Hershey Foods Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1973

207 N.L.R.B. 897 (N.L.R.B. 1973)

HERSHEY FOODS CORPORATION 897
Hershey Foods Corporation and Lloyd Brewer
Teamsters, Chauffeurs, Warehousemen & Helpers
Union No. 386, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America and Lloyd Brewer. Cases 20-CA-7976
and 20-CB-2693
December 14, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 16, 1973, Administrative Law Judge
Louis S. Penfield issued the attached Decision in this
proceeding. Thereafter, the Respondents filed excep-
tions and a joint brief; the Charging Party filed
cross-exceptions and a brief; and the General
Counsel filed a brief.
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 record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
Contrary to our dissenting colleague, we agree with
the Administrative Law Judge that the Union
violated Section 8(b)(1)(A) and (2) when it sought,
and brought about, the discharge of Brewer, and that
the Employer violated Section 8(a)(1) and (3) when,
acting with full knowledge of the circumstances
surrounding the Union's controversy with Brewer, it
discharged Brewer. In so concluding, we note, in
agreement with the Administrative Law Judge, the
absence of any precedent which would support
holding that full membership may be required as a
condition of employment. Nor does the legislative
history require such a result. On the other hand, we
find the Administrative Law Judge's Decision to be
consistent with the Board's Union Starch 1 line of
cases which stand for the general proposition that
while contracts requiring membership as a condition
of employment are lawful within the meaning of the
proviso to Section 8(a)(3), a union cannot lawfully
compel, or an ' employer lawfully acquiesce in, the
discharge of an employee except for his failure to pay
required dues and initiation fees . Moreover, as found
by the Administrative Law Judge, this Decision is
supported by the General Motors2 case in which the
1 Union Starch and Refining Co., 87 NLRB 779, enfd . 186 F.2d 1008
(C.A. 7), cert. denied 342 U.S. 315.
2 N.LRB v. General Motors Corp, 373 U.S. 734 (1963).
Supreme Court found that the term "membership" as
used in Section 8(a)(3) represents a financial obliga-
tion limited to the payment of fees and dues. Finally,
we note that in the recent Boeing3 case the Supreme
Court made it unequivocally clear that the member-
ship relationship is a voluntary one which a member
can terminate when, and if, he chooses. In urging the
reversal of the Administrative Law Judge's Decision,
we believe our dissenting colleague has attempted to
invoke a mechanical, simplistic, and too literal
interpretation of the meaning of "membership" as it
is used in Section 8(a)(3) and its provisos, and, in the
process, he has obliterated the now recognized
distinction between full membership and financial
core members.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondents, Hershey' Foods
Corporation, Oakdale, California, its officers, agents,
successors, and assigns, and Teamsters, Chauffeurs,
Warehousemen & Helpers Union No. 386, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, its officers, agents,
and representatives, shall take the action set forth in
the said recommended Order.
CHAIRMAN MILLER, dissenting:
The first proviso to Section 8(a)(3) of the Act
validates, except in "right-to-work" States, collective
agreements which "require as a condition of employ-
ment membership ... [in the contracting union] on
or after the thirtieth day following the beginning of
such employment or the effective date of such
agreement, whichever is the later .... "
A further proviso to this section states that:
... no employer shall justify any discrimina-
tion against an employee for nonmembership in a
labor organization (a) if he has reasonable
grounds for believing that such membership was
not available to the employee on the same terms
and conditions generally applicable to other
members, or (b) if he has reasonable grounds for
believing that membership was denied or termi-
nated for reasons other than the failure of the
employee to tender the periodic dues and the
initiation fees uniformly required as a condition
of acquiring or retaining membership ... .
3 Booster Lodge 405, LAM (Boeing Co.), 185 NLRB 380, enfd. 459 F.2d
1143 (C.A.D.C., 1972), affd. 409 U.S. 1074 (1972).
207 NLRB No. 141
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the instant case we have before us a union-
security clause which is clearly valid under the first
proviso to Section 8(a)(3). The Charging Party,
having once resigned from the Union at a time when
no contract was in effect during a strike, subsequent-
ly failed and refused to become a member of the
Union as required by the new contract which was
executed at the conclusion of the strike. The Union
thereupon demanded his discharge; the Employer
refused to discharge him; the Union grieved, alleging
a failure by the Employer to comply with its
obligations under the union-security clause; an
arbitrator found that the Employer had violated the
agreement and that the terms thereof required the
requested discharge to be effectuated; whereupon the
Employer discharged the nonmember.
Wherein is there a violation of the Act? The clause
is valid, and the Employer, after being directed by an
arbitrator so to do, has invoked it against the
nonmember. It seems axiomatic that if the clause is
valid, it may validly be enforced, as it was here,
unless the further proviso has application.
The further proviso prohibits the enforcement,
through discharge, of the clause in two circum-
stances . Neither of those circumstances is present
here.
First, such a clause may not be enforced if
membership was not available to the employee upon
the same terms as are generally applicable to others.
No claim is made here that the availability of
membership did not comply with this requirement.
Second, the clause may not be enforced if the
employer has reasonable grounds to believe that
"membership was terminated or denied for reasons
other than the failure of the employee to tender .. .
periodic dues and . . . initiation fees . ... No
claim is made by the Charging Party that he was
denied membership for any such prohibited reason.
