Hospital & Nursing Home Employees Loc. 113

National Labor Relations Board - Board Decisions

Apr 14, 1977

228 N.L.R.B. 1500 (N.L.R.B. 1977)

1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hospital and Nursing Home Employees Union Local
113, AFL-CIO (Mounds Park Hospital) and
Dianne Martin . Case 18-CB-752
April 14, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
evidence and to examine and cross-examine witnesses. The
parties waived oral argument. Posthearing briefs have been
filed on behalf of the General Counsel and Respondent.
Upon the entire record, together with careful observation
of the witness and consideration of the briefs, I make the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
On November 29, 1976, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
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 Respondent, Hospital and
Nursing Home Employees Union Local 113, St.
Paul, Minnesota, its officers, agents, and representa-
tives, shall take the action set forth in the said
recommended Order.
' In her Decision the Administrative Law Judge made reference to Sec
8(b)(3) of the Act It is evident from the text of the decision that the
Administrative Law Judge intended the reference to be to Sec 8(b)(2) of the
Act We hereby correct the inadvertent error
DECISION
JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu-
ant to a charge filed on August 2, 1976,1 by Dianne M.
Martin, a complaint was issued on September 8 against
Hospital and Nursing Home Employees Union Local 113,
AFL-CIO (hereinafter called Respondent), alleging that on
July 19 Respondent, in violation of Section 8(b)(1)(A) and
(2) of the Act,2 caused Mounds Park Hospital (hereinafter
the Employer), to discharge Martin, an employee, in
contravention of Section 8(a)(3) of the Act.
Pursuant to due notice, a hearing was held before me in
Minneapolis, Minnesota, on October 19. The General
Counsel and Respondent were represented by counsel and
Mounds Park Hospital, through a representative, was
permitted to appear as amicus curiae. All parties were
afforded full opportunity to present oral and written
I Unless otherwise specified, all dates herein are in 1976
228 NLRB No. 197
Mounds Park Hospital is a Minnesota corporation with
its office and principal place of business in St. Paul,
Minnesota, engaged in the operation of a hospital provid-
mg health care services. During the calendar year 1975, a
representative period, the Employer in the course and
conduct of its business operations derived gross revenues in
excess of $250,000, and purchased and received goods
valued in excess of $50,000, which were shipped to and
received by the Employer, at its Minneapolis facility
directly from points outside the State of Minnesota. The
Employer is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Respondent is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Issue
Respondent is the exclusive bargaining representative of
the Employer's nonprofessional employees. The collective-
bargaining agreement covering the employees contains an
"agency shop" provision. In administering the agreement
Respondent allows its members at least 90 days' delinquen-
cy in the payment of fees and dues, as provided in
Respondent's constitution and bylaws, whereas it allows
nonunion members only 10 days' delinquency in the
payment of service fees, as provided in the collective-
bargaining agreement. Under this policy, Respondent
caused the Employer to discharge the Charging Party when
she failed to pay her service fee for July by the 10th of the
month. The issue presented is whether Respondent violated
the Act by causing the discharge when a member of the
Union employed by the Employer would have been
allowed a 90-day grace period for the payment of union
dues.
B. The Facts
The relevant facts are simple and were stipulated at the
hearing. So far as here relevant, the collective-bargaining
agreement provides:
All employees covered by this contract who are now or
may hereafter become members of the Union, shall,
during the life of this agreement remain members of the
Union in good standing as a condition of employment.
"In good standing", for the purpose of this agreement,
2 National Labor Relations Act, as amended , 29 U S C § 151, el seq
HOSPITAL & NURSING HOME EMPLOYEES LOC. 113 1501
is defined to mean the payment of a standard initiation
fee and standard regular monthly dues, uniformly
required as a condition of acquiring or retaining
membership in the Union.
If an employee is not "in good standing," he is to be
discharged upon 3 days' notice by the Union to the
Employer and the employee.
The agreement also provides that new employees may
