regard, the constitution, as amended, provided for an automatic increase in the members' monthly dues when the reserves in the Interna- tional defense fund fell below a certain amount ($1.5 mil- lion in the 1972 constitution) and further provided that this increased amount of dues would continue to be paid until the fund's reserves reached a certain amount ($2 million in the 1972 constitution) at which point the usual dues schedule is reinstated.13 The amended constitution further provided that the difference between the usual dues and the increased dues would be transmitted to the Guild for the sole purpose of funding the International defense fund. Since the above-described 1972 amendment to the Guild's constitution, the membership on four separate oc- casions14 has been required by the triggering mechanism embodied in the constitution to pay, in addition to the usual amount of monthly dues required by the constitu- tion, the increased amount of monthly dues in order to raise the level of the International defense fund to the level mandated by the constitution. In other words, be- cause the membership in 1972 amended the constitution to include a mechanism to raise their dues to fund the International defense fund when it fell below the levels mandated by the constitution, the members have been re- quired to pay the increased monthly dues 53 out of the 184 months involved or approximately 29 percent of the time. During the remainder of the time the membership has paid the normal monthly dues required by the consti- tution. As described above, from May 1981 through July 1985 the normal amount of monthly dues required by the Guild's constitution was collected by Respondent from its membership. There was no requirement during this period that the International defense fund be funded by increased dues. The Seattle Times employees involved in this case, Johnston and King, who, during this period were "financial core" rather than "full" members of Re- spondent, paid their dues without objection. However, from August 1985 through February 1986 Respondent increased the amount of its monthly membership dues for the purpose of funding the International defense fund. This was done pursuant to the decision of the Guild's membership at the annual convention held in late June 1985, under the following circumstances Since late March or early April 1985 the International defense fund had been below the level at which the Guild's constitu- tion required members' monthly dues to be increased to finance the fund. Nevertheless, because of the proximity of the annual convention schedule for June 1985 and the prospect of action by the convention delegates that would restructure key elements in the constitution deal- 13 The reserve levels that automatically trigger increased and normal dues payments have been changed periodically at the Guild's annual con- vention 14 May 1972 through March 1973, March through May 1976, Septem- ber 1978 through April 1981, and August 1985 through February 1986 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing with the funding of the International defense fund, the officials of the Guild did not at that time increase the members' dues payments as required by the constitution. As a matter of fact, the delegates to the Guild's annual convention held in June 1985 voted to impose, effective August 1985, the increase in monthly dues required by the constitution to fund the International defense fund, and voted to maintain the increased dues payments until the fund reached a new constitutional cutoff point, ap- proved by the delegates, of $6 million-$1 million higher than the previous constitutional level-and also voted to maintain the dues at this increased level for 1 additional month beyond the period needed to reach the $6 million level, with the $400,000 generated by this extra month of higher dues going into a trust fund to pay the severance pay owed by the Guild to the approximately 30 Guild employees terminated due to a permanent reduction in its staff. The context in which the delegates to the June 1985 convention gave their approval to the above-described matters, follows (see G.C. Exhs. 8 and 10): Initially, the Guild's officials had proposed that the delegates vote to increase the locals' monthly per capita payments to the Guild by 30 percent, which would have meant a sharp permanent increase in the amount of dues paid by the membership. Respondent and other locals were opposed to this and the result was a compromise package that in- cluded the above-described increase in the level of the International defense fund from $5 to $6 million and, as described above, the payment of the extra month of in- creased dues into the Guild's severance pay trust fund. There were also two other items included in the compro- mise package approved by the delegates: (1) authoriza- tion for the Guild to buy or build a building to house the Guild's headquarters operation and for the Guild to borrow, without interest, $750,000 from the International defense fund to