Indeed, he plainly asserts that he did not seek or
desire to be a member.
Since, therefore, he has not brought himself within
either of the two qualifications of the further proviso,
I see no legal bar to the enforcement of the valid
union-security clause.
The Administrative Law Judge reasoned that if the
employee here could be required to become a
member "he would be subjecting himself to the
union disciplinary measures permitted by the hold-
ings in Allis-Chalmers and Boeing." That is true, but
those holdings would not permit any disciplinary
measures to be invoked against the employee here for
having crossed the picket line after his resignation
and during a time when no union-security clause was
in effect. Hence, his resumption of union member-
ship after the strike was over exposes him to no
legitimate disciplinary action by the Union.
As pointed out by the Union in its brief , Section
8(a)(3) outlaws neither union-shop clauses nor
maintenance-of-membership clauses . I see no reason
for us to read any such prohibitions into the statute.
Should the Union here attempt to discipline
Brewer , he is protected under the Boeing decision
and may enforce his rights by invoking Section
8(b)(1)(A) of the Act. Should the Union expel him
and seek his discharge under the union -security
clause , he is protected against such discharge by the
second portion of what I have called the "further
proviso," because his membership would then have
been terminated for reasons other than his failure to
tender dues and initiation fees . Union Starch and
Refining Co. v. N.L.R. B., 186 F .2d 1008 (C.A. 7,
1951), cert. denied 342 U.S. 315.
But none of those potential violations of the Act
are present here . I would , therefore , dismiss the
complaint.
DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Administrative Law Judge: These
cases were heard before me in San Francisco, California,
on December 10, 1972, and February 21, 1973.1 The
complaint in Case 20-CB-2693 is based on a charge filed
on July 6 with the complaint issuing on October 24. The
hearing in such case was held on December 7 and the
record closed. Thereafter the complaint in Case
20-CA-7976, based on a charge filed on December 18,
issued on January 24, 1973. On January 26, 1973, General
Counsel moved to reopen the record in Case 20-CB-2693
and consolidate that proceeding with Case 20-CA-7976.
On January 31, 1973, the undersigned issued an order
granting the motion to consolidate and reopen the record.
The hearing on the reopened record and consolidated
proceeding was held on February 21, 1973. The primary
issues before us now are whether or not Teamsters,
Chauffeurs, Warehousemen & Helpers Union No. 386,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called
Respondent Union, unlawfully attempted to cause, and
later actually caused, the discharge of Lloyd Brewer in
circumstances violative of Section 8(b)(1)(A) and 8(b)(2) of
the Act, and whether or not Hershey Foods Corporation,
herein called Respondent Employer, discharged Lloyd
Brewer on December 14, 1972, at the request of Respon-
dent Union in circumstances violative of Section 8(a)(1)
and (3) of the Act.
Upon the entire record including my observation of the
demeanor of the witnesses, and after due consideration of
briefs filed by each of the parties, I make the following:
I All dates are in 1972 unless otherwise noted.
HERSHEY FOODS CORPORATION 899
FINDINGS OF FACT
1. JURISDICTION
Respondent Employer is a Delaware corporation with a
place of business located at Oakdale, California, where it is
engaged in the processing and wholesale distribution of
chocolate and chocolate products. During the past year in
the course and conduct of such business operations
Respondent Employer sold and shipped products valued in
excess of $50,000 directly to customers located outside the
State of California. I find Respondent Employer to be
engaged in a business affecting commerce within the
meaning of the Act, and assertion of jurisdiction to be
appropriate.
II. THE ALLEGED UNFAIR LABOR PRACTICES
This proceeding is concerned solely with the lawful
nature of Respondent Union's successful efforts to cause
the termination of Lloyd Brewer's employment with
Respondent Employer because of Brewer's nonmember-
ship in Respondent Union. The Charging Party and the
General Counsel claim Brewer to have been terminated
discriminatorily "for reasons other than the failure of the
employee to tender the periodic dues and initiation fees."
Respondent Union contends its contract with Respondent
Employer required that Brewer be a member and that it
could lawfully seek his discharge for nonmembership.
There is no dispute as to the circumstances under which
this controversy arose.
Respondent Umon had been the statutory representative
of certain of Respondent Employer's employees since 1966.
During that time there had been a series of collective-
bargaining contracts executed by the parties. We are
concerned here only with the contract effective from April
1, 1970, to April 1, 1972, and with a subsequently executed
contract effective from May 27, 1972, until April 1, 1974.
In each of the collective-bargaining contracts since 1968
there have been identical union-security provisions. Insofar
as pertinent these read as follows:
Section 2.03:
(a) All employees covered by this agreement who are
members of the union on the date this agreement is
executed or the effective date of this agreement,
whichever is later, shall as a condition of continued
employment maintain their membership- in good
standing in the union for the duration of this agree-
ment.
(b) All new employees covered by this agreement
employed on and after the date this agreement is
executed shall be, and remain members in good
standing of the union as a condition of employment on
and after the thirtieth (30th) day following the
beginning of employment or the date this agreement is
executed, whichever is later.
(c) An employee who shall tender the initiation fee
(if not already a member) and the periodic dues
uniformly required as a condition of acquiring or
retaining membership, shall be deemed to meet this
condition.
