Detroit Mailers Union No. 40

National Labor Relations Board - Board Decisions

Aug 24, 1971

192 N.L.R.B. 951 (N.L.R.B. 1971)

DETROIT MAILERS UNION NO. 40 951
Detroit Mailers Union No. 40, International Typo-
graphical Union, AFL-CIO andDetroit Newspaper
Publishers Association; Evening News Association,
"The Detroit News"; and Knight Newspapers, Inc.,
"The Detroit Free Press" and George Murphy and
Theodore Mansour and Victor Landau and Nathan-
iel Banks and George Scandrett and Henry W.
Fitzgerald and John W. Johnson and Larry H.
Lewis. Cases 7-CB-1863(l), (2), & (3),
7-CB-1875(1) & (2), 7-CB-1877, 7-CB-1889,
- 7-CB-1909,7-CB-2035, and 7-CB-1889(2)
August 24, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
BROWN, AND JENKINS
On July 22, 1970, Trial Examiner Louis Libbin
issued his Decision in the above-entitled proceeding,
finding' that the Respondent had engaged' in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in - certain other unfair labor practices, and
recommended that such allegations of the complaint
be dismissed. Thereafter, the Respondent and In-
tervenor, Detroit Mailers Union No. 40, Internation-
al Typographical Union, AFL-CIO, filed exceptions
to the Decision and a supporting brief, and the
General Counsel and Charging Parties filed answer-
ing briefs.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent
herewith. `
The complaint in this proceeding alleged, and the
Trial Examiner, disposed of, various counts of
Section 8(b)(1)(A) and (2) violations. Exceptions
were taken only from his disposition of those counts
relating to certain portions of the Union's dues which
some employees refused to pay and were thereby
marked for discharge and otherwise discriminated
against at the Union's behest.
The regular dues collected under the union-security
agreement include, pursuant to the constitution of
the Intervenor, International Typographical Union
(ITU), 2-1/2 percent of gross earnings for the
establishment and maintenance of an old age
192 NLRB No. 107
pension and mortuary fund, and a monthly per
capita tax of $1, half (50 cents) of which goes to a
union printers home fund. Employees' tenders of
dues which did not include the 2-1/2 percent and
half of the per capita tax were rejected by the Union.
The dues tendered by these employees were in an
amount equal to the, disputed portion, the dues
structure being divided equally between disputed and
concededly valid "periodic dues" and totalling 5
percent of gross earnings ,plus the $1 per capita tax.
The pension and mortuary funds, administered by
the ITU, are separate, but related. They both have
existed for over 50 years. Moneys from the 2-1/2
percent levy are allocated to the mortuary fund so
that it is maintained at a level of $1 million-and all
additional amounts go to the pension fund. The
pension fund has no connection with any negotiated
pension program and isfinanced solely through dues
payments. The union printers home fund is adminis-
tered by a union printers home corporation, and is
'apparently financed solely out of the portion of the
percapita tax allocated to -it. The home is owned by
the, corporation, and has been in operation since
approximately 1892.
' Moneys from the pension and mortuary 'funds,
though' not the union printers home fund, are
available to the ITU for emergencies. Thus,-the ITU
executive council may transfer up to $1 million from
the pension or mortuary fund to one or more of the
.general, operational, or strike'funds of the ITU, "to
maintain the integrity of this organization." Amounts
in excess of $1 million may be transferred by
referendum of the membership. Such transfers are
regarded by the ITU, internally, as noninterest-
bearing loans, and as a matter of practice are usually
repaid to the funds from which, the transfers
originated. In fact, 10 transfers have been made from
the pension and mortuary funds in the last 61 years.
Nine of these had been repaid- at the time of the
hearing. The 10th was a transfer of $2,656,812 from
the mortuary fund' in 1952, which has not been
repaid.
The Trial Examiner concluded that the disputed
portions of the dues and per capita tax are not
"periodic dues" which may be required under the
union-security agreement. He found that the pension
and mortuary funds and the printers home fund are
special purpose funds which are not related to the
cost of collective bargaining, and he concluded from
this that making the payment of these levies a
condition of employment violated Section 8(b)(2)
and 8(b)(1)(A) of the Act.
We do not agree. Section 8(a)(3) authorizes a union
to require all employees whom it represents and who
are covered by a valid union security agreement to
pay all "periodic dues . . . uniformly required as a
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of acquiring or retaining [union] member-
ship." Neither on its face nor in the congressional
purpose -behind this provision can any warrant be
found for making any distinction here between dues
which may be allocated for collective-bargaining
purposes and those earmarked for institutional
expenses of the union. As recognized by the Supreme
Court in the Schermerhorn case,' "dues collected
from members may be used for a 'variety of
purposes, in addition to meeting the union's costs of
collective bargaining.' Unions "rather typically' use
their membership, dues Fto do those things which the
members authorized the union to do in their interest
and on their behalf.' "2 By virtue of Section 8(a)(3),
such dues may be required from an employee under
a union-security contract so long as they are periodic
and uniformly required and are not devoted to a
purpose which-would make their mandatory extrac-
tion otherwise inimical to public policy 3 It accord-
ingly follows that the complainants in this case could
not satisfy the valid,, requirements of the union-
security contract invoked against them by tendering
only that portion of the dues which they regarded as
covering the costs of collective bargaining.
Nobody contends here that the dues were other
than periodic and uniformly, required, or that their
designated, or actual use was inimical to public
policy. Indeed, it clearly appears that the-levies in
question have for many years been a regular part of
the Union's dues structure and are permanently
committed to, uses which the membership deems
beneficial to the Union as an institution. The
complainants were obligated to tender the dues
demanded, and having, failed in this obligation, were
properly subject to the Union's invocation of its
union-security agreement against them.
In reaching, his conclusion, the Trial Examiner
relied on the Board's decision in Local 959, Team-
sters, (RCA Service Co.), 167 NLRB, 1042. In our
view, that case is distinguishable and is not control-
ling precedent under the facts present here. In that
case the union membership had recently voted upon
itself a "temporary assessment" of 10 cents an hour
per, member, which was later incorporated into the
regular dues structure as "working dues," and still
later enforced under the union-security clause
contained in the collective-bargaining agreement
with the employer of its members . The assessment
was, designated for the financing of a union building
program and a credit union and more than half of
each member's added assessment was deposited to
his account in the credit union, subject to withdraw-
al. Another portion .of the assessment, was contribut-
ed to the building fund, but was, subject to redemp-
1 Retail Clerks v. Schermerhora, 373 U.S. 746.
2 373 U .S. at 753-754.,See' also N.L.R.R. v. General Motors Corp., 373
tion by the members, if they remained in, -good
standing. In short, the', union' treasury - might never
have received 90 percent of the funds collected,under
the assessment. In these circumstances,' and where
the union itself regarded the levy,as an "assessment,"
the Board concluded that it- did; not .constitute
"periodic dues" within the- meaning of the union-
security proviso to Section 8(a)(3) of the Act.
Accordingly, for the reasons set forth above, we
shall dismiss the allegations of the complaint with
respect to Respondent's action in enforcing payment
of the disputed dues and per capita tax.
ORDER,
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Detroit Mailers Union No., 40,, International Typo-
graphical Union, AFL-CIO, its officers, agents, and
representatives,, shall -take the action set forth in the
Trial Examiner's Recommended Order as modified
herein:
1. Delete paragraphs l(a), (b), and (c),and 2(a)
and (b) and renumber the remaining paragraphs
accordingly.
2. Omit from present paragraph,2(c) the passage,
"Victor Landau, and all employees who were refused
inter-chapel referrals for the same reason as Lan-
dau."
3. In footnote 14 of the Trial Examiner's Decision
change "10" to "20" days.
4. Substitute the notice attached hereto for the
Trial Examiner's notice.
MEMBER .iENKINS, dissenting:
I would find that the disputed portions of the dues
and per capita tax are not "periodic dues" which may
be required under the union-security agreement. In
my view, the pension and mortuary funds and the
printers home fund are special purpose funds which
are not related to the cost ' of collective bargaining,
and making the payment of these levies a, condition
of employment violated Section 8(b)(2) and
8(b)(1)(A) of the Act.
Contrary to my colleagues, I find Local 959,
Teamsters, 167 NLRB 1042, 1045, controlling preced-
ent. In that case the Board fully considered the scope
of "periodic dues" under the proviso to Section
8(a)(3), and noted:
The term "periodic dues" is statutory, and we are
bound to interpret it in accordance with its
legislative history and the interpretation placed
U.S. 734,737,741-744.
3 Cf. International Assn. of Machinists v. Street, 367 U.S. 740.
DETROIT MAILERS UNION NO. 40 953
upon it by the courts. The Supreme Court in the
Radio Officers case stated:
This legislative history clearly indicates that
Congress intended to prevent utilization of
union security agreements for any purpose
other than to compel payment of union dues
and fees. Thus Congress recognized the
validity of unions' concern about "free
riders," i.e., employees who receive the
benefits of union representation but are
unwilling to contribute their share of finan-
cial support to such union, and gave unions
the power to contract to -meet that problem
while withholding from unions the power to
cause the discharge of employees for any
other reason. [Footnote omitted.]
