AMF Wheel Goods Division

National Labor Relations Board - Board Decisions

Jan 10, 1980

247 N.L.R.B. 231 (N.L.R.B. 1980)

AMF WHEEL GOODS DIVISION
AMF Wheel Goods Division, a Division of AMF
Incorporated and Kenneth D. Schwartz'
United Employees Union #1 and Kenneth D.
Schwartz. Cases 14-CA-12775 and 14-CB-4570
January 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Upon charges which were filed by Kenneth D.
Schwartz on June 21 and July 10, 1979,2 and served on
the above-named Union and Employer, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 14, issued a consoli-
dated complaint on July 17, alleging that the Union
and the Employer violated Section 8(b)(1)(A) and
(b)2) and Section 8(a) 3 ) and (1) of the Act, respec-
tively. Copies of the charges, complaint, and notice of
hearing were duly served on the parties. Respondents
filed answers to the complaint denying the commis-
sion of unfair labor practices and requesting that the
complaint be dismissed.
On August 13 and 15, Respondents, the Charging
Party, and the General Counsel entered into a
stipulation of facts and filed a motion to transfer this
proceeding directly to the Board. All parties to the
stipulation waived the usual proceedings before an
administrative law judge, agreed that the charges,
complaint, and answers, in addition to the stipulation
of facts, would constitute the entire record herein, and
requested the Board to make findings of fact and
conclusions of law and to issue the appropriate
Decision and Order. On September 17, the Board
issued an order which transferred the proceeding to
the Board, approved the stipulation of facts, and set a
date for the filing of briefs. Thereafter, the parties filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record as
stipulated by the parties and the briefs and makes the
following:
Herein called the Charging Party or Schwartz.
'All dates below refer to 1979 unless otherwise indicated.
During the preceding 16 years. the employees were represented by a local
of the International Association of Machinists & Aerospace Workers, herein
called the IAM.
Arn. 3 provides in pertinent part as follows:
247 NLRB No. 45
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer, an Illinois corporation with its office
and place of business in Olney, Illinois, annually
manufactures, sells, and ships products valued in
excess of $50,000 to points outside the State of Illinois.
The Employer admits, and we find, that it is and has
been at all times material herein an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
l. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the Union
is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the
Act.
1II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The question presented is whether the Union and
the Employer, which are parties to a collective-bar-
gaining agreement containing a union-security clause,
respectively violated Section 8(b)(l)(A) and (bX2) and
Section 8(a)(3) and (1) of the Act when employee
Schwartz was discharged, at the Union's request,
because he tendered his dues in cash rather than by
check or money order and refused to execute a dues-
checkoff authorization.
B. The Facts
Following an election in January, the Board certi-
fied the Union as the exclusive representative of the
Employer's production and maintenance employees.'
Thereafter, they entered into a collective-bargaining
contract which contains a union-security agreement.
On or about February 12, Schwartz tendered $9 in
cash as payment of his dues for that month to the
Union's financial secretary, John D. Gardner, who
refused the tender on the ground that he could not
accept cash. On or about April 6, Schwartz tendered
S18 in cash as payment for his dues to Gardner which
the latter refused with the statement that a provision
(B) Any employee whose membership in the Union is terminated by
the Union by reason of his failure to tender the periodic dues uniformly
required as a condition of acquiring or retaining membership shall not be
retained in the unit covered by this contract.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union's constitution prohibited him from
accepting cash payments.5 Schwartz then asked, "Are
you aware that dollar bills are inscribed with the
notation, 'This note is legal tender for all debts, public
and private'?",
On May 20, Gardner notified Schwartz that he
would soon be 3 months delinquent in the payment of
his dues and that the Union would request termination
of his employment unless Schwartz paid his dues in
full by check, money order, or dues-checkoff authori-
zation' within the ensuing 2 weeks. On June 4,
Schwartz notified the Union of his willingness and
readiness to pay his dues in cash.
On June 12, Gardner notified Schwartz that he was
recommending that the Union request the Employer
to terminate Schwartz for nonpayment of dues. On the
following day, Union President Stephen A. Beck
notified the Employer that Schwartz was 4 months
delinquent in the payment of his dues and requested
his termination for that reason. On June 14, the
Employer acknowledged said request and notified
Schwartz that he would be terminated if a change in
his status with the Union was not received by June 19.