(d) All present employees who are not members in
good standing of the union as of April 1, 1970 by
reason of religious belief, certified by the local church
officer, shall be exempt from the requirement of
becoming and remaining a member in good standing'of
the union.- Such employees shall as a condition of
continued employment pay to the union each month a
service charge as a contribution toward„the administra-
tion Of this agreement, in an amount equal to the
regular monthly membership dues of the "union. Such
contribution shall be checked off upon proper written
authority executed by the employee as provided in
Section 2.04.
Negotiations for a new contract commenced in February
1972. No agreement had been reached by April 1;'and the
existing agreement was kept in effect on a day-to-day basis
thereafter. However, when the parties failed to reach an
agreement by April 9, a strike was called which com-
menced on April 10. Picket lines were established by
Respondent Union at that time, and were maintained
throughout the strike which was settled on May 26 with the
employees returning to work shortly thereafter. With the
exception of Lloyd Brewer, an employee within the unit, all
the other employees remained off work during the period
of the strike. Brewer, however, crossed the picket line and
worked during the entire period of the strike. Brewer was a
member off Respondent Union immediately prior to the
strike and had been such since sometime in 1971. Pursuant
to the checkoff provisions his dues had been checked off
by Respondent Employer, and were accepted and received
by the Union to and including April 1972.
On April 10, 1972, Brewer wrote a letter to Respondent
Union which reads in full as follows:
I, Lloyd Brewer, hereby resign as a member of
Teamsters Local 386, effective immediately.-
I' will, however, continue to pay tender an amount
equal to the established dues as may be required by a
labor agreement between Hershey Foods Corporation
and Teamsters Local 386.
Brewer's letter of resignation was received by Respondent
Union at 10 : 15 a.m., April 11, 1972. Respondent Umon
makes no claim that there, are any particular procedures or
rules which would affect Brewer's-ability to validly, resign
from membership.
As noted above Brewer's, April dues were paid after
checkoff and accepted by the Union. The Union, however,
treated Brewer as a nonmember beginning with May of
1972, and on May 30 Brewer sent a cashier's check to
Respondent Union in the amount of $21 which was to
cover dues for May and June. On June 2 Respondent
Union wrote Brewer a letter advising. him that it had
received the,check, and it also had noted in Brewer's letter
of resignation that the check purported to cover "an
amount equal to, established dues." The letter goes on to
state that, the contract contained no provision for someone
who had resigned like Brewer to pay a service charge, and
thus Respondent Union deemed the check unacceptable
for such purpose unless Brewer directed that 'the amount
be credited "to dues" and rescinded his "letter of
resignation."
On June 12 Brewer responded by letter stating that his
only obligation under the statute was to tender an amount
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equal to the periodic dues; and that he was not required by
law again to become a member of Respondent Union. He
concluded by stating that he intended to adhere to the
position he had taken, and that from- now on he would
tender fees equal to dues as required by the contract, and
that as long as he continued to do so Respondent Union
had no right "to jeopardize [his] job."2 Respondent'Union
replied to this letter on June 22 returning therewith
Brewer's May 30 check. In pertinent part this letter reads
as follows:
With reference to your letter received on April 11,
1972 and your letter dated June 12, 1972, the provisions
of the current collective bargaining agreement pertain-
ing to the payment of a "service charge" in lieu of
initiation fee and periodic dues applies to only those
persons who may be exempt "by reason of religious
belief, certified by the local church officer." Do you
claim this religious exemption? We ask this particularly
in light of your reference to the Union Starch and
Refining Co. case.
You should also clarify whether by submitting
payments to the union, you are willing to be carried on
the, roster as a union member. The union security
provisions of the new agreement with Hershey require
union membership as a condition of employment, and
the obligation to pay initiation fees and dues in our
view, means that employees must, by paying such sums,
be willing to be union members. We do not understand
how you can be carried on the roster of the union as a
member and simultaneously stand by your decision to
resign from the union.
On June 30, Respondent Union sent a letter to
Respondent Employer calling its attention to the union-
security provisions of the contract, noting that Brewer's
resignation had been received on April 11, and that he had
been dropped from the union roster. The letter noted
further that 30 days had passed since the union-security
provisions of the new agreement had been in effect, and
demanded that pursuant to the terms of the agreement
Respondent Employer terminate Brewer no later than July
7. Brewer, who had been sent a copy of this letter, wrote
Respondent Employer on July 5 calling its attention to his
June 12 letter to Respondent Union, noting that Respon-
dent Union was refusing to accept money which had been
tendered, asserting that he would continue to keep up the
dues payments, and claiming it would be unlawful for
Respondent Employer to terminate him under such
circumstances.
Respondent Employer replied to Respondent Union on
July 6 noting that on the same day 'the' charge in Case
20-CB-2693 had been filed with the Board, and stating
that because of this it was Respondent Employer's
intention to keep Brewer in its employ until the Board case
was resolved. Respondent Employer stated further that if
Respondent Union felt there to be a violation of the
contract, its failure to terminate Brewer should be handled
2 It is undisputed that pursuant to Brewer's checkoff authorization
Respondent Employer checked off an amount equal to dues for each month
following May and June until the termination date. These amounts were
forwarded to Respondent Union which returned them for the same reason
that it had returned the May and June check.
through the grievance procedures and proceed to arbitra-
tion.