Thereafter, the Board held that:
... the right to charge "periodic dues" granted
unions by the proviso to Section 8(a)(3) is
concerned exclusively with the concept that those
enjoying the benefits of collective bargaining
should bear their fair share of the cost incurred by
the 'collective-bargaining agent in representing
them..
and continuing:
... it is manifest that dues that do not
contribute, and that are not intended to contrib-
ute, to the cost of operation of a union in its
capacity as a collective-bargaining agent cannot
be justified as necessary for the elimination of
"free riders."[p. 10451
Applying the foregoing principles, the Board
concluded that moneys collected for 'a credit union
or building fund, despite their beneficial nature to
the union and its membership, were funds which
were not required for the maintenance of the union
as -an organization and which could be terminated
without affecting the continued existence of the
union as bargaining representative and therefore
could not- be levied as a condition of employment.
Clearly, the funds in issue in this case , whether or
not they-' were labeled by' the union as - an
"assessment," fall in the same mold as the credit
union and, building fund in Local 959, Teamsters.
Thus, the Union recognizes the distinction in the
levies collected because it labels funds received from
its General Fund, - Strike Benefit Fund, and its
Defense Fund underthe heading of "Receipts and
Expenditures for Trade Union Activities." On the
other hand, it lists that portion of the dues collected
for the Pension and Mortuary Fund and the Union
Printer's Home- as "Receipts- and Expenditures for
Fraternal Activities." Indeed, with respect to the
Union Printer's, Home, the Union ' merely acts as a
conduit for the dues because the funds are trans-
ferred to, controlled by, and administered by the
Union Printer's Home , Inc., a separate and inde-
pendent corporation . Furthermore, the restrictive
eligibility requirements of the funds, benefiting only
a portion of the unit employees , serves as additional
evidence of the nature of these funds, as special
purpose funds.
It is crystal clear, in my view, that the "fraternal
activities" of the Union are, not related to nor are
they necessary to the continuance of the Union as a
collective-bargaining representative ---one of the re-
quirements set forth in Local 959, Teamsters. Accord-
ingly, I would find , as did the Trial Examiner, that
the assessment for the Pension and Mortuary,Fund
and the 50-cent per month per capita tax for the
Union Printer's Home are not "periodic dues" as
that term is used in the union-security proviso to
Section 8(a)(3) and may riot be collected from the
unit employees as a condition of' employment.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to refer Harry Lewis, Joe
Davidson, Fred Davidson, or any other unit
employees or applicants , because 'of resentment
over their failure or the failure of their local to
join our Union.
WE WILL NOT' collect or charge daily referral
fees as a condition of employment from unit
employees who did not gain employment through
our referral system or efforts.
WE WILL NOT in any other manner restrain or
coerce employees or applicants for employment
in the exercise of their rights guaranteed in
Section 7 of the Act.
WE WILL make whole Harry, Lewis, Joe
Davidson, and Fred Davidson for any loss of
wages they may have suffered as a result of our
refusal to refer them for employment.
WE WIY L reimburse all employees for referral
fees exacted from them when no referrals were
made, with 6 percent interest.
DETROIT MAILERS
UNION No. 40
INTERNATIONAL
TYPOGRAPHICAL UNION,
AFL-CIO
(Labor Organization)
Dated By -
(Representative) (Title)
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced
by- anyone.
This notice must remain posted for 60 consecutive
days from, the date of posting and must not be
altered, defaced, or-covered by any other material.
Any questions concerning this notice or compli-
ance with ' its , provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone
313226-3200.-
TRIAL EXAMINER'S DECISION
'STATEMENT OF THE CASE
-Louts LlBkN,,_ Trial:.Examiner: Upon charges and
amended charges filed, • an November 20 and 22 and
December 2,,9,, .and 27, 196, and on February 4 and 19,
March 5, September; 17, and November 24, 1969, by,the
individual and Newspaper Charging Parties listed in the
caption, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 7
(Detroit, Michigan), issued an order consolidating cases, a
consolidated complaint and amendments to consolidated
complaint, dated 'August 8, October 31, and December 2,
1969, against Detroit Mailers Union No. 40, International
Typographical Union, .AFL-CIO, herein sometimes called
the Respondent or ITU Local 40. With respect to the
unfair labor practices, the consolidated complaint, as
amended,, alleges, and Respondent's, duly filed answer as
amended denies,,- that Respondent engaged in conduct
violative of Section 8(bx1)(A) and (2) of the Act.
This case was tried before me at Detroit, Michigan, from
February 24 to 27, 1969, inclusive, and from March 9 to 10,
1969; inclusive. All parties appeared,, were represented by
counsel, and were given full opportunity to participate in
said trial. The International Typographical Union,' herein
called the ITU, was permitted to intervene to the extent of
its interest and its counsel participated in said trial. On
May 12, J970, counsel for,the General Counsel, for the
Respondent,, and for" the individual Charging Parties filed
timely bidswhich I have fully considered.2
for the reasons hereinafter indicated, I find that
Respondent -violated Section 8(b)(1)(A) and (2) of'the Act
only in certain specific - respects. -
Upon the' entire 'record in "the case,3 and from my
observation of the, demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
The "Detroit News," which is owned and published by
the Evening News-Association, a Michigan corporation,
and the "Detroit Free Press," which is owned and
The motion of the International Typographical Union to invervene to
the extent of its interest was granted without objection.
$ On May 20, 1970, the ITU filed a brief limited to the issues raised by
par. 13 of the complaint. Although two extensions of time for the filing of
briefs were granted, one at the request of Respondent and the other at the
request of the ITU, this brief was filed,8 days after the due date without any
published by Knight,Newspapers, Inc., an Ohio corpora-
tion, are each engaged at Detroit, Michigan, in publishing
a daily and Sunday, newspaper and in related, operations.
During the calendar. year 1968, "The Detroit News" and
the "Detroit Free Press" each had a gross revenue in excess
of $1 million,' held membership in or subscribed to various
interstate news services (including United Press Interna-
tional and Associated Press), published-various-nationally
syndicated features, advertised various nationally sold
products (the revenue from which annually- exceeds
$500,000), and purchased nand caused newsprint,,ink, and
other goods and materials, valued in excess of $500,000, to
be_transported to its place of business in Detroit, Michigan,
from locations outside the State of'Michgan.
Upon the above admitted facts, 'I find, as Respondent
also admits in its answer, that "The Detroit News" and the
"Detroit Free Press" are each- an' employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. ' -
IL THE RESPONDENT
The complaint alleges, the answer admits, the record
shows, and I find that Detroit Mailers Union No. 40,
International Typographical' Unions AFL-CIO, `Respon-
dent herein, is a labor' organization within the meaning of
Section 2(5) of the Act.
III. THE ' UNFAIR LABOR PRACTICES
A. Introduction, the Issues
In April 1968 , Respondent was certified by the,,Board as
the exclusive collective-bargaining agent for a single unit of
the mailroom employees at the Detroit News" and the
"Detroit Free Press," hereinafter referred to, as the News
and the Free Press. Thereafter , Respondent ,and the News
and Free Press, both of which newspapers bargained
through the agency of the Detroit Newspaper Publishers
Association, executed a collective-bargaining agreement
covering the employees in the certified unit and. effective
from August 5 , 1968, to June 17, ' 971. Although- the
agreement contained a valid - union-security -clause, a large
number of mailers at the News and:-a, smaller number at
the Free Press did not wish to become members of. the
Respondent after the,prescribed waiting period., Most of
these mailers continued to retain their membership in
Local 4 of the International Mailers , Union,' herein
sometimes called IMU,- which - was the previous exclusive
collective-bargaining agent for the mailers in the same unit.
This case involves a number of ;issues posed by -the'
numerous unfair labor practice allegations. Respondent is
alleged- to have engaged , in various .kinds of unlawful
conduct' which coniveniently may be placed into the
following three groups : (1) that relating, to Respondent's
dues, structure, (2) that relating to.,nonmembership in, or ,
explanation for - its untimeliness . Under the circumstances, I have not
considered the ITU brief because it was untimely filed,
s I hereby note and correct the following obvious, inadvertent error in
the typewritten transcript of the testimony : On 1. 19 of p. 468, the words
"New York" are changed to read "Newark."
DETROIT MAILERS UNION NO. 40 955
lack of adherence to, Respondent, and -(3) that relating to
Respondent's- referral fees.