do this; and (2) authorization for a refer- endum, after the International defense fund reached $6 million, whereby the membership would be asked to ap- prove an increase of the minimum monthly dues required by the constitution from 5 percent to 6 percent of a week's salary for the purpose of increasing the minimum strike benefit to $125 per week, financed by a smaller in- crease in the local's per capita payments to the Guild, than the 30-percent increase initially proposed by the Guild's officials. In response to Respondent's request that they pay the increased monthly dues payments for the period of August 1985 through February 1986, Johnston and King notified Respondent they refused to pay the difference between their usual monthly dues and the increased dues. They explained to Respondent that as financial core members they did not feel obliged to pay the additional amount which, in their opinion, constituted a "special as- sessment." Respondent informed them that the difference between the former level of monthly dues and the in- creased level was due to a change in the regular periodic dues of Respondent and did not constitute an "assess- ment." Respondent warned Johnston and King if they did not pay all the dues Respondent was requesting Re- spondent would ask The Seattle Times, under the terms of its union-security agreement with Respondent, to dis- charge them. Respondent also admittedly requested that The Seattle Times discharge Johnston and King, pursu- ant to the terms of the contractual union-security provi- sion, for their refusal to pay all the dues Respondent was asking them to pay. Johnston and King eventually paid, under protest, the disputed portion of the dues. The complaint alleges that by threatening to cause The Seattle Times to discharge Johnston and King pursuant to the terms of a contractual union-security agreement, Respondent violated Section 8(b)(1)(A) and (2) of the Act for the reason that it engaged in this conduct be- cause Johnston and King "refused to pay an assessment for Respondent's strike fund and monies to build a new headquarters building in Washington, D.C., and for rea- sons other than the employees' failure to tender periodic dues and the initiation fees uniformly required as a con- dition of acquiring or retaining membership in Respond- ent." The complaint allegation presents the issue of whether the difference in amount between Respondent's usual monthly membership dues and the increased dues Respondent required of its membership during the period from August 1985 through February 1986 is encom- passed within the meaning of the term "periodic dues" as used in Section 8(a)(3) and Section 8(b)(2) of the Act. The second proviso to Section 8(a)(3) of the Act makes it an unfair labor practice for an employer in a union shop to discriminate against an employee for non- membership in a labor organization "if [the employer] has reasonable grounds for believing that membership was denied or terminated for reasons other than the fail- ure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of ac- quiring or retaining membership." Section 8(b)(2) of the Act makes it an unfair labor practice for a labor organi- zation to attempt to cause "an employer to discriminate against an employee in violation of subsection (a)(3) .. . on some ground other than his failure to tender the peri- odic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." The General Counsel contends that the difference in amount between Respondent's usual monthly membership dues and the increased monthly dues Respondent required of its membership during August 1985 through February 1986 is not within the definition of "periodic dues" as that term is used in Section 8(a)(3) and Section 8(b)(2) of the Act, thus, the General Counsel argues, Respondent's threat and attempt to have Johnston and King terminat- ed for refusing to pay the increased dues is a violation of Section 8(b)(2) and (1)(A) of the Act. In NLRB v. Food Fair Stores, 307 F.2d 3 (3d Cir. 1962), the court rejected the respondent union's conten- tion that the word "periodic," as used in "periodic dues," meant "occurring from time to time, recurrent, intermit- tent" as well as "at regular intervals." Instead the court defined "periodic dues," as used in Section 8(a)(3) and Section 8(b)(2) of the Act, as follows (307 F.2d at 11): It is clear that the term "periodic dues" in the usual and ordinary sense means the regular pay- ments imposed for the benefit to be derived from membership to be made at fixed intervals for the maintenance of the organization . An assessment, on NEWSPAPER GUILD LOCAL 82 (SEATTLE TIMES) the other hand, is a charge levied on each member in the nature of a tax or some other burden for a special purpose, not having the character of being susceptible of anticipation as a regularly recurring obligation as in the case of "periodic dues." Although in Food Fair Stores the court stated that "peri- odic dues" referred, among other things, to payments made to a union "for the maintenance of