Office Employees Local 2 (Washington Gas)

OFFICE EMPLOYEES LOCAL 2 (WASHINGTON GAS) Office and Professional Employees International Union, Local 2, AFL-CIO (Washington Gas Light Company) and Janet Love Case 5-CB- 5712 December 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 5, issued a complaint and notice of hearing on Feb- ruary 10, 1988,1 against the Respondent, Office and Professional Employees International Union, Local 2, AFL-CIO The complaint alleged the Respond- ent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the National Labor Relations Act The complaint alleged, in substance, that on or about April 29, 1987, the Respondent demanded that the Charging Party pay the Respondent a new initiation fee or be discharged pursuant to the col lective bargaining agreement in effect between the Respondent and Washington Gas Light Company (the Employer) The complaint further alleged that the Respondent engaged in the conduct described above because on or about June 5, 1986, the Charging Party resigned from membership in the Respondent and revoked her dues-checkoff author- ization The Respondent filed an answer admitting in part and denying in part the allegations of the complaint On June 13, the Respondent filed a Motion for Summary Judgment, seeking a dismissal of the complaint, and a brief in support with an attach ment On June 16, the Board issued an order trans ferring the proceeding to the Board and a Notice to Show Cause why the Respondents Motion for Summary Judgment should not be granted On July 8, the Respondent, the General Counsel, and the Charging Party executed a stipulation of facts Also on July 8, the General Counsel and the Charging Party each filed a brief in opposition to the Respondent's Motion for Summary Judgment The General Counsel also filed a Cross-Motion for Summary Judgment, seeking a finding of violation of Section 8(b)(1)(A) of the Act, with exhibits, in- cluding the stipulation, attached The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel ' All dates are 1988 unless otherwise indicated 117 On the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the fol lowing FINDING OF FACTS AND RULING ON THE MOTIONS FOR SUMMARY JUDGMENT I JURISDICTION At all times material, the Employer, a corpora- tion incorporated in Virginia and in the District of Columbia, with offices and places of business in Maryland, Virginia, and the District of Columbia has been engaged as a public utility in the transmis- sion, distribution, and sale of natural gas and relat- ed products During the past 12 months, a repre- sentative period, the Employer derived gross reve nues of $250,000 and purchased and received at its District of Columbia facilities goods and materials valued in excess of $50,000 directly from points outside the District of Columbia The Employer is now, and has been at all material times, an employ er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act We further find that the Respondent is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICE The issue is whether the Respondent has violated Section 8(b)(1)(A) of the Act by demanding that the Charging Party pay the Respondent a new ini tiation fee or be discharged after she had resigned her full union membership , but had paid monthly dues to the Respondent whenever she was legally required to do so under the collective-bargaining agreement between the Respondent and the Em- ployer A Facts The parties' stipulation shows that before Febru- ary 1, 1987, the Charging Party worked at the Em ployer's Springfield, Virginia facility As of Febru- ary 1, 1987, she was transferred to the Employer's work location in Rockville, Maryland The Em- ployer's clerical employees, including the Charging Party, at both locations are part of the same bar gaining unit and are covered by the same collec tive-bargaining agreement between the Respondent and the Employer, effective from June 23, 1986, to June 1, 1989 From June 6 to June 22, 1986, the bargaining unit employees participated in an eco nomic strike The complaint alleges, and the Respondent admits, that around October 1974 the Charging Party became a member of the Respondent, paid the initiation fee, and executed a union dues check- 292 NLRB No 22 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD off authorization However, about June 5, 1986, the day before a strike began, the Charging Party re- signed from the Respondent and revoked her dues- checkoff authorization The agreement between the Respondent and the Employer contains a union-se curity provision providing that after a certain period persons employed by the Employer shall become union members or tender the equivalent dues as a condition of continued employment An affidavit from the Respondent's president, Donald M Haines, states that as Virginia law prohibits union-security provisions, the Charging Party's res- ignation was accepted and she was considered a nonmember According to Haines' affidavit, no fur- ther demands of any kind were made on the Charging Party until she was transferred by her Employer to Maryland The parties stipulated that, since March 1987, the Charging Party has met and maintained her "financial core membership obliga- tions," except for the payment of a new initiation fee 2 The Respondent admits the complaint allega tion that about April 29, 1987, it demanded that the Charging Party pay the Respondent a new initi ation fee or be discharged pursuant to the union security provision noted above B Contentions of the Parties In support of its Motion for Summary Judgment seeking dismissal of the complaint, the Respondent states that it did not demand a new initiation fee from the Charging Party because she had resigned in 1986 and revoked her dues-checkoff authoriza tion Rather, the Respondent states that once the Charging Party resigned she was a stranger to the Union and its constitution requires any person seeking to become a member to pay an initiation fee 3 The Respondent argues that the proviso to Section 8(b)(1)(A) provides that the right of a labor organization to determine its own rules regarding acquiring and retaining membership therein shall not be impaired by that section Thus, the Re- spondent concludes that it may legally require a new initiation fee from the Charging Party The General Counsel, in opposition to the Re- spondent's Motion for Summary Judgment and in support of her Cross-Motion for Summary Judg ment, states that the Charging Party had paid an initiation fee before resigning and is not a new em- ployee nor a new applicant for membership There- fore, the only difference between the Charging Party and other members of the bargaining unit is that she had exercised her right to resign The Re spondent's demand for another initiation fee, the General Counsel argues, therefore violates Section 8(b)(1)(A) The Charging Party contends that she has not sought to become a member of the Respondent since her resignation Further, she has continually met every "financial core" dues obligation to the Respondent that