Thereafter Respondent Union requested arbitration, and
the matter was heard before Arbitrator Arthur B. Jacobs
on August 3. The issue litigated before the arbitrator
concerned the proper interpretation of section 2.03 of the
contract, with the arbitrator to determine whether or not
Lloyd Brewer had complied with the membership require-
ments as a condition of his continued employment. The
arbitrator noted the issue before him to be limited to a
question of interpretation of the agreement, stating that
because the matter was presently pending before the
Board, Respondent Union was not seeking an affirmative
or remedial award. Brewer received notification of the
arbitration hearing shortly before it opened but he did not
participate therein.3
On August 29, Arbitrator Jacobs issued his decision
finding that Brewer had not complied with his obligations
under section 2.03 of the contract which he deemed to
require membership as a condition of continued employ-
ment.
On November 6 Respondent Union once again request-
ed that Respondent Employer discharge Brewer inasmuch
as the arbitrator had found that he had not complied with
the membership obligation in section 2.03. A subsequent
request was later made orally. It was stipulated that in
response to these requests, and because Respondent
Employer had been advised that Respondent Union might
take economic action unless it did so, Respondent
Employer terminated the employment of Brewer on
December 14.
Discussion of the Issues and Conclusions
The primary issue in this case centers on the meaning of
the term "membership" as it is used in Section 8(a)(3) and
8(b)(2) of the Act.
The facts are undisputed. Brewer resigned and adamant-
ly refused to reinstate his membership although Respon-
dent Union not only urged him to do so but placed no
apparent obstacles in his way. Brewer admittedly contin-
ued to tender his dues, and his tender was repeatedly
rejected by Respondent Union solely because Brewer
declined to give his assent to its demand that he be carried
as a member on its rolls. Respondent Union takes a
position that it could lawfully require Brewer's membership
because the contract as written, and as interpreted by an
arbitrator, required this. Respondent Union contends the
statute does not render such a contract requirement
unlawful. We thus face the question of whether or not the
statute will permit an employer and a union to provide that
membership, as well as a proffer of required contract fees,
may be a condition of employment.
The General Counsel and the Charging Party assert the
membership requirement to be unlawful, relying on what
has become known as the Union Starch doctrine. This
doctrine takes its name from Union Starch and Refining
3 There are apparently differing views as to the adequacy of the notice
given Brewer of this arbitration , and as to the significance of Brewer's
failure to participate in any way at the arbitration hearing. I see no purpose
to be served in making a definitive resolution of such differences, and will
not undertake to do so.
HERSHEY FOODS CORPORATION , 901
Co., 87 NLRB 799, which was decided in 1949 and
subsequently upheld by the courts.4 The holding in Union
Starch has since been followed by the Board and the courts
in numerous cases.5 Union Starch stands for the general
proposition that while contracts requiring membership as a
condition of employment are lawful within the meaning of
the proviso to Section 8(a)(3), a union cannot lawfully
compel, or an employer acquiesce in, the discharge of an
employee except for his failure to pay required dues and
initiation fees. It has been held that where a union's
demand for discharge is premised upon an employee's
failure to take an oath, to attend a union meeting, to pay a
fine, to fill out an application blank, or to fulfill some
similar requirement, the demand is unlawful within the
meaning of Section 8(b)(2) even though it is nondiscrimi-
natory with regard to others in the unit, so long as the
employee has tendered the required dues and initiation
fees. Respondent Union here had made no specific
demand on Brewer, such as the payment of a fine or the
taking of an oath, and insofar as this record shows had
placed no obstacle in Brewer's way toward his becoming a
member except to insist that he rescind his resignation, and
affirmatively acquiesce in his being carried on the union
roster as a member. Respondent Union insists that the law
permits it to make such a limited demand, and to condition
Brewer's continued employment upon his yielding to it.
In a well reasoned brief Respondent Union challenges
the applicability of the Union Starch doctrine to Brewer's
situation. Respondent Union relies upon the Supreme
Court decision in N.L.R.B. v. General Motors Corporation,
373 U.S. 734 (1963), to support its contention. In General
Motors the Court was confronted with determining
whether or not a so-called "agency shop" was lawful. The
agency shop is a union-security provision which requires
that employees as a condition of employment pay dues and
initiation fees to a union, but does not require that such
employees become union members unless they so choose.
The employer in General Motors referred to the express
language in Section 8(a)(3) and 8(b)(2) of the Act which
recites that if certain conditions are met an employer and a
union may require "membership" as a condition of
employment. It was argued that since an agency shop did
not require "membership," but conditioned employment
solely on payment of fees, it did not fall within the
statutory language,, and was accordingly unlawful. The
Court reviewed the legislative history, and concluded that
the 1947 amendments to the statute had greatly limited the
meaning of the term "membership" when made a condi-
tion of employment. The agency shop, as a lesser form of
union security than a union shop, was held to meet this
limited membership concept, and thus to be lawful.
Although the Courtin General Motors was not called upon
to rule on a specific membership requirement, it did refer
to a situation where an employee "[might] have to become
a member." In the decision we find the following language:
The proposal for requiring the payment of dues and
fees imposes no burdens not imposed by a permissible
union shop contract and compels the performance of
only those duties of membership which are enforceable
by discharge under a union shop arrangement. If an
employee in a union shop unit refuses to respect any
union imposed obligations other than the duty to pay
dues and fees, and membership in the union is
therefore denied or terminated, the condition of
"membership" for Section 8(a)(3) purposes is neverthe-
less satisfied and the employee may not be discharged
for nonmembership even though he is not a formal
member. Of course if the -union chooses to extend
membership even though the employee will meet only the
minimum financial burden, and refuses to support or
`join" the union in any other affirmative way, the
employee may have to become a "member" under the
union shop contract, in the sense that the union may be
able to place him on its rolls. [Emphasis supplied.]