The first group includes allegations that the dues
payments required as a condition of employment under the
union-security clause of the current collective-bargaining
agreement include certain assessments and per capita tax
which are not - "periodic, dues" that may be. uniformly
required as a condition of acquiring or retaining member-
ship in a union within the intent of the union-security
proviso to Section 8(a)(3) of the Act,. that Respondent
attempted to cause the News and the Free Press to
discharge certain, unit- employees who failed to pay their
monthly dues because it included said assessments-and per
capita tax, and that Respondent refused to refer certain of
the foregoing unit employees for shifts at .the-News and
Free Press because they failed-to pay their monthly dues
for the same reason . Respondent admits that the assess-
ments and per capita tax in question constitute part of the
monthly dues, payment -of which is -required as a condition
of employment under the union-security' clause, of the
agreement, but contends that- said assessments and per
capita tax are "periodic dues" within the intent of the
union-security proviso to Section 8(a)(3) of the Act. It
admits that it attempted to cause the News and Free Press
to discharge certain employees, and has refused to refer
certain unit employees to the News and Free Press for
failing to pay the monthly dues because it included said
assessments andper capita tax. It contends however that its
conduct - in these respects was not unlawful as such
assessments and per' -capita tax are "periodic dues" within
the meaning of the union-securitycurity proviso of Section
8(a)(3). Thus, resolution of the foregoing allegations
depends on the validity of Respondent's dues structure
which includes said assessments and per capita tax as part
of the monthly dues required to be paid as a condition of
employment under the union-security clause of the
collective-bargaining agreement.
The second group includes allegations that Respondent
refused to refer certain named unit employees to the News
or Free Press because of lack of membership in or
adherence to ' Respondent, that it refused to refer certain
named individuals for temporary or permanent employ-
ment at the News because they were members of Local 45
of IMU and -said =Local merged with Local 4 of IMU
instead of with Respondent, and that it attempted to cause
the News to discharge certain named unit employees
because of their lack of membership iii-Respondent and
because they were ,hired directly by the News. Respondent
denies that it engaged in the conduct recited in these
allegations or that- it acted for the reasons set forth therein.
These allegations therefore primarily involve factual issues.
The third group includes allegations that Respondent
charged and-collected daily 'referral fees as a condition of
employment from newly hired unit employees who did not
gain employment through Respondent's; referral system,
and has exacted as a condition of continued employment
from unit employees who made use of the referral, system
daily referral `fees which are excessive. With respect to the
first allegation, Respondent admits having collected such
referral fees, that such collections were unlawful, and that
this practice has long ceased . With respect to the second
allegation , Respondent denies that the referral fees ,which it
exacted; are in fact excessive . The latter allegation thus
raises a legal as well as a factual issue.
B. Allegations Relating to Dues Structure
1. The dues structure
The, facts relating to Respondent's dues structure are not
in dispute, Section 3 of the collective-bargaining agreement
contains a union-security clause which , requires as, , a
condition of employment that - unit employees, after the
permissible waiting -period, become and remain good-
standing members of Respondent "to the extent of paying
an- -initiation fee and the, membership dues uniformly
required as a condition of acquiring or maintaining
membership in the (Respondent) Union." After the
execution of the union-security -agreement and following
repeated inquiries, the unit employees were informed by
Respondent ' that: -
The periodic dues uniformly required as a condition
for acquiring or retaining-membership' in Detroit
Mailers Union No. 40 (ITU) are'at the present time five
percent (5%) of gross wages , plus $1.00 . This is
pursuant to the requirements of the laws of D.M.U.
No. 40'and-as required by the provisions -of Section 1,
Article - IX, ITU constitution adopted by referendum
vote of ITU members as follows:, '
Local dues . . . . . . . .
ITU Pension and Montuary Fund . . 2%
ITU Defense Fund
ITU Strike Benefit Fund . . . . . 1%
Total' . . ... . . . . . . 5% plus
$ 1.00 per capita
(a) Local dues
The local union dues of 1 percent of earnings, set forth in
article IX of Respondent's bylaws, goes into a general fund
used for the administration of Respondent as a collective-
bargaining agent.
(b) Defense fund
Article IX, section 14, of the ITU constitution provides
for the establishment of a, defense fund to be maintained at
a minimum level of $500,000. Funding is obtained through
a one-half percent levy on earnings of all members. When
the fund reaches,a level of $500,000, the levy is maintained
for an additional 3 months and is then rescinded until the
fund again falls below the $500,000 level. The defensive
purposes for which this fund is used, asset forth in the ITU
bylaws (Sec. 17, Art. XXI, and Sec. 2, Art. XIII), include
expenses involving strikes , lockouts, publicity, campaigns,
the establishment and, encouragement of enterprises to
compete with strike-bound plants, dispute settlement, and
the organization of new unions. Reports of the ITV's
secretary-treasurer for the years ending May 20, 1968, and
1969 show expenditures from this fund for the ITU's
training center, public relations and union Label, legal
services, salaries and expenses of ITU representatives,
956 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
special- assistance to various local unions , and for adminis-
tration expenses of the ITU and the defense fund itself.
(c) Strike benefit fund
Article IX, section 15, of the ITU constitution provides
for the establishment of a strike benefit fund at a minimum
level of $500,000. Funding is obtained through a 1-percent
levy on the total earnings of all active members . When the
assets of the fund fall below $500,000, the I -percent levy is
automatically ' imposed until; and for 3 months thereafter,
the fund is built back to the minimum level . The ITU
constitution provides that benefits from the strike fund are
to be paid only for strikes, lockouts, and to those out of
work by reason of the shutdown of a plant by the strike of
another union. - - -
(d) Mortuary_ and pension fund
The ITU constitution provides for the establishment of a
mortuary and pension fund . Funding is obtained through a
2-1/2-percent levy on the. earnings of its active members.
The moneys collected under, this 2-1 /2-percent levy are
allocated so that the mortuary fund is maintained at a level
of $1 million , with - the balance , allocated to the pension
fund. The purpose of the mortuary fund is to disburse
mortuary benefits to those who are ITU, members in good
standing at the time of death . The pension fund is
maintained for the purpose of "disbursing pensions to aged
and super annuated -members ." In order to be eligible for
pension benefits according to the ITU bylaws , members
over age 60 must have maintained continuous membership
in the ITU for a period of 25 years immediately antedating
application for pension benefits ; members under age 60
who claim benefits due to total and permanent disability
must have maintained continuous membership for a period
of 30 years immediately antedating application for bene-
fits.
(e) Per capita tax
(1) General fund
Article IX, section 1, of the ITU constitution provides
for the collection of a per capita tax of $1 per month. Fifty
cents of this tax is allocated to the ITU general fund which,
fund shall be used to defray all ITU expenses except for
disbursements for the pension and mortuary fund and the
printers' home fund (Sec. 7 of Art. IX). ITU annual income
statements show that the General Fund is used chiefly to
pay'dues,to affiliated bodies, to produce The Typographical
Journal, and to pay ITU administrative expenses.
(2) Union Printers' Home Fund
.,The- balance of the 50 cents of the $1 per capita tax is
allocated to the Union Printers' Home Fund. The ITU
constitution and bylaws contain no `basis for the 'creation
and maintenance of a union printers' home fund. The
Union Printers ' Home is an independent corporation
existing pursuant to a charter dated April 19, 1892.
Membership in the corporation is limited-to ITU members
in good standing. Among the objects of this corporation,, as
set forth in its charter, is the maintenance of a home for
aged and infirm union printers and the care of those union
printers residing therein . The physical plant of the home is
owned by the corporation pursuant to a, deed executed
May 17, 1892. Article II of the.constitution of the Union
Printers' Home restricts its inhabitants to ITU members in
good , standing. Applications for admission are required to
be made through the subordinate:local union of which the
prospective admittee is a member in good standing. In
addition, admittees are required to'be ITU members in
good standing for a minimum of 10 continuous years prior
to application. Particularized financial data relating to the
Union Printers' Home is contained, not in the reports of
the ITU secretary-treasurer, but in the reports of the
secretary-treasurer of the Union Printers' Home Corpora-
tion. This data reveals that the expenditures of the
corporation are limited to those related to the maintenance
of the home itself. -
(f) Interfund transfers
Under article IX, section 2, of the ITU constitution,, the
ITU executive council is ,empowered totransfer'amounts
up to $1 million from one fund to another to maintain the
integrity of the Union. Amounts in excess of $1 million
may be transferred from the pension or ' mortuary , fund
only after approval of the membership by referendum vote.
During the 61 years existence of the pension fund, moneys
have been transferred from that fund on four occasions,
once to the general fund and. three- times to'the strike
benefit fund. All have been repaid . Six transfers have been
made out of the `mortuary fund during , its 57, years of
existence ; two were ' to the -general fund and the remainder
to the defense fund or a special defense fund. All but the
last have been repaid . According to the undisputed
testimony of Francis McGlothi , assistant secretary-treas-
urer of the ITU, ,all moneys transferred from the funds
must be repaid . He further testified that the only difference
between inter-fund transfer and a bank loan was the'fact
that the money in an inter-fund transfer is "our (ITU)"
money and that "nobody could refuse , it" to the ITU.