the organiza- tion" and that "assessments," on the other hand, referred, among other things, to a charge levied "for a special purpose," the court did not explain what it meant by "for the maintenance of the organization" or "for a spe- cial purpose." In Teamsters Local 959 (RCA Service Co.), 167 NLRB 1042 (1967), the respondent union, in addition to collect- ing regular periodic dues, incorporated into its regular dues schedule a previously established assessment per hour worked called "working dues," which was used to support a credit union and building program. The Board held that the "working dues" were assessments and not "periodic dues" within the meaning of Section 8(a)(3). In so doing the Board adopted Food Fair Stores above-de- scribed definition of "periodic dues" (167 NLRB at 1045).15 In adopting the court's Food Fair Stores defini- tion of what constitutes "periodic dues," the Board in RCA Service noted that the union shop was permitted in Section 8(a)(3) of the Act out of concern that non- members would be given a "free ride," and from this concluded that dues that do not contribute to the cost of the operation of the union in its capacity as a collective- bargaining agent of the employees were "for a special purpose" and not "for the maintenance of the organiza- tion" even though the payments were beneficial to the membership (167 NLRB at 1044-1045). More recently the Board in Typographical Union Local 40 (Detroit Free Press), 192 NLRB 951 (1971), all but overruled that part of RCA Service that differentiated be- tween the allocation of dues payments for collective-bar- gaining purposes and those earmarked for the institution- al expenses of the union. Detroit Mailers involved work- ing dues used to finance the old age pension and mortu- ary funds and printers home maintained by the Interna- tional union with whom the respondent union was affili- ated. The Board held that the portion of the dues pay- ments that were used for those purposes constituted "periodic dues," and in reaching this conclusion stated that in determining the propriety of union discipline pur- suant to a valid union-security agreement, no distinction is warranted between that portion of uniform and period- ic dues allocated to the costs of collective bargaining and that used for other legitimate institutional expenses. Under Section 8(aX3), the Board ruled, uniform periodic dues may be required as a condition of membership, if such sums are not devoted to some purpose otherwise contrary to public policy. Detroit Free Press, supra at 951, 951-952 (Member Jenkins dissenting). In reaching this result, the Board distinguished RCA Service as involving is More recently in Carpenters Local 455 (Building Contractors), 271 NLRB 1099, 1100 (1984), the Board reaffirmed its adoption of the Food Fair Stores definition of "periodic dues " 911 an admitted "assessment," 90 percent of which might never have reached the union treasury (192 NLRB at 952). As set forth above, the law is settled that Section 8(a)(3) and Section 8(b)(2) of the Act do not allow an employer and a union to condition employment on the payment of uniform " assessments," as opposed to "peri- odic dues," to a union. NLRB v. Food Fair Stores, 307 F.2d 3, 9-16 (3d. Cir. 1962). I am of the opinion that the disputed dues payments involved herein-the increased monthly dues charged the members of the Guild during the period from August 1985 through February 1986- constitute an "assessment" rather than "periodic dues." As described infra, in so concluding, I have been guided by the court's definition of "periodic dues" in Food Fair Stores, which definition has been adopted by the Board. 16 The difference in amount between the dues regularly charged the membership and the increased dues charged during the months of August 1985 through January 1986 does not fit within the definition of "periodic dues" as that term is used in Section 8(a)(3) and Section 8(b)(2) of the Act, because the record establishes that the dues in- crease was a charge levied on the membership for a spe- cial purpose, not having the requisite periodicity and reg- ularity so that it was susceptible of anticipation as a regu- larly recurring obligation as in the case of "periodic dues." My reasons for reaching this conclusion follow. The Guild maintains a special fund, the International defense fund, for the special purpose of paying the ex- penses incurred by its locals relating to strikes and lock- outs. The money collected for the defense fund is kept separate and apart from the Guild's general fund and, al- though some of the money in the defense fund has been used for purposes other than the fund' s essential purpose of financing the strike and lockout expenses of its locals, it is undisputed that normally the sole purpose for which increased dues are collected from the membership is to support the International defense fund's essential pur- pose, i' and that all other expenditures from the Interna- 16 I recognize that one of the factors that the Board considers in