could lawfully be required There- fore, the Charging Party argues that as she has al ready paid an initiation fee and has continually been employed by the same employer within the same bargaining unit represented by the Respond ent at all times relevant, the demand for a second initiation fee is unlawful III DISCUSSION We agree with the General Counsel and the Charging Party 4 In Professional Engineers Local 151 (General Dy- namics), 272 NLRB 1051 (1984), the Board dealt with the interpretation and application of Section 8(b)(1)(A) of the Act in regard to a union's requir- ing second initiation fees from employees who had resigned full membership in the union In that case two employees had paid an initiation fee when hired but resigned their memberships during an economic strike When a new contract with a union-security clause became effective, the union informed those two employees that they had to re apply for membership and they were later in- formed that they had to pay another initiation fee even if they did not become full members The Board noted that the two employees had paid an initiation fee when hired, had paid periodic dues at all times when required to do so by contract, had maintained their status as employees of the employ- er at all times relevant, and had never left the unit The Board concluded "that the only difference be tween the Charging Parties and other unit members relied on by the Union to justify its assessment of additional initiation fees was their resignations " The Board therefore held "that the imposition of the additional initiation fees on the Charging Par ties acted as a penalty for the exercise of their Sec tion 7 rights " Id at 1052 2 By letter dated July 17 1987 the Respondents attorney informed the Charging Party that the Respondent would no longer seek to have her pay dues for February 1987 2 The Respondent notes that its constitution provides for the issuance of a withdrawal card to any member requesting same who is leaving the jurisdiction of the local union or the International Union These mem bers may re enter without payment of a new initiation fee The Respond ent indicates that the Charging Party made no request for such a card for which she was in any event ineligible ° We reject any implication in the Respondent s brief that the Charging Party was attempting to become a full member of the Respondent and was therefore rightly charged an initiation fee Rather it is clear that she only sought to fulfill her financial core obligations once she was trans ferred to the Maryland location in 1987 and the parties have stipulated that except for the payment of an initiation fee which is at issue in this case the Charging Party has met and maintained her financial core membership obligations since March 1987 OFFICE EMPLOYEES LOCAL 2 (WASHINGTON GAS) 119 Here, similarly, the Charging Party had paid an initiation fee, had paid periodic dues at all times when they could have legally been required of her, had maintained her status as an employee of the Employer at all times relevant and had never left the bargaining unit Under these circumstances, as in General Dynamics, the only difference between the Charging Party and other members of the bar- gaining unit which was relied on by the Respond ent to justify its assessment of a new initiation fee is that she exercised her right to resign We therefore conclude that the imposition of a second initiation fee on the Charging Party acted as a penalty against the Charging Party for her exercise of her Section 7 rights and find that the Respondent vio- lated Section 8(b)(1)(A) of the Act 5 Accordingly, the Respondent's Motion for Summary Judgment is denied, and the General Counsel's Cross-Motion for Summary Judgment is granted 6 CONCLUSIONS OF LAW 1 Washington Gas Light Company is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Respondent is a labor organization within the meaning of Section 2(5) of the Act 3 The Respondent, by demanding Janet Love pay a second initiation fee or be discharged pursu ant to the collective bargaining agreement in effect between the Respondent and the Employer, re strained and coerced her in the exercise of the rights guaranteed her by Section 7 of the Act, and thereby engaged in an unfair labor practice within the meaning of Section 8(b)(1)(A) of the Act 4 The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the mean ing of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act, we shall order it to cease and desist there from We shall also order the Respondent to re scind the unlawful demand for another initiation fee We shall also order the Respondent to post an appropriate notice to members 5 The Respondent attempts to distinguish General Dynamics arguing a relevant consideration in that case was that employees who retained their membership between contracts were not required to pay another initiation fee even though they were not required to pay dues during that period to maintain their membership in good standing The Board in its discussion however did not rely on that fact nor do we find it signifi cant here 6 See also Teamsters Local 439 (Tracy American Ready Mix) 281 NLRB 1232 (1986) enfd 837 F 2d 888 (9th Cir 1988) 1 The General Counsel requests that the Order include a visitatorial clause We find no need for such a remedial provision in the circum ORDER The National Labor Relations Board orders that the Respondent, Office and Professional Employees International Union, Local 2, AFL-CIO, its offi- cers, agents, and representatives, shall 1 Cease and desist from (a) Demanding or imposing initiation fees as a penalty against employees who resign from union membership, but who continue to tender dues as le gaily required by a valid union-security agreement (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 the unlawful demand for another ini- tiation fee which was made on Janet Love because of her act of resigning from the Union (b) Post at its business office and meeting hall copies of the attached notice marked "Appendix "8 Copies of the notice , on forms provided by the Re- gional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no tices to members 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 Washing- ton Gas Light Company, if willing, at all places where notices 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 stances of this case See Cherokee Marine Terminal 287 NLRB 1080 (1988) 8 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 all Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To 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 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT demand or impose initiation fees as a penalty against employees who resign from union membership , but who continue to tender dues as legally required by a valid union -security agreement 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 the initiation fee imposed on Janet Love because she resigned from union mem bership OFFICE AND PROFESSIONAL EMPLOY EES INTERNATIONAL UNION, LOCAL 2, AFL-CIO