2. Allegation that assessments for pension and
mortuary fund and 50 cents per capita tax for
Union Printers' Home are not "periodic dues"
within meaning of union-security proviso of
Section 8(aX3)
Counsel for the ITU admitted at the instant hearing that
the 2-1 /2 percent assessment for the pension and mortuary
Fund and the' 50 cents per capita `levy for the Union
Printers ' Home constitute part of the regular dues required
as a condition of acquiring and-retaining membership in
Respondent and that unit employees are required-to make
DETROIT MAILERS UNION NO. 40
these payments as a condition of employment under the
terms of the union-security agreement in effect with the
News and the Free Press. On the other hand, the complaint
alleges, and the General Counsel and the Charging Parties
contend, that -the foregoing assessment and levy do not fall
within - the meaning of the term "periodic dues" as
encompassed by the union-security proviso to Section
8(a)(3) of the Act.4
In Local 959, , Teamsters (RCA Service Co.), 167 NLRB
1042, the Board has had occasion to consider the- scope of
"periodic dues" under this proviso to Section 8(aX3). The
Board there stated that in accordance with the legislative
history and the interpretation placed upon that term by the
courts, "the right to charge `,,periodic dues' granted unions
by the proviso to Section 8(a)(3) is concerned exclusively
with the. concept that those enjoying the benefits of
collective bargaining should bear their fair share of the cost
incurred by the collective-bargaining agent in representing
them" and that "it is manifest that dues that do not
contribute, and that are not intended to contribute, to the
cost of operation of a union in its capacity as a collective-
bargaining agent, cannot be justified as necessary for the
elimination of 'free riders' (ibid, 1045). The Board
concluded in that case that moneys collected for a credit
union or building fund were for a "special purpose" and
not for the maintenance of the union as an organization
and accordingly could be terminated without affecting the
continued existence of the union as a bargaining represent-
ativee(ibid). The Board therefore held that, despite the
beneficial nature of the funds at issue in that case, they
could not be-collected from employees under r the terms of a
union-security provision upon pain of discharge.
In the instant case, the ITU itself acknowledges a
dichotomy of purpose between the levies collected for the
support of the general -expenses of the ITU,, its strike
benefit fund and its defense,fund, and the levies collected
for the pension and mortuary fund and the Union Printers'
Home . Thus, the 'former levies are grouped under the
heading of "Receipts and Expenditures for Trade Union
Activities" and the latter levies are grouped under the
heading "Receipts and Expenditures for Fraternal Activi-
ties." I agree with the General Counsel's contention in its
brief that "the fraternal activities of the ITU, as opposed to
its trade union, activities, do not appertain to -the continu-
ance of the ITU in general and the Respondent specifically
as a collective bargaining representative."
It is readily apparent that the purposes for which the
defense fund, the strike benefit fund, and the general fund
are used,,as previously detailed, appertain to the ITU as a
collective-bargaining representative and that they could
not be terminated without affecting the continued exist-
ence of the, ITU and Respondent as a bargaining
representative. The,same may not be said of the pension
and mortuary fund and the Union Printers' Home. These
funds, and home are not for the support and maintenance
of Respondent or the ITU as an organization but rather of
a "special purpose" nature divorced from the collective-
4 Insofar as here pertinent , the union-security proviso to Sec. 8(a)(3)
states that "no employer shall justify any discrimination against an
employee for nonmembership in a labor organization ... (B) if he has
reasonable grounds for believing that membership was denied or terminated
957
bargaining capacity of Respondent or the ITU. With
respect to the Union Printers' Home, the ITU and
Respondent merely act as a conduit for the collection of
the 50 cents per month levy which is directly controlled
and administered by-the Union Printers' Home, Inc. ITU's
lack of-control over this levy verifies the conclusion that it
does not constitute "periodic dues." That this levy and the
pension fund are not truly related to the cost of collective
bargaining is further demonstrated , by the fact that
Respondent has negotiated pension and welfare benefits
with employees which do not require full membership in
the ITU. Moreover, the pension and mortuary funds are
segregated funds which are limited by ITU's constitution
and bylaws to limited, special purposes, and fora limited,
special grouping of individuals, which do not include the
maintenance of the ITU as a collective-bargaining organi-
zation. These funds could readily be terminated without
affecting the continued existence of the ITU or the
Respondent as a bargaining representative.
While the purposes for which these funds have been
established are obviously of a beneficial nature and there is
no bar to their establishment or to the collection of the
levies for their support on a voluntary basis, they do not
contribute, and are not intended to contribute, to the cost
of operation of the ITU or Respondent in its capacity as a
collective-bargaining agent and they cannot be justified as
necessary for the elimination of "free riders." Moreover,
the fact that these levies are collected only when the funds
fall below set minimum levels , and with percentage
fluctuations when collected, points to the conclusion that
they not only are for a "special purpose" but also are not
susceptible of anticipation as a regular obligation and
therefore are an assessment uncollectible under a union-
security provision.5 Furthermore, the restrictive eligibility
requirements for participation in these funds further
emphasizes their nature as special purpose funds benefit-
ting only a portion of" the unit employees. These special
purpose funds may not be justified on the basis of, -inter-
fund transfers, as such transfers are admittedly in, the
nature of loans which must be repaid.
For each and all of the foregoing reasons, I find that the
assessment for the pension and mortuary fund and the 50
cents per month - per capita tax for- the Union Printers'
Home are not "periodic dues" as that term is used in the
union-security proviso to Section 8(a)(3) of the Act, and
hence may not be collected from the unit employees as a
condition of employment under the terms of the union-
security provision of the current agreement.
3. Allegation of an attempt, to cause the -
discharge of unit employees for failure to pay
monthly dues'
The complaint alleges that since about November 11,
1968, Respondent has attempted to cause the discharge of
all unit employees listed in appendix A of the complaint, as
amended, because they failed to pay their monthly dues for
the reason that said dues included the assessments and
for reasons ' other than the failure of the employee to tender the periodic
dues and initiation fees uniformly required as 'a condition of acquiring or
retaining membership."
5 Food Fair Stores, Inc., 131 NLRB 756, enfd. 307 F.2d 3 (C.A. 3).
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
levies in issue and that by such conduct Respondent
violated Section 8(b)(1)(A) ' and (2) of the Act.
Beginning about November 11, 1968, Respondent, by
letters to the News and Free Press, admittedly requested
the discharge of all unit employees listed inappendix A of
the,complaint, as amended, for failure to pay their dues
P-q't's^ : t to the terms of the union-security agreement then
ineffect. Although all these employees had paid Respon-
dent a sum equal to Respondent's initiation fee, Respon-
dent had rejected their additional tender of all moneys
required as dues minus the 2-1/2 percent allocated for the
pension and mortuary fund and the 50 centsper capita tax
allocated to the Union Printers' Home on the ground that
it would accept all or nothings
As I have 'found that Respondent could not lawfully
collect the assessments and levy for the pension and
mortuary fund and for the Union Printers' Home on
penalty of discharge, I find that, by attempting to cause the
discharge of the unit employees because of their refusal to
pay this assessment and levy, Respondent has violated
Section 8(bX2) and (1XA) of the Act.
4. Allegation of refusal to refer unit employees
for "outside" , or inter-chapel shifts for failure to
pay monthly dues
The complaint alleges that since about September 5,
1968 , Respondent has refused to refer certain unit
employees, of the News to "outside shifts" of the Free Press
and vice versa because they failed to pay the monthly dues
for the -above-stated reasons although Respondent was the
exclusive referral source for such "outside shifts" and that
by such conduct Respondent further violated Section
8(b)(1)(A) and (2) of the Act.
There is no dispute concerning the method followed by
Respondent and the News and Free Press- in handling
referrals for casual employment , opportunities in the
mailrooms. At the beginning of the week the respective
Employers prepare a schedule based on their, expected
production level for that week. They then fill the schedule
insofar as they are able with 5-day situations. (A 5-day
situation is a 5-shift workweek.) These 5-day situations are
filled by their employees who are on the priority list.
(Those on the priority list are full-time, regular employees.)
The Employer may then be ' left with the need for
employing additional employees in 'the mailroom to fill
open shifts which may be either 5-day situations or'may' be
scattered shifts through the week. By 5 p.m. on the
Saturday preceding the workweek, the Employer supplies
Respondent with lists showing the number' of 5-day
situations and scattered shifts to be filled by giving a list of
its needs, either to the chapel chairman or to Respondent's
office. Pursuant to section 36 of the collective-bargaining
agreement, Respondent has - the, first choice and the
obligation of attempting to fill these shifts. If, Respondent
is unable to fill these shifts within the time limits prescribed
,6 This finding is based on the undisputed testimony of unit employees
Myer Cohen, Theodore Mansour, and George Murphy phis the stipulation
of counsel for Respondent that the testimony of these witnesses would be
representative of all unit employees in this category . The dues tenders were
made to, and rejected by, the chapel chairman or the acting chapel
in the agreement, then the respective Employers may hire
casual employees from their own source.
In , filling these- open shifts (both , 5-day--situations and
others), Respondent gives preference , to the regular unit
employees working at the opposite newspaper by posting a
list of all the open shifts available ' at the News in the
mailroom of the Free Press and a similar list of open shifts
at the Free Press in the mailroom of the News . Mailroom
employees who desire to work extra shifts at the other
newspaper exercise their option -by- filling in, their nanie on
the list. Those shifts which remain -unfilled after this
posting are filled by Respondent's hiring hall.