distm- guishmg between an "assessment" and "periodic dues" is the purpose for which the union has collected the funds in issue See Detroit Mailers, supra at 952, Teamsters Local 959 (RCA Service Ca), 167 NLRB 1042, 1044-1045 (1967) The Board's decisions in Detroit Free Press and RCA Service appeared, however, to be hopelessly irreconcilable concerning the nature of the purpose of an expenditure which will cause dues payments to fall outside of the definition of "periodic dues," as that term is used in Section 8(a)(3) Under the circumstances I have followed the Board's most recent decision, Detroit Free Press, in which, as described supra, the Board stated that the only expenditures from members' dues that are not encompassed by the term "periodic dues" are those which are used for a purpose which would make their mandatory extraction "inimical to public policy " There is no evidence that any of the purposes for which Respondent has collected the disputed dues payments herein are "inimical to public policy " The fact that some of the moneys may be used to defend strikers in criminal proceedings arising out of strike-related mis- conduct is not, as contended by the Charging Party, "inimical to public policy " 17 As described in detail supra, the disputed increase in dues for the months of August 1985 through January 1986 was also to be used to enable the defense fund to make an interest-free loan of $750,000 to the Guild to use to either buy or build a headquarter's building This, in my opinion, provides additional support for the conclusion that the disputed Continued 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tional defense fund using the increased dues are merely incidental to the fund's essential purpose. The August 1985-January 1986 dues increase was in- stituted pursuant to provisions in the Guild's constitution requiring that monthly dues be raised by a specified amount, set by the constitution, whenever the Interna- tional defense fund has less than a specified amount, set by the constitution, and requires that the increase must continue until the fund is raised to a specified level, also set by the constitution. Either this provision or a similar one has been incorporated in the Guild's constitution since 1972. It is impossible, however, for the Guild to an- ticipate with any degree of certainty when the Interna- tional defense fund will fall to a level making it neces- sary for the Guild to impose a period of increased dues so that the amount of money in the defense fund will reach the level required by the constitution, nor, after in- stituting such a dues increase, is it possible for the Guild to anticipate with any degree of certainty the length of the period during which the increased dues payments must be maintained so as to meet the constitutional re- quirement. There is also no certainty that the Guild at the appropriate time will institute the increase in dues payments called for by the constitution, when the Inter- national defense fund falls below the level set by the constitution to trigger a dues increase. In this respect the August 1985-January 1986 dues increase, the increase in- volved herein, should have been instituted several months earlier according to the constitution, but was postponed. Also, inasmuch as the increase in dues at issue was earmarked for a special purpose, it is not sur- prising that it has been necessary for the Guild to impose such an increase in dues only on a sporadic and intermit- tent basis during the approximately 15-1/4 years the in- creased dues requirement has been embodied in the Guild's constitution: May 1972 through March 1973; March through May 1976; September 1978 through April 1981; August 1985 through February 1986. In other words since the members in 1972 amended the constitution to include a mechanism to raise their dues in order to fund the International defense fund when it fell below a level mandated by the constitution, the members have been required to pay the increased dues only 53 out of the 184 months involved, or approximately 29 percent of the time. During the remainder of the time the mem- bers have paid the normal dues required by the constitu- tion. Indeed before the dues increase involved in this case, the members had been paying the normal dues re- quired by the constitution continuously for 4-1/4 years. Considering the special purpose for which the August 1985 through January 1986 increase in dues was levied- to increase the amount of money in the Guild' s Interna- tional defense fund so there would be enough money in the fund to pay the expenses incurred by the locals in- volved in strikes and lockouts; i 8 considering the impossi- increase in dues herein constitutes a charge in the nature of a tax for a special purpose, for insofar as the increase was to be used to finance the buying or building of a headquarter's building, it plainly is a one-time charge for a special purpose See Teamsters Local 439 (Shippers Imperial), 281 NLRB 255 (1986) 18 I reject Respondent's contention