On June 18, Schwartz notified the Employer's
industrial relations supervisor, Wayne G. Griffin, that
he had tendered, and the Union had refused, his
payment of dues in cash. On the following day, the
Employer, which was aware of article 1, section 8, of
the Union's constitution, discharged Schwartz.
On July 20, the Employer offered to reinstate
Schwartz to his former position on July 22, but did not
offer to compensate him for the wages lost since his
discharge. Schwartz accepted the reinstatement offer
without waiving any right to backpay.
C. Contentions of the Parties
The General Counsel argues as follows in support of
the complaint:
The law since the Board's Decision in Union Starch
& Refining Company' has been that a labor organiza-
tion violates Section 8(b)(l)(A) and (b)(2) of the Act
when, pursuant to a union-security agreement, it seeks
the discharge of employees who have been denied
membership on grounds other than their failure to
tender periodic dues uniformly required as a condition
of employment. In addition, an employer violates
Section 8(a)(l) and (3) of the Act when it discharges
an employee, pursuant to a valid union-security
' Art. 1, sec. 8, of the constitution of the Union provides that. "All
payments to Union officials for any purpose whatsoever shall be by check or
money order made payable to the] Union.... No union official is
authorized to accept cash payments."
' Although Schwartz had paid his IAM dues by check, checkoff authoriza-
tion, and cash, he refused to pay his dues to the Union by check or money
order because on and after its certification he did not, and currently does not,
agreement, if it is aware that the employee has
tendered his periodic dues.
The Union may not properly seek the discharge of
an employee, who offers to pay dues in United States
currency, by invoking its internal policy which re-
quires payment by check or money order.9 Although
the General Counsel does not question the reasonable-
ness of that policy in determining an employee's
membership status, he does challenge the Union's
insistence on imposing upon employees additional
burdens, namely, the payment of fees for the purchase
of money orders or the necessity of establishing a
checking account, in order to protect their status as
employees. The Union also improperly pressured
Schwartz to forego his right under Section 7 of the Act
to refuse to execute a dues-checkoff authorization.
As the Employer knew or had reason to know that
Schwartz tendered his dues to the Union, it had
reasonable cause to believe that his membership in the
Union was being denied for reasons other than his
failure to tender periodic dues. Accordingly, by
discharging Schwartz, the Employer discriminated
against him in violation of Section 8(a)(3) and (1) of
the Act.
The Union argues as follows in contending that the
complaint should be dismissed:
The Supreme Court in N.L.R.B. v. General Motors
Corporation, 373 U.S. 734, 742 (1963), set forth the
test for determining the propriety of discharges
pursuant to union-security agreements: "It is permissi-
ble to condition employment upon membership, but
membership, insofar as it has significance to employ-
ment rights, may in turn be conditioned only upon
payment of. . . dues. 'Membership' as a condition of
employment is whittled down to its financial core."
The Union did not deviate from the foregoing test
when it established a rule as to the form of the
payment. Schwartz' offer to pay in cash was properly
rejected by the union as an unreasonable medium in
view of the employees' concern about the disappear-
ance of funds during IAM's tenure. Thus, the newly
certified Union, which replaced the IAM, justifiably
instituted the requirement of payment by check or
money order in order to deal with that problem. If
Schwartz wished to avoid the slight additional cost of
meeting that requirement, he could have voluntarily
signed a checkoff authorization.
The Employer contends in agreement with the
Union that the latter legitimately requested Schwartz'
maintain a checking account and because of the extra expense required to
purchase a money order.
' Art. IV of the collective-bargaining contract provides for a checkoff of
dues upon receipt of "individual authorization."
'87 NLRB 779, 784 (1949), enfd. 186 F.2d 1008 (7th Cir. 1981).
'Schwartz also advanced this argument in his brief
232
discharge and that it did not engage in unlawful
conduct by complying with that request.
D. Analysis and Conclusion
As indicated above, the issue herein is whether the
Union and the Employer, which had a union-security
agreement, respectively violated Section 8(b)( )(A)
and (b)(2) and Section 8(a)(3) and (1) of the Act'0
when Schwartz, who tendered his dues in cash, was
discharged at the behest of the Union on the ground
that he lost his membership by failing to comply with
the Union's requirement that dues be paid only by
check or money order or with the Union's alternative
request that he execute a dues-checkoff authorization.