It is the italicized language in this last sentence upon
which Respondent Union relies to support its claim.
Respondent Union points out that the Court views an
agency shop as a "less compulsory contract ... which
demands less adherence to `the union," and asserts that this
signifies that the Court did not see agency shop and union
shop clauses as identical. Counsel argues that while in an
agency shop situation this may mean the money payment
feature is the equivalent of union membership, it does not
follow that there may not be other situations in which "for
the purposes of administering a union shop clause
consistent with the strictures of the proviso the employee
may have to become a member in the sense that the union
may be able to place him on its rolls." Counsel contends
that Respondent Union in, the instant case is seeking no
more than the Supreme ourt in the language quoted
above signified to be proper. Thus Brewer was notified that
Respondent Union would place him on the membership
roster, and would apply the tendered fees as membership
dues if he did no more than rescind his resignation or
affirmatively acquiesce that his fees be applied as member-
ship dues. Counsel asserts that the Court in the quoted
language envisaged a situation of just this sort, and
regarded the "membership" requirement as lawful so long
as the union limited its efforts to "placing [the employee]
on its rolls." Counsel would distinguish the entire Union
Starch line' of 'cases because in each one we find the union
demanding some particular prerequisite such as payment
of fines, attending meetings or the like, before the
employee could attain membership status, -while here
Respondent Union placed no obstacles of similar nature in
Brewer's way, but only asked that he signify acceptance of
union status. As Respondent Union puts it "the proviso to
Section 8(a)(3) does not permit any employee to have his
cake and eat it; that he tenders his dues and fees as the
union security clause requires, he must also accept union
membership status if he is to enjoy the job protection
which the clause provides."
Respondent Union's argument has compelling aspects,
but I am not convinced that it can be accepted. The Court
4 Union Starch and Refining Co., 186 F.2d 1008, (CA. 7, 1951), cert. men 's and Warehousemen 's Union Local 17, 172 NLRB 2016; United
denied 342 U.S. 315. Brotherhood of Carpenters and Joiners of America, Local 284 (Eugene
5 Some of these include International Brotherhood of Boilermakers Local Beauchamp), 115 NLRB 518; St. Regis Paper Co., 187 NLRB 120,
749 v. N.L.R.B. 466 F2d 343 (C.A.D.C., 1972); International Longshore-
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in General motors did riot have ,a membership requirement
before it. The employer's argument demanded that the
Court consider the meaning of the term "membership" in
the statute as affected by'the 1947 amendments. Accord-
ingly the Court turned to its own prior decisions and to the
legislative history. With regard to the legislative history the
Court noted in particular a statement by Senator Taft who,
after referring to a practice followed in Canada, asserted
the rule adopted by the conference committee to be
substantially the rule in effect in Canada which was that
"the employee must, nevertheless pay dues, even though he
does not join the union" and "if he pays dues without
joining he has the right to be employed."s The Court also
noted its own earlier decision in Radio Officers Union v.
N.L.R.B., 347 U.S. 17, in which the Court had also given
consideration to the legislative history and had concluded
that Congress had intended to prevent union-security
agreements to be used for any purpose other than to
compel -payment of union dues and initiation fees. The
Court in that case had expressed the view that Congress
had gone no further than to recognize the validity of a
labor organization's concern about "free -riders," and was
willing to give unions, power by contract to meet that
problem, but intended to withhold power from unions to
cause the discharge of employees for any other reason.
Speaking further of the term membership, the Court in
General Motors stated:
Moreover, the 1947 amendments not only abolished the
closed shop but also made significant alterations in the
meaning of "membership" for the purposes of union
security contracts. Under the second proviso of Section
8(a)(3) the burdens of membership upon which employ-
ment may be conditioned are expressly limited to the
payment of initiation fees and monthly dues. It is
permissible to, condition employment upon member-
ship, but membership, insofar as it has significance to
employment rights may, in turn be conditioned only
upon payment of fees and dues. "Membership" as a
condition of employment is whittled down to its financial
core. [Emphasis supplied.]
I view the Court's decision in General Motors as resting
on the premise that the legislative history had so limited
the term "membership" that employment might only be
conditioned an adherence to its so-called "financial core."
Since the "agency shop" was limited to this insofar as
conditioning employment was concerned, it could be
deemed a lawful "membership" requirement. I am satis-
fied, however, that -it was the broad overall view of the
Court that whenever an employer and a union sought to
make "membership" a condition of employment, the
statute did not envisage that full membership with all its
obligations could be required, but was holding that
"membership" was achieved whenever the employee
tendered the required fees, and no more could be asked.
This would meet the free rider problem, and Congress did
not intend to permit more.
The language in the decision upon which Respondent
6 2 LegHist LMRA 1422.