that the moneys received by the International defense fund from the increase in dues involved herein was bility of the members being able to anticipate the imple- mentation and duration of the implementation of an in- crease in dues for this special purpose; considering that the extra moneys collected because of the increased dues levy are placed in a special fund, the International de- fense fund, and not in the Guild's treasury; considering that the increased dues payments are levied on the mem- bers irregularly and at irregular intervals;19 considering the disparity in the periodicity of the increase of the amount of monthly dues involved herein, with the pay- ments of the normal monthly memberships dues;20 I find that the increase in monthly dues levied on the member- ship from August 1985 through January 1986 for the purpose of raising the International defense fund to the level required by the constitution constitutes an "assess- ment" rather than "periodic dues" inasmuch as the in- crease was "a charge levied on each member in the nature of a tax . . . for a special purpose, not having the character of being susceptible of anticipation as a regu- larly recurring obligation." NLRB v. Food Fair Stores, supra. I reject Respondent's contention that the dues increase at issue constitutes "periodic dues," rather than an "as- sessment" because the Guild's membership in 1972 incor- not for a special purpose because the Guild frequently and routinely uses defense fund moneys for general fund purposes. The record reveals that while expenditures from the International defense fund for general fund purposes have at times involved substantial sums of money, that such ex- penditures constitute a very small and insignificant proportion of the funds which have flowed in and out of the International defense fund. Moreover, the International defense fund's expenditures which have been unrelated to the expenses incurred by affiliated locals due to strikes and lockouts, have been merely incidental to the International defense fund's essential purpose, the payment of strike- and lockout-related expenses in- curred by the locals It is clear that absent this essential purpose the International defense fund would not exist and the Guild's members would not have been required to pay increased monthly dues during the months of August 1985 through January 1986. to I have considered, as pointed out by Respondent, that the Board has held that "periodic dues" within the meaning of Sec 8(ax3) may vary from period to period and from member to member, in that the Board has approved dues schedules in which the amount of dues required vaned with the individual's salary for a particular period, vaned with whether a member was working "at the trade", vaned depending wheth- er the dues were paid on time; and, vaned based on attendance at union meetings In my view these situations differ significantly from the situa- tion posed by the instant case 20 The General Counsel also contends that in Johnston's and King's cases the increased dues herein are not "uniformly required" as required by Sec. 8(a)(3) because, as financial core members, Johnston and King pay a proportionately greater share than full members, inasmuch as they are not eligible to receive strike benefits from the International defense fund Similarly the Charging Party contends the increased dues are not encompassed by the term "periodic dues" as used in Sec 8 (a)(3) because, as financial core members, Johnston and King are not eligible to receive the benefits which the full members derive from the International defense fund These contentions are without merit because generally a union can "require all employees whom it represents and who are covered by a valid union-security agreement to pay all periodic dues .. , uniformly re- quired as a condition of acquiring or retaining [union] membership," (De- troit Mailers Union Local 40), supra at 951-952, (1970), and "[s]o long as the union prescribes non-discriminatory terms and conditions of acquiring membership, it can compel all employees to pay the ordinary and regular union dues under a union-security clause . even if some of the em- ployees do not qualify for union membership provided it does not interfere with employment of the nonmember employees for reasons other than failure to tender the periodic dues and initiation fees uniformly required " Plumbers Local 81 (Morrison Construction), 237 NLRB 207, 210 (1978) NEWSPAPER GUILD LOCAL 82 (SEATTLE TIMES) 913 porated into the Guild's dues structure an increase in members' "dues" for the purpose of raising the level of the International defense fund to the level mandated by the constitution whenever the fund fell below that level, and has since then consistently referred to this charge as "dues" rather than an "assessment." In this regard, the record reveals, as described in detail supra, that prior to the amendment of the constitution in 1972 the term "ass- sessment" was used by the Guild and its constitution to refer to the charge levied