Referral of ' News employees to the Free Press and vice
versa are called inter-chapel referrals , and the shift to
which the' employee is referred is called an "outside" shift.
The chapel chairman makes the inter-chapel referrals from
the names on the list by'advising the employees of the
inter-chapel shifts to which they are being referred, and
Respondent's office advises its chapel chairman of' the
identity of all those being referred . The chapel chairman
then notifies the Employer who is ' being referred in on
either an, inter-chapel or a casual 'basis to fill a shift.
Although eligible, News employee Victor Landau was
not given any inter-chapel referrals to `!outside" shifts after
November 18, 1968, because he had not paid his dues and
therefore was not a member in good standing . Landau had
tendered his initiation fee and was in the group, of
employees whose ,discharge was requested by Respondent
because they _ had not included in the moneys . which they
had tendered as dues the ITU assessments and levy for the
pension and mortuary fund and the 50 centsper capita tax
for the Union Printers ' Home, as , previously found.
Respondent admits that, acting through its chapel, chair-
man, it refused to refer for outside shifts, or refused ,to give
inter-chapel referrals to;some regular , employees in the
above-stated groups whose discharge it had requested for
nonpayment of dues, and that the failure to make these
referrals was also for the nonpayment of- the same dues.
Respondent also admits that Victor Landau is representa-
tive of this group . Respondent ' further " admits that its
conduct 'in this respect is' unlawful if its'requirement' that
unit employees pay the above -stated assessment and levy
on penalty of discharge is unlawful, a finding -which I have
already made. `
In view of my previous findings; I further find that by
refusing to make these - inter-chapel, referrals '" to unit
employees -because of 'their refusal to pay the 'ITU
assessment and, levy in issue, Respondent- has violated
Section '8(b (2) and (IXA) of the' Act: All parties have
agreed that, in the event of a finding adverse , to Respon-
dent's position on the ITU assessment and levy in issue, a
determination of which specific employees have been
discriminated against in respect to inter-chapel referrals
and the ' extent of such discrimination in each case will be
deferred to the compliance stage of this ' proceeding.
chairman or the assistant chapel chairman , all of whom I find, as the-record
overwhelmingly demonstrates are Respondent's agents, within the meaning
of Sec. - .(13) of the Act, for" whose 'conduct Respondent is liable.
Respondent no, longer disputes their agency status in its brief
DETROIT MAILERS UNION NO. 40
C. Allegations Relating to Nonmembership in, or
Lack of Adherence to, Respondent
1. Hiring procedures for-
a. Casual employment
Respondent was certified as the bargaining representa-
tive of the unit employees in April 1968, during the course
of a strike which had, begun in 1967. Prior to the
certification of Respondent, Detroit Mailers Union No. 4
of the IMU (Independent) had been _ ,the bargaining
representative of the unit employees for a substantial
number of years. In August 1968, negotiations were
concluded with Respondent for the current contract which
contains an exclusive referral system for casual employees.
As settlement of the strike approached, Respondent
became aware that it had no list, of casual employees which
it could use as a basis for making referrals to the News and
the Free Press and that it might take some- time for
Respondent to build its own list. Thomas McGrath, an
ITU International representative who had participated in
the contract negotiations, thereupon requested the News
and Free Press to furnish Respondent the names of all
casual employees who had "worked for them prior to the
strike. Such lists were supplied by the News and Free Press
at the end of July or the beginning - of August 1968.
However, these lists included not only the"casual employ-
ees who had previously been referred by the IMU but also
the names of any person who had worked for the News
and the Free Press regardless of whether he was a
journeyman from a job shop or a regular employee of the
News and Free Press.
Respondent first eliminated duplications and then struck
from the lists the names of those who were journeymen
mailers holding priority at the newspapers. The balance of
the lists was used as a nucleus for the referrals of casual
employees. Under McGrath's supervision, the lists were
divided among 10 employees in Respondent's office, with
instructions to find any missing telephone numbers and to
call for 'casual help. When it became apparent that an
insufficient' number of people would be coming to
Respondent's office to fill out- applications to start the list
for casual referrals, McGrath called the chapel chairman at
both newspapers and instructed them to get the word
around with respect, to the need for people to come to
Respondent's office to fill -out applications for casual
employment. McGrath also learned tha' some names of
employees who had worked as casuals prior to the strike
were missing from the above-stated lists submitted' by the
News and Free Press.
Upon resumption ,-of publication on August 9, 1968,
following the settlement of the strike, there was at first a
great deal of confusion in connection with the referral of
casuals and ' the setting up of a referral system. McGrath
prepared the application form for referral and attempted to
supervise the setting up of the system. During the initial
period, casual referrals were made , from the applications
and supplemented by the lists which 'had been received
from the two newspapers. Subsequently when the number
of applicants appeared to be sufficient , the original lists
submitted by the newspapers were completely discarded.
959
The current referral system for casual employees was
basically set up at the end of August or beginning of
September 1968 by Leroy Slawick, employed by Respon-
dent to administer the system. Under the system no one
was referred for casual shifts who had not filled out with,
Respondent an application for casual employment. These
applications contain such information as the date of the
application; the name, address, and telephone number of
the applicant; his availability, such as what days and/or
nights; previous mailroom experience; and the applicant's
signature. The applications are arranged in a looseleaf
book. Slawick made up a 'referral list based on the
information contained in this book. This list contains the
names of everyone who has filled out an application for
casual employment, the applicant's date of application, his
telephone number, and his availability. With the exception
of the Mt. Clemens mailers who were members of IMU,
hereinafter separately treated, the people who have filled
out applications for casual shifts and who are on the casual
referral list are not members of any mailers union.
Respondent admits that by contract and practice it
operates an exclusive referral system with respect to casual
employees. All applicants for casual shifts are instructed to
telephone Respondent's office for referrals. Generally,
Respondent accords preference to the applicant with the
earliest application date and the greatest availability. In
those instances where it is apparent to Slawick that the
needs of the Publishers for casuals will beat least as great
as the number of applicants, those who first can in are
referred immediately without regard to the date of their
application or their availability. In those instances where
the Publisher has made its request for casuals within the
contract time limitations and Respondent is unable to
furnish casuals within the contract time limitations
applicable to it, the contract permits the Publisher to seek
casual help from its own sources.
b. Regular employment
The parties agree that one method of obtaining regular
employment with the News and Free Press is by being
referred by Respondent from its list of casual employees.
This method is initiated by a request from the newspaper
for one or more individuals for regular employment.
Respondent thereupon recommends to the newspaper
those individuals who have the earliest dates on their
applications for casual referral and the greatest availabili-
ty. The individuals referred may not work elsewhere and
must be available to the newspaper at all times for all, day
or night shifts or a combination of both. Pursuant to the
contract, the newspaper determines their competency and
may reject Respondent's referrals . This entire hiring
procedure is 'subject to the grievance and arbitration
machinery of the contract.
Another source of applicant for regular employment is
the journeyman who makes his living at the trade and who
seeks employment with a Detroit newspaper. Applicants in
this category are not on Respondent's, casual referral list
and are not the subject of a- specific request by the News
and Free Press. The General Counsel contends that hires
from this category are also subject to union referral under
the terms of the current contract, while Respondent
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintains that the Publisher may hire from this category
directly without referral by Respondent, I am inclined too
agree with the position of the General Counsel that the
contract establishes 'an exclusive referral system with
respect to all unit employees, including this `category. In
any event, the General Counsel nowhere attacks-indeed
he appears to concede-the legality of such a system.
2. Allegations involving Pasella, Stevens, and
Plummer
Paragraph 19(a) of the -complaint, as amended, alleges
that since about August 19, 1968, Respondent has refused
to refer unit employees M. R. Pasella, Robert L. Stevens,
and Douglas Plummer for employment at the News or
Free Press mailroom because of lack of membership in or
adherence to Respondent and has, instead dispatched
applicants who are relatives of Respondent's members and
applicants who have, become members. Paragraph 20 of the
complaint, as amended, alleges that Respondent has
attempted to cause the-News to discharge the above-named
three employees because of lack of membership in
Respondent and because they were hired directly by the
News consistent with section 36 of the collective-bargain-
ing agreement in effect,
a. The facts
Pasella and Stevens had been employed as casual
employees by,the News,prior to the strike. Plummer had no
prior mailroom or newspaper employment experience prior
to 'the strike. None of these appeared on the lists which had
been submitted to Respondent by the News I and Free
Press, as previously discussed.
Within'a `few, days after the employees returned to work
following the ending of the strike, ITU International
Representative McGrath received a telephone call from
Pasella's uncle who complained that his nephew had not
been hired. Upon checking, McGrath learned that Pasella's
name was not on the list supplied to Respondent by, the
Publishers but that he had-worked at the News prior to the
strike. McGrathI informed the Publishers of the absence of
Pasella's = name from the list. Pursuant to McGrath's
instructions, Respondent referred Pasella for casual em-
ployment and at the same time continued to insist that he
fill out a referral, application at Respondent's' office.