Union expressly relies does not effectively contradict this
rationale. The language is found near the end of the
decision after the Court had expounded its views on
membership, discussed the legislative, history and the
significance of prior court decisions, and had already
expressed its own "financial core" concept. Moreover the
Court speaks in terms of a union choosing "to extend
membership," noting that should the employee refuse to do
no more than tender dues he "may have to become a
member," but only in the sense that the union "may be
able to place him on its rolls." This does not sound in terms
of employee obligation toward the union, but more as a
statement of permissible union conduct in keeping its own
records. Thus the union might, if it chose, carry the
employee on its roster as a member. The Court does not
say, however, that it could require him to take affirmative
steps to get there, or that having unilaterally enrolled him it
could impose the obligations of full membership upon him.
Respondent Union sought Brewer's consent to become a
member, presumably because it wished to impose upon
him the full obligations of union membership. This step
Brewer refused to take. Under the circumstances I am
satisfied that neither the Union Starch line of cases nor the
General Motors case itself, despite the dictum to be found
in the latter, are properly interpreted to support a holding
that Brewer's unwillingness to become a union member
furnished lawful grounds for Respondent Union's bringing
about his discharge, and I so find.
Other cases involving a related issue further substantiate
the conclusion that the underlying rationale of General
Motors does not render a contractual membership require-
ment lawful.
In N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388
U.S. 175 (1967), the Supreme Court held that a union did
not act in violation of Section 8(b)(1)(A) when it imposed
fines, to be enforced by a lawsuit, if necessary, on union
members who had crossed a union picket line during an
authorized strike. In reaching this conclusion the Court
upheld a Board decision which had earlier been reversed
by the court of appeals. The Court reasoned that union
membership was based on a contractual relationship
between the union and the member. It was acknowledged
that Section 8(b)(1)(A) undertook to protect an employee's
right to refrain from engaging in concerted activities, but it
was held that the 'legislative history, construed in conj unc-
tion with the proviso to Section 8(b)(1)(A), did not signify
that Congress had taken away all union rights to discipline
its members through internal regulation, provided these fell
short of an effort to affect the members' employment
status. Thus fines of union members and their collection by
a lawsuit were held to fall within the ambit of lawful union
discipline.
The Board subsequently considered the effect of a union
member's resignation in Booster Lodge 405, IAM (The
Boeing Company), 185 NLRB 380.7 The Board held in
Boeing that a union did not violate Section 8(b)(l)(A) when
it fined its members, but that a union had no authority to
discipline employees for conduct which occurred after they
United States Court of Appeals for the District of Columbia in Booster
7 The Board's decision in this case was subsequently upheld by the Lodge 405, IAM (Boeing Co) v. N L. R.B., 459 F .2d 1143 (1972)
HERSHEY FOODS CORPORATION 903
had resigned. Referring to the significance of membership
in the union the Board stated:
The significance of the membership relationship is
that it establishes the union's authority over its
members. In joining a union, the individual member
becomes a party to a contract-constitution. Without
waiving his Section 7 right to refrain from concerted
activities, he consents to the possible imposition of
union discipline upon his exercise of that right. But the
contract between the member and the union becomes a
nullity upon his resignation. Both the member's duty of
fidelity to the union and the union's corresponding
right to discipline him for breach of that duty are
extinguished.
In the case at bar, the union's right to discipline
employees terminated upon the employees' submission
of their letters of resignation. The attempted imposition
of discipline for subsequent conduct was beyond the
powers of the union. It was not consented to by the
employees. Nor in our view was it protected by the
proviso of the Act.
Allis-Chalmers and Boeing were each 8(b)(1)(A) cases in
which the Board and the courts were not confronted with
the precise membership issue now before us. The treatment
of the term "membership" and its limitations as found by
the Board and courts, however, supports the conclusion
that I have reached above. A union functioning as the
bargaining representative of a group of employees may
need both their financial support and some means of
controlling dissident elements if it is to fulfill most
effectively its role as the exclusive representative of the
entire group. The statute permits the union lawfully to
secure the needed financial support, and effectively to
eliminate free riders. Allis-Chalmers and Boeing recognize a
union's right to exercise some degree of disciplinary
control in addition, provided it does not disturb the
employment relationship. This right, however, is grounded
in the membership relationship. Once that is severed there
is no longer any basis for the union to proceed with
disciplinary measures . I have found no case specifically
holding that full membership may be required as a
condition of employment. On the contrary, both the Board
and court cases indicate the membership relationship to be
a voluntary contractual one, which the member can
terminate when, and if, he chooses. By terminating his
membership an employee may lose some benefits of one
sort or another, but as we have seen from Allis-Chalmers
and Boeing he will also successfully avoid union discipline
by fines or other means for conduct which takes place after
his resignation.
In the instant case, while we do not find Respondent
Union asserting that Brewer had no right to resign, we find
it claiming that unless he rescinded the resignation, or at
least rejoined the Union, he would forfeit his employment
rights. However, if Brewer accepted such membership
status he would be subjecting himself to the union
disciplinary measures permitted by the holdings in Allis-
Chalmers and Boeing. Presumably it was to avoid just this
sort of thing that Brewer resigned from Respondent Union
in the first place. Thus if we are to sustain the contention of
Respondent Union Brewer would be confronted with a
dilemma-either he would be required to become a
member of Respondent Union and expose himself to the
possibility of union disciplinary measures, or if, as he did,
he chose to remain a nonmember he would forfeit his
employment status. I am satisfied that neither the legisla-
tive history, nor the rationale of the Board or court
decisions discussed above, will permit such a result.