on the members to raise the level of the International defense fund to the level man- dated by the constitution. In 1972 the Guild's member- ship amended the constitution to change the term "as- sessment" to "dues" and made the charge a part of the Guild's dues structure. Before and after the 1972 consti- tutional amendment, however, the substance of the rele- vant constitutional provisions that dealt with this subject remained virtually the same except that what was now called "dues" had formerly been called an "assessment." The sole substantive change was that now the Guild's executive board was not given discretion by the constitu- tion, but was required to institute a "dues" increase whenever the International defense fund fell below the level set by the constitution. However, as noted supra, the Guild ignored the constitution and exercised its dis- cretion in 1985, when it delayed instituting the dues in- crease at issue for a period of several months. Under the circumstances, the fact that what was formerly called an "assessment" is now called "dues" is only a matter of se- mantics and of very little help in resolving the question presented for decision. In other words, for the foregoing reasons, I am of the opinion that the fact the Guild refers to the disputed charge levied on its members as "dues," rather than an "assessment," and has formally made the disputed charge a part of its dues structure, is not suffi- cient to rebut the conclusion, based on the record as a whole, that the disputed charge did not constitute "peri- odic dues" within the meaning of Section 8(a)(3) and Section 8(b)(2) of the Act.2 i The difference in amount between the monthly dues regularly charged the Guild's members and the increased monthly dues charged them in February 1986, does not fit within the definition of "periodic dues" as that term is used in Section 8(a)(3) and Section 8(b)(2) of the Act, in- asmuch as the record establishes that the increase was a special one-time assessment designed to meet an emer- gency situation. As described in detail supra, the increase in monthly dues charged the Guild's members in Febru- ary 1986 was the result of a vote by the delegates to the Guild's annual convention held in June 1985 to amend the constitution so the increased dues mandated by the 21 The Detroit Free Press, supra, relied on by Respondent, is distin- guishable because there "[n]obody contend[ed] that the dues were other than periodic" (192 NLRB at 952) In the instant case the percent- age of the members' dues paid regularly each month to finance the Inter- national defense fund, which payments are not challenged in this case, are identical to the regular monthly dues payments imposed at fixed in- tervals involved in the Detroit Free Press In sharp contrast, the increased dues payments at issue in the instant case, for the special purpose of rais- ing the International defense fund to the level required by the constitu- tion, lack any degree of periodicity or regularity so as to be encompassed within the term "periodic dues" as used in Sec 8(a)(3) and Sec 8(b)(2) of the Act constitution to replenish the International defense fund would continue for I additional month for the purpose of generating money to pay the $400,000 in severance pay owed to the Guild's employees who had been terminated due to a permanent reduction in the Guild's staff. Pursu- ant to this constitutional amendment the Guild's member- ship was required to pay in February 1986 an additional month of increased dues and the increased portion of the dues was placed in a special severance pay trust fund, separate and apart from the Guild's other funds. In other words, the increased February 1986 membership dues was a temporary charge on the membership, imposed for only a period of 1 month for the purpose of meeting an emergency situation involving the payment of severance pay owed by the Guild, and the additional funds collect- ed by the increase were kept in a separate trust fund apart from the Guild's general operating funds. In view of these circumstances it is apparent that the increased dues levied on the membership in February 1986 consti- tuted an "assessment" rather than "periodic dues" be- cause the increase was "a charge levied on each member in the nature of a tax . . . for a special purpose, not having the character of being susceptible of anticipation as a regular recurring obligation as in the case of "peri- odic dues" NLRB v. Food Fair Stores, supra, 307 F.2d at 11. It is for the reasons set forth above that I find the dif- ference between the Guild's usual monthly dues pay- ments imposed on its members and the increase in said payments during the period from August 1985 through February 1986 did not constitute "periodic dues" within the meaning of Section 8(a)(3) and Section 8(b)(2) of the Act. I therefore find that by attempting to cause The Se- attle Times to discharge its employees Kenneth Johnston and Tonya King for refusing to pay the above-described increase in dues, that Respondent violated