Although ,Respondent continued to refer Pasella for casual
employment from .August 14, ;1968, until October 7, when,
the News placed him on the priority board, Pasella did not
fill out an application for, casual employment until
sometime during the last week in September 1968.
Stevens, had -worked as a casual employee for the News
prior to the-1967, strike. His name also did not,appear on
the list furnished to Respondent by the News. He filled out
an application for casual employment on -September 17,
1968,, and was referred by Respondent for, casual employ-
ment from, that -,date until October, 7, 1968,,, when he was
placed on the priority board by the News. - . I
Plummer is, a neighbor of one of the, foremen of the
News. The first time that he was hired for a casual shift
was on September 10, 1968, when he was hired directly by
the News. He -had no prior experience as a mailer. He did
not fill out an application for referral for casual employ-
ment until October 4, 1968. From that time until October
7, 1968, when he was hired by the News for regular
employment, he never requested and therefore did not
receive any referrals for casual employment from Respon-
dent. -
During the first or second week of September 1968,
Mailroom Superintendent Vahlbusch'of the News indicat-
ed to McGrath that a number of regular employees had
not returned after, the strike, that the retirement of a
number of employees -was anticipated- in the near future
and that he would be needing 'about 8 or 10 new regular
employees in the future. McGrath stated that he would be
meeting with the"Publishers later in the week and would try
to work something out. In the presence of Respondent's
president and--the chapel chairman, McGrath told Vahl-
busch that for the `time being he would instruct` Respon-
dent immediately to furnish the names of 8' or 10
employees to cover five shifts exclusively for the News; as a
temporary solution. He made it clear that'they would be
referred exclusively to the News and not to the Free ' Press.
In response to Vahlbusch's inquiry about their priority,
McGrath stated that -these individuals should not' be given
priority until the I Publisher and Respondent reached some
agreement on procedure so that :Respondent would not be
open to any accusation of favoring ITV. Vahlbusch agreed
to'this , suggested method and plan.
Later that week,, McGrath ,met with the Publishers;
repeated his, above-stated conversation with Vahlbusch;
and stated that the casuals who were immediately referred
pursuant to the , arrangement _ with Va.hlbusch ' would
acquire priority 'as soon as it was determined whether they
had the oldest.applications and the,News was satisfied with
these 'employees. McGrath emphasized that,; Respondent
intended to give first preference in referrals to those
individuals with.-the - oldest application dates, that'such
referrals constituted the,,Respondent's recommendations,
that the newspaper does the hiring and that if the referred
individuals are hired and are satisfactory the newspaper
puts them, on the priority board. The Publishers agreed to
this axrangement.T
Pursuant to McGrath's -earlier promise to. Vahlbusch,
Respondent did immediately refer eight individuals to the
News to cover, 5-day-situations . Those referredar'e;among
the employees listed in the-'General Counsel's reply to
Respondent's, motion for a bill of particulars (G.C. Exh.
No. 1(v)). Thereafter, on ,October 5, 1968 , Pasella,
Plummer, and Stevens asked Vahlbusch to put them on the
priority board for permanent employment at the News. He
told them to go, to, the Respondent and,to state,that they
wanted to be referred for priority. When they returned
without a referral, Vahlbusch nevertheless put them on the,
News priority board on October 7, 1968 , Although the
request of Pasella, Plummer, and Stevens for priority
admittedly were madeafter-the eight individuals,previously
mentioned were referred by, Respondent^pursuant,to the
arrangement between McGrath and Vahlbusch and after
7 The findings in this and the preceduig paragraph are based on the
credited testimony of McGrath.
DETROIT MAILERS UNION NO. 40
the Publishers and McGrath had agreed that the eight
would acquire priority as soon as it was ascertained
whether they had the oldest applications, these eight
individuals were not put on the priority board until
October 14, 1968.
When McGrath learned that Pasella, Plummer, and
Stevens, but not the eight individuals referred by Respon-
dent, had been put on the priority board, he-called the
Publisher and was informed that there -must have been
some sort of misunderstanding. Respondent accordingly
filed a grievance pursuant to the terms of the contract and
the matter went to, arbitration on December 10, 1968, and
January 1©, 1969. The arbitrator held, in a decision issued
on April 22, 1969, that "the proper disposition of this
grievance, in my opinion, is to realign the respective
seniority dates of all employees hired for priority employ-
ment on and since September 23, 1968, in the order of the
dates which appear on their applications for referral for
five day or five night work."
b. Concluding findings
The General Counsel nowhere attacks, as indeed he
validly may not, the legality of Respondent's conduct in
following a practice of giving preference in referrals from
its casual list on the basis of the oldest application dates
and the greatest availability. The General Counsel's
position is based- on a claim that the referral system was
discriminatorily administered. I am convinced and find
that the General Counsel has not sustained his burden of
proving by a preponderance of the credible evidence that
Respondent discriminated against Pasella, Plummer, and
Stevens with respect to referrals or attempted to cause the
News to discharge them for unlawful reasons. In arriving
at this conclusion, I have been primarily motivated by the
following factors:
Each of the 15 individuals, who are alleged in the
complaint to have been discriminatorily referred in
preference to Pasella, Plummer, and Stevens, had earlier
application dates than the later three. There is no showing
of any unlawful preference to them on the dates specified
in the complaint. Nor is there any showing of a single
instance where Pasella, Plummer, or Stevens requested a
referral, was refused, and instead a referral was given to
someone with a later application date. Moreover, except
for a few Mt. Clemens mailers who are members of IMU,
no one on Respondent's casual referral list is a member of
Respondent or ITU. And while many of the 15 individuals
listed in General Counsel's Exhibit 1(v) were relatives of
ITU members, some of these same individuals admittedly
were also related to IMU members and others were related
to both ITU and IMU- members. ,Indeed, when the IMU
was the exclusive bargaining representative before the
strike and all the regular mailers were members of IMU,
many of these same individuals were relatives of IMU
members or of dual members. The News never requested
Respondent to dispatch Pasella, Plummer, and Stevens for
regular employment nor did it make any specific request of
Respondent for employees for the priority board in
general, an opportunity which should have been given to
Respondent before Superintendent Vahlbusch placed these
three on the priority board. There is no showing that
961
Respondent deviated from its basic system of making
referrals from its casual list based on the earliest applica-
tion date and greatest availability. At best, there was a
misunderstanding with respect to the priority board status
of the eight individuals whom Respondent had referred,
pursuant to the discussion between McGrath and Vahl-
busch, prior to the requests , of Pasella, Plummer, and
Stevens that Vahlbusch give them priority. Respondent in
good faith invoked the contract grievance machinery to
have this misunderstanding resolved . It never took the
position that these three employees should be -discharged;
it merely contended that they were- not entitled to that
particular position on the priority board but had no
objection to their being slotted properly.
I will accordingly recommend that the allegations
contained in paragraphs 19(a) and 20 of the complaint, as
amended, be dismissed.
3. Allegations involving Mt. Clemens IMU
members
Paragraph 19(b) of the complaint, as amended, alleges
that since about November 10, 1969, Respondent has
refused to refer certain previously referred individuals,
Larry H. Lewis, Fred Davidson, Arthur Jones, and Donald
Harper, for temporary or permanent employment at the
News' mailroom because they are members of Local 45 of
the IMU and Local 45 acted to merge with Local4 of the
IMU rather than with Respondent.
a. The facts
In 1969 the IMU had a Local 45 at the Macomb
Publishing Company of Mt. Clemens, Michigan. IMU
members, including the - alleged discriminatees, were
employed there on a priority or substitute basis. Prior to
August 1969, Local 45 IMU members, including some of
the alleged discriminatees , received casual shifts at the
News directly from the News when Respondent was
unable to meet 'the needs of the newspaper . In August
1969, certain of these alleged discriminatees, who had filed
applications for casual employment at Respondent's office,
applied for referrals and received shifts through Respon-
dent.
During the period between August and November 1969,
alleged discriminatee Larry Lewis was asked by two of
Respondent's chapel chairmen to find out if he and the
other members of Local 45, IMU, would like to join or
merge with Respondent. During this same period, Respon-
dent's chapel chairmen advised Lewis that if he and the
other mailers at Macomb Publishing Company became
members of Respondent, they would receive a', 5-day
markup at the News if they wanted it and that they would
not have to call weekly to get their shifts but would be
informed beforehand. About the middle of August' 1969,
Joe Davidson, a mailer at Macomb Publishing "Company,
was asked by Respondent President Irving :Cohen what
Local 45, IMU, was doing about merging , with Respon-
dent. Davidson replied that no membership meeting had
yet been called. In October 1969, Local 45, IMU, decided
to merge with Local 4, IMU, of Detroit, rather than with
Respondent.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About November 17, 1969, Lewis called Respondent for
referrals and was advised by Respondent President Cohen
that he (Cohen) had heard that Local 45 was going to
merge with Local 4 and as a result he would not give the
Macomb Publishing mailers any more referrals because he
(Cohen) didn't hire' IMU people. Cohen told Lewis to pass
this information on to the other men andasked how Lewis
felt about the merger. Lewis replied that all he wanted was
work. This telephone call was being made by Lewis from
the Macomb Publishing Company. Lewis passed the
receiver to Joe Davidson who then- asked Cohen what he
meant that he wasn't going to give any more referrals to
Local 45 men. Cohen replied that it was because they were
now part of Local 4, IMU; whereupon Davidson said that
they were only in the process of merging with Local 4.
