Local 282, International Union Of Electronic, Electrical, Salaried, Machine And Furniture Workers, Afl-Cio (Davis Co.)

182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Furniture Workers Division, Local 282, Internation al Union of Electronic, Electrical, Salaried, Ma chine and Furniture Workers , AFL-CIO (The Davis Company) and Everlena C Yarbrough Case 26-CB-2402 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT Upon a charge filed by Everlena C Yarbrough an individual the Regional Director for Region 26 issued a complaint and notice of hearing on Octo ber 9 1987 and an amendment to complaint on December 2 1987 The complaint alleges that the Union the Respondent engaged in certain unfair labor practices within the meaning of Section 8(b)(1)(A) of the National Labor Relations Act The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel On March 2 1988 the parties jointly petitioned the Board to transfer this proceeding directly to the Board for findings of fact conclusions of law and the issuance of a Decision and Order The par ties stipulated that they waived a hearing before an administrative law judge the issuance of an admin istrative law judge s decision and the filing of ex ceptions and oral argument before the Board The parties also agreed that the stipulation of facts the charge the complaint and notice of hearing the amendment to complaint the Respondents answer to the complaint the Respondents answer to the amendment to complaint the Respondents second amended answer to complaint the order indefinite ly postponing hearing and attached exhibits consti tute the entire record in this case On May 17 1988 the Board issued its Order ap proving the stipulation and transferring the pro ceeding to the Board Thereafter the Respondent and the General Counsel filed briefs in support of their respective positions The Board has considered the stipulation the briefs and the entire record in this proceeding and makes the following FINDINGS OF FACT I JURISDICTION The Davis Company a corporation manufac tures furniture at its office and place of business in Memphis Tennessee where it annually sells and ships products goods and materials valued in excess of $50 000 directly to points outside the State of Tennessee and purchases and receives products goods and materials valued in excess of $50 000 directly from points outside the State of Tennessee We find that the Company is an em ployer within the meaning of Section 2(2) (6) and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES The issue here is whether the Respondent may lawfully inform nonmembers that they will be charged a grievance processing fee We find that the Respondent violated the Act A Facts The Respondent represents the Company s pro duction and maintenance employees in Tennessee a right to work State Currently, the Respondent and the Company are parties to a collective bargaining agreement effective September 12 1986 through September 11 1989 which contains inter alia a grievance and arbitration procedure The parties stipulated that about September 10 1987 the Respondent issued the following memo randum to bargaining unit employees who were not members of the Respondent ATTENTION ALL NON MEMBERS Effective immediately all non members will be charged a fee for handling grievances an equal amount to the cost of representation or the dues left to be paid under the contract whichever is less About November 20 1987 the Respondent posted the following notice on the employee bulletin board ATTENTION ALL NON MEMBERS Effective immediately all non members will be charged a fee for handling grievances an equal amount to the cost of representation or the dues left to be paid under the contract whichever is less The Union will not refuse to process your grievances because of this policy Should you wish to file a grievance please follow the normal contract procedures B Contentions of the Parties The General Counsel contends that in the ab sence of a valid union security clause a labor orga nization breaches its duty of fair representation by charging or threatening to charge nonmembers the costs of processing grievances The General Coun sel argues that an exclusive bargaining representa tive must act fairly and impartially on behalf of all unit employees particularly in right to work States 291 NLRB No 24 FURNITURE WORKERS LOCAL 282 (DAVIS CO) where union security clauses are prohibited The General Counsel also claims that the November 20 1987 notice does not cure the Respondents dis cnminatory treatment of nonmembers because it fails to assure nonmembers that the Respondent will not attempt to collect future payment for grievance processing The Respondent contends that it has not breached its duty of fair representation because the fee is reasonable and for services rendered and fail ure to charge nonmembers any fee would treat nonmembers and members unequally The Re spondent also argues that the November 20 1987 notice states that implementation of the grievance processing charge will not interfere with employ ees rights under the collective bargaining agree ment The Respondent claims that it has acted in accord with the notice by not refusing to process nonmembers grievances nor threatening to insti tute suits to compel payment for such services The Respondent argues however that the Act does not mandate that unions must provide grievance proc essing services free of charge In light of the indi vidual s expanding rights in relation to labor orga nizations and increasing ability to resign from them, the Respondent urges that unions should not be required to provide free representation to em ployees who choose not to be bound by unions dictates C Discussion Section 8(b)(1)(A) of the Act prohibits a labor organization from restraining or coercing employ ees in the exercise of their Section 7 rights, which include the freedom to refrain from joining or as sisting a labor organization This freedom, howev er is subject to a valid collective bargaining agree ment requiring union membership as a condition of employment The Respondent represents employees in the State of Tennessee where a labor organization may not require union membership as a condition of em ployment 1 Where state law prohibits a labor orga nization from compelling membership a union may not require a fee for vital collective bargaining services, including grievance processing, which is due nonmembers as a matter of right Hughes Tool Co, 104 NLRB 318 329 (1953) See also Machinists Local 697 (Canfield Rubber), 223 NLRB 832 835 (1976) Such a fee coerces employees in the exer cise of their Section 7 freedom to refrain from join ing a labor organization American Postal Workers (Postal Service) 277 NLRB 541 (1985) According ' The Respondents current collective bargaining agreement with the Company does not contain either a union security or agency shop clause 183 ly we find that the Respondent violated Section 8(b)(1)(A) of the Act by informing bargaining unit nonmembers they will be charged a grievance processing fee CONCLUSIONS OF LAW By informing nonmembers who are represented by the Respondent that they will be charged a grievance processing fee, the Respondent violated Section 8(b)(1)(A) of the Act REMEDY2 Having found that the Respondent has violated Section 8(b)(1)(A) of the Act by informing non members who are represented by the Respondent that they will be charged a grievance processing fee we shall order it to cease and desist and take certain affirmative action designed to effectuate the policies of the Act, including rescinding its unlaw ful grievance processing fee policy ORDER The National Labor Relations Board orders that the Respondent Furniture Workers Division Local 282, International Union of Electronic Elec tncal Salaried Machine and Furniture Workers AFL-CIO Memphis Tennessee its officers agents and representatives shall 1 Cease and desist from (a) Informing nonmembers who are represented by the Respondent that they will be charged a grievance processing fee (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Rescind its unlawful policy of charging non members a grievance processing fee (b) Post at its business office meeting halls and all places where notices to represented employees are customarily posted copies of the attached notice marked Appendix 3 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent s authorized representative shall be posted by the Respondent immediately upon receipt and main tained for 60 consecutive days in conspicuous 2 We deny the General Counsels request for a visitatonal provision Under the circumstances of this case we find the provision unnecessary Cherokee Marine Terminal 287 NLRB 1080 (1988) 3 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 184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD places including all places where notices to repre rented employees are customarily posted Reasona ble steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (c) Sign and return to the Regional Director suf ficient copies of the notice for posting by The Davis Company if willing at all places where no tices to employees are customarily posted (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply APPENDIX NOTICE To EMPLOYEES AND 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 ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT inform nonmembers who are rep resented by us that they will be charged a griev ance processing fee WE WILL NOT in any like or related manner re strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL rescind our unlawful policy of charg ing nonmembers a grievance processing fee FURNITURE WORKERS DIVISION LOCAL 282 INTERNATIONAL UNION OF ELECTRONIC ELECTRICAL SALA RIED MACHINE AND FURNITURE WORKERS AFL-CIO