Section 8(b)(2) and (1XA) of the Act. CONCLUSIONS OF LAW 1. Respondent Pacific Northwest Newspaper Guild Local 82 is a labor organization within the meaning of Section 2(5) of the Act. 2. The Employer, The Seattle Times, is an employer engaged in commerce and business activities which affect commerce, within the meaning of Section 2(6) and (7) of the Act. 3. By attempting to cause The Seattle Times to dis- charge Kenneth Johnston and Tonya King in violation of Section 8(a)(3) of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of 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 Respondent violated Section 8(b)(2) and (1)(A) of the Act by attempting to cause The Seattle Times to discharge employees Kenneth Johnston and Tonya King because they refused to pay to Respondent the increase in their monthly membership dues imposed during the period of August 1985 through February 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1986, 1 shall recommend that Respondent cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. I shall recommend that Respondent make Johnston and King whole for the monetary loss they suffered as a result of the discrimination against them, by refunding to them a sum equal in amount to the increased portion of the monthly dues they paid to Respondent for the period of August 1985 through February 1986, with interest thereon computed in the manner set forth in New Hori- zonsfor the Retarded, 283 NLRB 1173 (1987).22 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed23 ORDER The Respondent, Pacific Northwest Newspaper Guild Local 82, Seattle, Washington, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause The Seattle Times to discharge any employee for his or her failure to tender to the Respondent any sum of money other than the periodic dues and the initiation fees, uniformly levied, as defined in the Act, or in any other manner causing or attempting to cause that Company to discrimi- nate against its employees in violation of Section 8(a)(3) of the Act. (b) Restraining or coercing employees of The Seattle Times in the exercise of their right to refrain from any or all concerted activities guaranteed them by Section 7 of the Act, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Kenneth Johnston and Tonya King whole for the monetary loss they suffered as a result of the dis- crimination against them, by refunding to them a sum equal in amount to the increased portion of the monthly dues they paid to Respondent for the period of August 1985 through February 1986, with interest. (b) Notify the employer, The Seattle Times, in writing, and advise Kenneth Johnston and Tonya King, in writ- ing, that it rescinds any request or demand that the em- ployees be discharged or not allowed to work and that it has no objection to their continued employment with un- impaired rights and privileges. (c) Post at its business copies of the attached notice marked "Appendix."24 Copies of the notice, on forms 22 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 23 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. 24 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 " provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representa- tive, 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) Forward a sufficient number of signed copies of the notice to the Regional Director for Region 19 for posting by the Employer at its place of business in Seat- tle, Washington, in places where notices to employees are customarily posted, if the Employer is willing to do so. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. APPENDIX NOTICE To MEMBERS 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 cause or attempt to cause The Seattle Times to discharge any employee for his or her failure to tender to us any sum of money other than the periodic dues and the initiation fees, uniformly required, as de- fined in the National Labor Relations Act, or in any other manner causing or attempting to cause that Com- pany to discriminate against its employees in violation of Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT restrain or coerce employees of The Se- attle Times in the exercise of their right to refrain from any or all concerted activities guaranteed to them by Section 7 of the National Labor Relations Act, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the National Labor Relations Act. WE WILL make Kenneth Johnston and Tonya King whole for the monetary loss they suffered as a result of our discrimination against them, by refunding to them a sum equal in amount to the increased portion of the monthly membership dues they paid to use for the period of August 1985 through February 1986, with interest. WE WILL notify The Seattle Times, in writing, and advise Kenneth Johnston and Tonya King, in writing, that we rescind any request or demand that they be dis- charged or not allowed to work and that we have no ob- jection to their continued employment with unimpaired rights and privileges. PACIFIC NORTHWEST NEWSPAPER GUILD LOCAL 82