Cohen's, response -was that that made` no difference.
Lewis filed the instant charges with the Board on
November 24, 1969. Thereafter, he called Respondent's
office regularly but did- not receive a single' referral until
sometime in January 1970, after the issuance of the
amended complaint on December 1, 1969, based on his
unfair labor practice charges.
Despite continued calls to Respondent's office after
November 17, 1969, Joe Davidson also did not receive any
referrals until late - December. When Fred Davidson,
another Macomb Publishing mailer, called Respondent's
office for a shift following the filing of the instant charges,
Cohen told him that he had filed charges with the Labor
Board and that for that reason there was nothing he could
do about giving him work.8
b. Concluding findings
Upon consideration ^ of the foregoing in the light of the
entire record as a whole, I am convinced and find that-
during the period between November 17, 1969, and
sometime in January 1970, Respondent refused to refer for
casual shifts Larry Lewis, Joe Davidson, and Fred
Davidson because of resentment over the fact that Local,
45, IMU, decided to and' did merge with Local-4, IMU,
instead of with Respondent. By such conduct, I find that
Respondent violated Section 8(bxl)(A) and (2) of the Act.
D. Allegations Relating to Excessive Referral Fees
1. Collection of referral fee without use of .
referral system
Paragraph 21 of `the complaint alleges-that since about
August S, 1968, Respondent has charged and collected, a
daily referral fee-as a condition of employment from newly
hired- mailroom employees, who did not'gain employment
through the referral' system of, or through any efforts
extended by, Respondent.
Respondent ' admitted at the instant hearing and again
admits in its brief , "that it in fact collected referral fees
under the circumstances alleged above until the latter part
of December 1968, or the first part' of January 1969, and
upon advice of counsel "this practice was- discontinued."
Respondent's 'counsel admitted 'at the instant hearing that
mailer Douglas Plummer is a case in point and is
representative of the employees who fall in this category.,
Respondent further concedes that the collection of these
fees was violative of the Act. I therefore find that by such
conduct Respondent violated Section 8(b)(1)(A), and (2) of
the Act.
Respondent further admits that "the total amount of
money received by Respondent as referral fees from
employees other than those actually referred by Respon-
dent, is $696, as reflected in (Respondent's)-Audit," which
is General Counsel's Exhibit 22. At the instant hearing,,all
parties agreed that a determination of which ; specific
employees in addition to Plummer were charged referral
fees under these circumstances and the amounts collected
from each, including Plummer, will be deferred to the
compliance stage of this proceeding.
2. Collection, of referral fees from those referred
by Respondent
Paragraph 22 of the complaint alleges .that pursuant to
the current collective-bargaining agreement and estab-
lished practice, Respondent has since about August' 5,
1968, exacted as a condition of employment from mail-
room employees of the News and Free Press who made use
of Respondent's referral system, daily referral fees for each
day worked, which fees are excessive,in that the amount
charged is not reasonably related to the funds expended for
the maintenance of the referral service provided by
Respondent.
a. The facts
Only non ITU members are on Respondent's casual
referral list and are eligible to use and have used
Respondent's casual referral system. The referrals are for
casual employment . Respondent charges each employee
whom it refers from its casual list a fee of $1.50 per casual
shift regardless of how many or how few telephone, calls
are made by the referred employee. There are approxi
mately 350 persons on Respondent's active casual referral
-list.'
Respondent employs Leroy Slawick as administrator of'
the referral system for casual employees on a 5-6y basis,
Monday through, Wednesday; inclusive, It is on these 3
days that the greatest amount of actual referrals and work
connected with the system takes place . Respondent's
president operates the system the balanceof^the week i:e.,
Friday'and Saturday, and' sometimes Sunday. Slawick has
no other duties with Respondent ' other than the casual
referral system. He begins work'at Respondent's office at 8
or 8:30 a.m. and works about 10 hours a'day.`For the 3'
days which Slawick spends in the office, he spends all but I'
hour in a 3-day period on duties connected with the'
referral system: On several occasions, Sl'awick's presence
was required at arbitration hearings relating to the Union's'
casual- referral system, and-on such occasions not only was
Slawick paid but Respondent's vice president was hired'
and' paid to perform Slawick's ' duties. "President Cohen
testified that although not' many actual referrals are made'
8 The findings in this , section are based on the credited testimony of
Larry Lewis , Fred Davidson, and Joe Davidson.
DETROIT MAILERS UNION NO. 40 963
on Thursday, Friday, and Saturday when he covers the
referral system, the telephone calls which he answers from
casuals requesting referrals are numerous.
The General, Counsel contends, and the Respondent
does not dispute, that the referral fee must be related to the
cost of providing the referral, as, the Board and the court
have held in J. J. Hagerty, Inc., 153-NLRB 1377, enfd. 385
F.2d 874 (CA. 2). For this purpose, an audit of Respon-
dent's finances-for the period from August 1, 1968, to July
31, 1969, appears in evidence as General Counsel's Exhibit
22. However, the General Counsel has- nowhere indicated
which expenses in his judgment might be fairly allocated to
the costs of operating the referralsystem so as to determine
to what extent, if any, the fee of•$1.50 for each casual shift
is- excessive . He merely contends that when an individual is
referred to more than one shift in one week as a result of
one telephone call to Respondent's office, it is excessive to
charge $1.50 for each shift referred during that -one call
because the expenses of answering the telephone and
making the referrals are identical whether Respondent
gives one shift- or more than one shift to, the individual
requesting a referral. I find no merit in this contention. The
cost of operating the referral service cannot be based on
the time actually spent in making a referral. The entire
system must be maintained and operated in the same
manner and with the same expenditures regardless of how
many referrals, or even if no referrals, are made in any one
telephone call. It is essential for the Publishers to know
that the office is covered so that they may call- for
additional help if and when needed, and it is necessary that
the office be manned to take the numerous and continuous
calls from those desiring referrals. Respondent incurs the
same expenses in operating the referral system on a day in
which `no referral is made, 'whether or not telephone
requests are received, as on a day' in which n many referrals
are made.9
On'the other hand, the Respondent in its brief has
pointed out what expenses listed in the audit may fairly be
allocated to the costs of operating the referral system to
show that the $1.50 fee is not excessive. This is done first
on a restricted approach and then on a more liberal one.
The foll owing figures are used under the restricted
approach: The salary of Slawick ($6,184.88) plus one-
fourth of the combined salaries of those serving as
president during that year ($3,780)10 totaled $9,964.. In
addition Respondent correctly points out that "no one
would quarrel with allocating some unidentified portion of
such items as office rent, telephone and office supplies to
the operation of the hiring hall." As the total received' by
Respondent inn referral fees that year was $6,831, Respon-
dent therefore concludes that "the cost of operating the
casual referral system far exceeds the amount received in
referral fees."
It may also be noted that there were approximately 350
persons on Respondent's active referral list. If the cost of
operating the referral system, at least $10,000, were divided
9 The General Counsel also points out that no referral fee is charged for
inter-chapel referrals and that whatever administrative tasks and expenses
are incurred by the referral system in making inter-chapel referrals are
home by those who pay the referral fees. The inter-chapel referrals for
"outside" shifts are a function of one's priority status and regular
employment with the newspaper. These referrals are made by the chapel
by the 350 persons eligible to use it, it would come to
$28.57 per year per applicant . Dividing the total received in
referral fees ($6;831) by the number of eligible applicants
(350) results in a payment of-$19.51 per year by the average
applicant. On this basis also, the cost is in excess of the
charges . Another unit of measurement could be based on
the number of referrals per shift . As each employee was
charged $1.50 for each shift to which he was referred, there
were 4,554 such referrals per shift that year ($6,831 divided
by $1.50). When the minimum $ 10,000 expenses applicable
to the referral system is divided by the number of referrals
per shift, the cost to Respondent per referral for a shift
comes to $2.19, approximately 50 percent more than was
charged and collected.