Pertinent to this proceeding are (1) the second
proviso to Section 8(a)(3) of the Act to the effect that
the burdens of membership upon which employment
may be conditioned are expressly limited to the
payment of periodic dues, and (2) the first proviso to
Section 8(b)(l)(A) of the Act which protects the right
of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership.
The Union misapplies N.L.R.B. v. General Motors
Corporation, supra, wherein the Supreme Court held
that union "membership, insofar as it has significance
to employment rights, may in turn be conditioned only
upon payment of fees and dues [and that therefore]
'membership' as a condition of employment is whittled
down to its financial core."" Contrary to the Union,
we find that its refusal to accept cash, which is legal
tender, and its insistence on the payment of dues by
money order or check went beyond the "financial
core" by imposing on Schwartz a burden which
exceeded the statutory requirement of payment of
periodic dues. Although the Union was free under the
first proviso to Section 8(b)(1)(A) to prescribe its own
rules with respect to the acquisition or retention of
membership, its ability to enforce such rules, however
reasonable, is restricted by barring enforcement of a
union's internal regulation to affect a member's
., The relevant parts of Sec. 8 provide as follows:
(a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7;
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization: . . Provided . . , That no
employer shall justify any discriminationl against an employee for
nonmembership in a labor organization . . . (B) if he has reasonable
grounds for believing that membership was denied or terminated for
reasons other than the failure of the employee to tender the periodic
dues . . uniformly required as a condition of acquiring or retaining
membership. ....
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7: Provided. That this paragraph shall not impair
AMF WHEEL GOODS DIVISION
employment status.'" Thus, if a union imposes any
qualification or condition for membership other than
the payment of periodic dues with which an employee
is unwilling to comply, such an employee may not be
entitled to membership, but he is entitled to keep his
job. '
Finally, as it is well established that an employee
has a right under Section 7 of the Act to refuse to sign
an authorization card for a dues checkoff, the Union
could not properly resort to the leverage of its check
or money order rule to coerce Schwartz into the
alternative course of executing such an authorization
against his will."
In view of the foregoing, we conclude as follows:
As the Employer discharged Schwartz, despite its
knowledge that he had tendered periodic dues, it
violated Section 8(a)(3) of the Act and thereby
interfered with, restrained, and coerced him in viola-
tion of Section 8(a)(1) of the Act. As the Union caused
the Employer to discriminate against Schwartz by
discharging him, it violated Section 8(b)(2) of the Act,
thereby restaining and coercing him in violation of
Section 8(b)(l)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondents set forth in section
III, above, occurring in connection with the employ-
er's operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1, AMF Wheel Goods Division, a Division of AMF
Incorporated, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the the
Act.
the right of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein:
(2) to cause or attempt to cause an employer to discriminate against
an employee . . . with respect to whom membership in such
organization has been denied or terminated on some ground other than
his failure to tender the periodic dues . . . uniformly required as a
condition of acquiring or retaining membership
"In this connection, the Supreme Court refers to its statement in The
Radio Officers' Union of the Commercial Telegraphers Union. FL (Bull
Steamship Co.] v. N.L.R.B., 347 U.S. 17. 41 (1954), that "legislative history
clearly indicates that Congress intended to prevent utilization of union
security agreements for any purplxse other than to compel payment of union
dues and fees."
" N.L.R.B. v. Allis.Chalmers Mfg. Co.. 388 U.S. 175, 195 (1967).
" See Union Starch & Refining Co.. supra. See also International
Longshoremen's and Warehousemen's Union, Local /3 (Pacific Maritime
A.ssociation), 228 NLRB 1383. 1385 (1977), and the cases cited therein.
" International Union of Electrical. Radio and M.fachine Workers. Local 601,
AFL-CIO (Westinghouse Electric Corporation). 180 NLRB 1062 (1970).
233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. United Employees Union #1 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discharging Kenneth D. Schwartz despite its
knowledge that he had tendered periodic dues, the
Employer violated Section 8(a)(3) and (1) of the Act.
4. By causing the Employer to discharge Schwartz,
who tendered his dues in cash and refused to pay by
check or money order or to agree to a checkoff of his
dues, the Union violated Section 8(b)(1)(A) and (b)(2)
of the Act.