For reasons set forth above I conclude that the statute
cannot be construed to require an employee to-become or
remain a full union member without his consent. Use of
the term "membership" in a contract maybe, appropriate,
but when employment is conditioned on such "member-
ship" it means no more than that the employee is required
to pay the contract fees uniformly required of others.
While voluntary membership may permit certain measures
of union discipline, when an employee resigns or otherwise
signifies his unwillingness to be bound by the membership
obligation, a contract requiring "membership" as a
condition of employment does not suffice to justify either a
union or an employer terminating the employment
relationship so long as the employee continues to tender
the required fees. Accordingly, I find that in the instant
case Lloyd Brewer effectively resigned from Respondent
Union, at all times thereafter tendered the fees required by
the collective-bargaining contract, and thus when Respon-
dent Union sought, and brought about, Lloyd Brewer's
discharge it engaged in conduct violative of Sections
8(b)(1)(A) and 8(b)(2) of the Act.
As set forth above while the attempts to cause the
discharge of Brewer came earlier , his actual termination
did not take place until after the conclusion of the hearing
in Case 20-CB-2693. On December 14 Respondent
Employer acting on the demand of Respondent Union
terminated Brewer's employment. Respondent Employer's
conduct is necessarily discriminatory within the meaning
of Section 8(a)(1) and (3) of the Act if in fact it was acting
with full knowledge of the circumstances surrounding
Respondent Union's demand. It is undisputed that
Respondent Employer was fully apprised of the nature of
Respondent Union's controversy with Brewer. Accordingly
I find that Respondent Employer by discharging Lloyd
Brewer on December 14 engaged in conduct violative of
Section 8(a)(1) and (3) of the Act.
The Charging Party argues that Respondent Union's
demand for arbitration, and the subsequent arbitration
which ensued, constituted independent violations of
Section 8(b)(2)' and 8(b)(1)(A) of the Act. Separate
violations based on the arbitration are not alleged by the
General Counsel. In view of my findings above I see no
purpose in treating with this matter even if we assume the
arbitration issue to have been fully litigated. The only issue
of significance concerns the lawful character of Respon-
dent Union's demands for Brewer's discharge and Respon-
dent Employer's acquiescence therein. Having found the
conduct to have been unlawful, no additional remedy
would be required or purpose be served, should it be
determined that Respondent, Union's efforts with regard to
arbitration were also unlawful . Accordingly I reject the
Charging Party's contention in this regard.
The Charging Party similarly seeks an order setting aside
the union security clause as interpreted by the arbitrator.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The arbitrator had before him solely a matter of contract
interpretation. He expressly refrained from considering the
lawful or unlawful nature of the union-security provision in
terms of the National Labor Relations Act. The Board of
course, and not the arbitrator, is vested with exclusive
jurisdiction to determine the legality of the contract
provision. I have found it to be unlawful to interpret this
provision as requiring membership as a condition of
continued employment. Clearly this finding supersedes any
decision of an arbitrator holding that as a matter of
contract interpretation, without regard to the statute,
membership is required. The General Counsel seeks no
specific remedy with respect to the union-security provi-
sion. Its future enforcement is at all times limited by the
statute. Thus the interpretation of the arbitrator to the
extent inconsistent with my holding here no longer
controls. Under the circumstances I see no reason for any
specific remedial order relating to enforcement of the
union-security provision in any other manner. Accordingly
I reject the Charging Party's contention in this regard.
III. THE REMEDY
Having found that Respondent Employer has engaged in
unfair labor practices violative of Section 8(a)(1) and (3) of
the Act, and that Respondent Union has engaged in unfair
labor practices in violation of Section 8(b)(1)(A) and
8(b)(2) of the Act, I shall recommend that each cease and
desist from its respective unfair labor practices and take
certain affirmative actions designed to effectuate the
policies of the Act.
Having found that Respondent Employer discriminatori-
ly discharged Lloyd Brewer on December 14, 1972, in
violation of Section 8(a)(1) and (3) of the Act, and that
Respondent Union caused such discrimination thereby
violating Section 8(b)(l)(A) and 8(b)(2) of the Act, I shall
recommend that Respondent Employer offer Lloyd Brewer
immediate and full reinstatement to his former or a
substantially equivalent job without prejudice to his
seniority and other rights and privileges, and that Respon-
dent Employer and Respondent Union jointly and several-
ly make Lloyd Brewer whole for any loss of pay he may
have suffered from the date of the discharge until the offer
of reinstatement .8 The backpay obligation will include
interest at the rate of 6 percent per annum with the loss of
pay and the interest to be computed in accordance with the
formula and method prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding I make the
following conclusions of law:
8 There are statements in the record to the effect that Lloyd Brewer
would reach compulsory retirement age in the relatively near future . At such
time his employment with Respondent Employer would terminate for
nondiscriminatory reasons. Nothing herein should be construed to require
reinstatement if the compulsory retirement age has already been reached.
Backpay liability would terminate with either an offer of reinstatement or
the date of compulsory retirement whichever came first.
1. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent Employer is an employer within the
meaning of Section 2(2) of the Act.
3. By discriminating against Lloyd Brewer, as found
above, Respondent Employer has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and 8(a)(1)
of the Act.