Under the more liberal approach, Respondent adopts the
basis of the allocations made in the Hagerty case, supra,
pointing out that the allocations made in Hagerty would be
far more favorable to Respondent, than those made above
in the more restricted approach . Thus Respondent states
that by apportioning Respondent's' total yearly expenses
listed in General Counsel's Exhibit 22 between
"institutional costs" and the cost of operating the casual
referral system in the same manner as was done in Hagerty,
the expenses which would then be allocable to the casual
referral system would total $43;631; that by dividing this
amount by the 4,554 referrals per shift made during that
year, the cost to Respondent per referral for a shift comes
to $9.58; and that by dividing that same amount by the 350
persons eligible for referrals, the cost is $124.65 per year
per applicant compared to the $19.51 -per year payment
received--by the average applicant (dividing 'the amount
received in" referral fees by the number of eligible
applicants).
b. Concluding findings
I find merit in Respondent's contentions. The foregoing
figures demonstrate that whether the more liberal ap-
proach in Hagerty or a more restricted approach serves as
the basis for allocating expenses,'to the Operation of the
casual referral system, the cost to Respondent of providing
the referrals far exceeds the amount received for the
services rendered. I find that the referral -fee of $1.50 for
each shift is not excessive and will recommend dismissal of
the complaint in this respect.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with- the operations of the
employers named in section,. I, above , have a close,
intimate, and substantial relations to trade, traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce-and
the free flow of commerce.
chairman in the plant and do not involve the casual referral system.
Moreover, those entitled to ,referrals for 'outside" shifts are regular
employees who pay initiation fees and dues to Respondent.
10 The combined total of the salaries of ' the two individuals serving as
president that year was $15 , 121.54.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Assessments for the,ITU pension and mortuary fund
and the 50, cents per month per capita tax for the Union
Printers' Home are not "periodic" dues within the meaning
of the union-security, proviso of Section 8(aX3) of the Act
and therefore may not be collected from unit employees as
a condition of employment under the terms of the union-
security provision of the current agreement.
2., By attempting to .cause the News and Free Press to
discharge unit employees because of their refusal to pay
the above-stated assessments and levy as part of their
periodic dues , Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2)
of the Act.
3. By refusing to make inter-chapel referrals to Victor
Landau and to other unit employees because of their
refusal to pay the above-stated , assessments and levy as
part of their periodic dues,, Respondent has engaged in
unfair labor practices , within the meaning of Section
8(bxl)(A)_and (2) of the Act.
4. By refusing to refer for casual shifts Larry Lewis,,Joe
Davidson, and Fred_ Davidson during the period from
November 17, 1969, to sometime in January, 1970, because
of resentment over the fact that Local45,'IMU, decided to
and did, merge with Local 4,' IMU, instead of with
Respondent, the Respondent engaged in unfair labor
practices within the meaning of Section 8(bXl)(A) and (2)
of the Act.
5. By collecting daily referral , fees as a condition of
employment from , mailroom employees who did not -gain
employment through Respondent 's referral system or
through any efforts of Respondent, the Respondent, has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1XA) and (2) of the Act.
6. The fee of $1.50 for each shift to which Respondent
referred an applicant for casual employment is not
excessive. -
7. ' The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. Respondent has not engaged in unfair labor prac-
tices violative of the , Act by its conduct with respect to M.
R. Pasella, Robert . Stevens, and Douglas Plummer and
by collecting a fee of $1.50 for each shift to which it
referred an applicant for casual employment.
Tun REMEDY
Having found that Respondent Union has engaged in
certain unfair labor practices , I shall ' recommend that it
cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act.
Having found that Respondent violated the Act' by
refusing to make - inter-chapel referrals to Victor Landau
and to other unit employees who refused , to pay the
aforementioned assessment and per capita tax ,as part of
their periodic dues, I will recommend that Respondent
make them whole for-loss of wages incurred as a result of
11 Interest shall be computed in the manner set forth in Seafarers
International Union of Nortk America, Great Lakes Div,sion, AFL-CIO, 138
NLRB 1142, fn. 3.
Respondent's unlawful conduct, with 6-percent interest to
be computed in the usual manner.. Having also found that
Respondent violated the Act by collecting referral fees
from unit employees who obtained employment without
using Respondent's referral system, I.will recommend that
Respondent, refund to said employees the fees collected
from them plus 6-percent interest.11, All parties have agreed
that, a determination of which specific employees were
discriminated against in the, above manner with respect to
inter-chapel referrals and the extent of such discrimination
in each case, , as well as a, determination of which specific
employees who were not referred for employment by
Respondent were nevertheless charged referral fees and the
amounts collected , from each such employee, will be
deferred to the compliance stage of this proceeding.
I have further found that Respondent ;violated the Act by
refusing , to refer for casual shifts Larry,, Lewis, Joe
Davidson, and Fred Davidson during the period, from
November 17, 1969, to sometime in January,1970. I' shall
recommend that Respondent make them whole for any
loss of wages incurred as a result of Respondent 's unlawful
conduct during that period, with 6-percent interest to be
computed in the usual manner.
I have also found that the assessments for the ITU
pension and mortuary fund and the 50 cents per month per
capita tax,for the Union Printers' Home are not ,"periodic"
dues within the meaning of the union-security proviso and
therefore may, not be collected as a condition of employ-
ment under the terms of union-security provision of the
.current agreement. The General Counsel requests that all
Wvt employees be reimbursed for the payment of the
above assessment and tax . However,' the union-security
provision of the current agreement is not unlawful, and
does not require employees to become or remain, members
of Respondent but merely to pay the equivalent of the
initiation fee and periodic dues uniformly required as a
condition of obtaining or retaining membership. Therefore,
unit,employees:who chose to remain or become members
of Respondent did so voluntarily. Under these, circum-
stances; their payments of the above assessments and tax
were made because of their obligation of membership and
not because of the requirement of the' collective-bargaining
agreement . I will therefore limit the reimbursement
provision to' nonmember unit employees .12 Interest on the
moneys due shall be computed in the manner, set forth in
the Seafarers case, supra
Upon the foregoing findings and conclusions and' the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Respondent, Detroit Mailers Union No. 40, Internation-
al Typographical Union, AFL-CIO, its officers, agents,
and representatives, shall:
1. Cease and desist from:
.(a) Exacting from unit employees as a -condition of
employment pursuant to the terms of the union-security
provision' of the collective-bargaining agreement assess-
12 Cf. Crown Cork & Seal Company, Inc., 182 NLRB No. 96 ; and Leisure
Coal Company, 182 NLRB No. 149, In. 1.
DETROIT MAILERS UNION NO. 40 965
ments for the ITU pension and mortuary fund and the 50
cents per month per capita tax for the Union Printers'
Home as part of the periodic dues uniformly required as a
condition of acquiring or retaining membership.
(b) Attempting, to cause the News, or the Free Press, or
any other employer, to discharge their unit employees
because of their refusal to pay the above-stated assess-
ments and levy as part of their periodic dues or to
discriminate against them in any other manner in violation
of Section 8(a)(3) of the Act, except that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act.
(c) Refusing to make inter-chapel referrals to Victor
Landau or to any other unit employees because of their
refusal to pay the above-stated assessments and levy as
part of their periodic dues.
(d) Refusing to refer for employment Harry Lewis, Joe
Davidson, Fred Davidson, or any other unit employee, or
applicant, because of resentment over their failure or the
failure of their local to join Respondent.
(e) Collecting or charging daily referral fees as a
condition of employment from unit employees who did not
gain employment through Respondent's referral system or
any efforts of Respondent.
(f) In any other manner restraining or coercing employ-
ees or applicants for employment in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify the News and the Free_ Press that it has no
objections to the continued employment of the mailers
whose discharge it had requested in writing in 1968 for
failure to pay dues.
(b) Reimburse all unit employees who are not members
of Respondent for the above-stated,assessments and levy
paid by them, if any, as part of the membership dues
required as a condition of employment under the terms of
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations, and Recommended Order herein shall, as
provided in Sec. 102.48 ofthe,Rules and Regulations, be adopted by the
Board and become its findings ,' conclusions, and order, and all objections
thereto shall be ' deemed waived for all purposes. In the event that the
Board's Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the National
the union-security provision of the collective-bargaining
agreement, with interest thereon at 6-percent per annum.
(c)- Make whole -Harry Lewis, Joe, 'Davidson, .' Fred
Davidson, Victor Landau, and, all employees who were
refused inter-chapel referrals for the same reason as
Landau, for any loss of wages they may have suffered as a
result of Respondent's unlawful refusal to refer them for
employment, in the manner set forth in the Remedy
section of this Decision.
(d) Reimburse all employees for referral fees exacted
from them when no referrals were made, with interest
thereon at 6 percent per annum.
(e) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all books
and records necessary to analyze and compute the
amounts due employees under the terms' of this Decision
and Order.
(f) 'Post in conspicuous places in Respondent's business
offices, meeting halls, and all places where notices to
members are customarily posted, including bulletin boards
of the News and Free Press if Respondent has. access to
them, copies of the attached notice marked "Appendix." 13
Copies of said notice to be furnished by the Regional
Director for Region 7, shall, after being duly signed by
Respondent's authorized representative, be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(g) Sign and mail to the Regional Director for Region 7,
sufficient copies of said notice, to be furnished by him for
posting by the News and the'Free Press, if theybe willing,
at places where they customarily post notices to 'their
employees.
(h) Notify the Regional Director-for Region 7, in writing,
within 20 days from the date, of the receipt of this Decision,
what steps Respondent has taken to comply herewith-14
Labor Relations Board" shall be changed to read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order'of , the
National Labor Relations Board."
14 In the event that this Recommended Order is adopted by_the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith:'