THE REMEDY
Having found that Respondents engaged in unfair
labor practices within the meaning of Section 8(a)(3)
and (1) and Section 8(b)(l)(A) and (B)(2) of the Act,
we shall order them to cease and desist therefrom and
take certain affirmative action designed to effectuate
the policies of the Act.
As we have found that both the Employer and the
Union are responsible for the discrimination suffered
by Kenneth D. Schwartz, we shall order them jointly
and severally to make him whole for any loss of
earnings incurred from the date of his discharge on
June 19, 1979, to his reinstatement on July 22, 1979,
with backpay to be computed in the manner pre-
scribed in F W Woolworth Company, 90 NLRB 289
(1950), and with interest thereon as prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).''
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent AMF Wheel Goods Division, a
Division of AMF Incorporated, Olney, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in United Employees
Union # I or any other labor organization by dis-
charging employees who tender periodic dues to the
Union in cash, but refuse to pay by money order or
cash or agree to a dues checkoff.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Jointly and severally with United Employees
Union # I make whole Kenneth D. Schwartz for the
loss of earnings resulting from the discrimination
"See, generally, Isis Plumbing d Heating Co.. 138 NLRB 716(1962).
"In the event that 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
against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its plant in Olney, Illinois, copies of the
attached notice marked "Appendix A."16 Copies of
said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by a
representative of the Employer, shall be posted by the
Employer immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Employer to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Post at the same places and under the same
conditions as set forth in (c) above, as soon as
forwarded by the Regional Director, copies of the
Union's attached notice marked "Appendix B."
(e) Sign and return by mail to the Regional
Director, immediately upon receipt from him, copies
of "Appendix A" for posting by the Union.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Employer has taken to comply here-
with.
B. Respondent United Employees #1, its officers,
agents, and representatives, shall:
i. Cease and desist from:
(a) Causing or attempting to cause the Employer to
discriminate against Kenneth A. Schwartz by dis-
charging him in violation of Section 8(a)(3) and (1) of
the Act after his tender of periodic dues in cash and
his refusal to pay by check or money order or agree to
a dues checkoff.
(b) In any like or related manner restraining or
coercing employees of the Employer in the exercise of
the rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Jointly and severally with the Employer make
whole Kenneth D. Schwartz for the loss of earnings
resulting from the discrimination suffered by him in
the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Post in conspicuous places in the Union's
business office, meeting hall, and other places where
National 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."
234
AMF WHEEL GOODS DIVISION
notices to its members are customarily posted copies
of the attached notice marked "Appendix B."" Copies
of said notice, on forms provided by the Regional
Director for Region 14, after being signed by a
representative of the Union, shall be posted by the
Union immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by the Union to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Post at the same places and under the same
conditions as set forth in (b) above, as soon as
forwarded by the Regional Director, copies of "Ap-
pendix A."
(d) Sign and mail to the Regional Director, immedi-
ately upon receipt from him, copies of "Appendix B"
for posting by the Employer.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Union has taken to comply herewith.
' See fn. 16. supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence, the National Labor Relations
Board has found that we committed certain unfair
labor practices and has ordered us to post this notice.
We intend to abide by the following:
WE WILL NOT, upon the request of United
Employees Union #1, discharge any employee
who offers to pay his dues in cash and refuses to
pay by check or money order or sign a checkoff
authorization against his will.
WE WILL, jointly and severally with United
Employees Union # 1, pay Kenneth D. Schwartz
the earnings he lost from the date of his discharge
until his reinstatement on July 22, 1979, plus
interest.
AMF WHEEL GOODS DIVISION, A DIVI-
SION OF AMF INCORPORATED
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence, the National Labor Relations
Board has found that we committed certain unfair
labor practices and has ordered us to post this notice.
We intend to abide by the following:
WE WILL NOT require any employee, in order
to keep his job, to pay his dues by check or money
order instead of cash or to sign a checkoff
authorization against his will.
WE WILL, jointly and severally with AMF
Wheel Goods Division, a Division of AMF
Incorporated, pay Kenneth D. Schwartz the
earnings he lost from the date of his discharge
until his reinstatement on July 22, 1979, plus
interest.
UNITED EMPLOYEES UNION # I
235