4. By attempting to, and causing, Respondent Employ-
er to discriminate against Lloyd Brewer in violation of
Section 8(a)(3) of the Act as found above, Respondent
Union has engaged in unfair labor practices within the
meaning of Section 8(b)(2) and 8(b)(l)(A) of the Act.
5. The aforesaid violations are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
RECOMMENDED ORDERS9
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following Recommended Orders:
A. Hershey Foods Corporation, its officers, agents,
successors and assigns shall:
1. Cease and desist from:
(a) Encouraging or discouraging membership in Respon-
dent Union, or any other labor organization, by discharg-
ing or otherwise discriminating against employees with
respect to their hire or tenure of employment in a manner
not authorized by the membership requirement provisions
of Section 8(a)(3) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative actions which I find
will effectuate the policies of the Act:
(a) Offer Lloyd Brewer, if he has not already reached
compulsory retirement age, immediate and full reinstate-
ment to his former or substantially equivalent job, without
prejudice to his seniority or other rights and privileges, and
jointly and severally with Respondent Union make said
Lloyd Brewer whole in the manner provided in the section
above entitled "The Remedy."
(b) Preserve , until compliance with any order for
reinstatement and backpay made by the Board in this
proceeding, and upon request make available to the said
Board and its agents , for examination and copying, all
payroll records, social security records, timecards, and
other records that are relevant to a determination of any
right of reinstatement and the amount of backpay due
under such order.
(c) Post in conspicuous places at Respondent Employer's
place of business in Oakdale, California, including all
places where notices to employees are customarily posted,
9 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and Recommended Orders herein shall, as provided
in Section 102.48 of the Rules and Regulations , be adopted by the Board
and become its findings, conclusions , and Orders, and all objections thereto
shall be deemed waived for all purposes.
HERSHEY FOODS CORPORATION
copies of the notice attached hereto and marked "Appen-
dix A". Copies of said notice, to be furnished by the
Regional Director for Region 20, shall, after being duly
signed by an authorized representative of Respondent
Employer, be posted by it immediately upon receipt
thereof and maintained by it for 60 consecutive days
thereafter in such conspicuous places. Reasonable steps
shall be taken by Respondent Employer to insure that the
notice is not covered, altered, or defaced by any other
material.io
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of receipt of a copy of
this Decision what steps Respondent Employer has taken
to comply therewith.
B. Respondent Union, its officers, agents, successors,
and assigns shall:
1. Cease and desist from:
(a) Causing, or attempting to cause Hershey Foods
Corporation to discharge or otherwise discriminate against
employees with respect to their hire or tenure of employ-
ment in a manner not authorized by the membership
requirement provisions of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing
any employee in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative actions which I find
will effectuate the policies of the Act:
(a) Jointly and severally with Respondent Employer
make Lloyd Brewer whole as provided in the section above
entitled "The Remedy."
(b) Post in conspicuous places, including places where
notices to members are customarily posted, and its usual
membership meeting place, copies of the notice furnished
herewith and marked "Appendix B". Copies of said notice
to be furnished by the Regional Director for Region 20,
shall, after being signed by a duly authorized representa-
tive of Respondent Union be posted by it immediately
upon receipt thereof and maintained by it for a period of
60 consecutive days thereafter. Reasonable steps shall be
taken by Respondent Union to insure that said posted
notice is not altered, defaced or covered by any other
material."
(c) Forthwith mail copies of said notice marked
"Appendix B" to said Regional Director after the copies
have been signed as provided above for posting by
Respondent Employer, if it so agrees, at the places where
Respondent Employer is required to post copies of the
notice "Appendix A."
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of receipt of a copy of
this Decision, what steps Respondent Union has taken to
comply therewith.
10 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 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."
11 See in. 10, supra
APPENDIX A
905
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT encourage membership in Teamsters,
Chauffeurs, Warehousemen & Helpers Union No. 386
by discharging or otherwise discriminating against
employees with respect to their hire or tenure of
employment in a manner not authorized by the
membership requirement provisions of Section 8(a)(3)
of the National Labor Relations Act, nor interfere in
any like or related manner with the rights of our
employees guaranteed by Section 7 of the Act.
WE WILL offer Lloyd Brewer reinstatement to his
former job unless, having reached compulsory retire-
ment age, his reinstatement is no longer required. In
either event jointly and severally with Teamsters,
Chauffeurs, Warehousemen & Helpers Local Union
No. 386, we will make Lloyd Brewer whole for any loss
of pay he may have suffered as a result of the
discrimination against him.
HERSHEY FOODS
CORPORATION
(Employer)
Dated By
(Representative) (Title)
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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 13018 Federal Building, Box
36047, 450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-0335.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Hershey
Foods Corporation to discharge or otherwise discrimi-
nate against employees with respect to their hire or
tenure of employment in a manner not authorized by
the membership requirement provisions of Section
8(a)(3) of the National Labor Relations Act, nor
interfere in any like or related manner with the rights of
employees guaranteed by Section 7 of the Act.
WE WILL jointly and severally with Hershey Foods
Corporation make whole Lloyd Brewer for any loss of
pay he may have suffered as a result of the discrimina-
tion against him.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS
UNION No. 386,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN & HELPERS
OF AMERICA
(Labor Organization)
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 concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office, 13018 Federal Building, Box
36047, 450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415=556-0335.
Dated By
(Representative ) (Title)