choose not to join the Union and, if they so elect, they
"must pay a service fee to the Union." A notice to be given
each employee when he is hired sets forth the employee's
right to elect not to join the Union and his obligation to
pay the union service fees equivalent to union initiation
fees and dues. The contract further provides that monthly
service fees for nonmembers
[A]re due and payable the first day of the month .. .
and shall be paid by the tenth day of each month. An
employee who fails to make the payments required by
this section shall be terminated within three (3) days
after receipt of notice to the employee and Hospital of
delinquency.
The Union constitution provides, in pertinent part:
Any member in arrears for three (3) months dues shall
be notified of such delinquency and he or she may be
notified to appear before the General Executive Board
to explain such delinquency. Any member failing to
appear on proper notice shall be fined for non-
appearance in addition to the penalties imposed as
defined in this article.
Martin, the Charging Party, was hired on December 9,
1974. Upon completion of her 60-day probationary period,
she elected not to join the Union. Under date of July 13,
1976,3 the Union wrote her, saying that under the contract
service fees must be received "by the 10th of each month,
at the latest" and that if her payment for July was not
received in the union office within 3 days the Union would
"have no choice but to ask for [her] immediate dismissal
from Mounds Park Hospital." Martin thereupon sent the
Union a check dated July 16 covering her service fees for
July and August. Under date of July 19 the Union wrote
the Employer demanding Martin's "immediate dismissal."
Under date of July 20, the Union returned Martin's check,
with a covering letter saying that the Union had already
requested her dismissal and "therefore, we cannot accept
your payment at this time." She was discharged as of July
22. In its termination notification to Martin, the Hospital
said that "the failure to submit dues to the Union
constitutes breach of agreement." Thus, "[d]ue to circum-
stances beyond [the Employer's] control," it was "forced to
terminate" Martin. The letter also said:
I understand that you have been informed of the
process of re-instatement and I would advise you to
3 Martin had received previous notices of delinquency but the Union had
not requested her discharge The prior notices are not relevant to the present
case
4 Martin had actually been allowed 24 days in February 1975, 17 in
October 1975, and 21 in January 1976 In each case she had been given a
warning notice
seek this recourse. This procedure, if successful,
however, does not insure you of future employment or
position at this hospital.
Although there was no direct testimony on this point,
presumably the reference in the quoted paragraph was to
article XVI, section 3, of the umon constitution, covering
reinstatement of "member[s] suspended or dismissed under
the Contract terms." Such reinstatement is discretionary
with the Union's executive board and general membership,
upon the payment of all arrearages, fines, and assessments
plus a reinstatement fee of at least $12.50.
C. Discussion and Conclusions
There is no dispute that union members are afforded a
grace period of at least 90 days in payment of their dues
before Respondent seeks their dismissal, whereas nonunion
members are granted only 10 days' grace .4 On the face of
it, this situation constitutes discrimination affecting tenure
of employment.
Respondent's sole justification appears to be that each
employee is given a "free choice," i.e., he can choose union
membership, with its obligation and benefits, including the
generous grace period, or he can choose nonmembership,
without the obligations and benefits of membership,
including the generous grace period.
At least in the other than right-to-work States, agency.
shop agreements like the one here involved are legal.
N. L. R. B. v. General Motors Corp., 373 U.S. 734, (1963). As
the Court said in N.L.R.B. v. General Motors, supra at 744,
an agency-shop agreement effectuates "the desire of
Congress to reduce the evils of compulsory unionism while
allowing financial support for the bargaining agent." But,
as General Motors also notes , neither a union member nor a
nonmember may be discharged so long as he meets "the
minimum financial burden" of membership.
Section 8(b)(2) forbids a union to cause an employer to
discriminate against any employee except for the employ-
ee's "failure to tender the periodic dues and the initiation
fees uniformly required as a condition of acquiring or
retaining membership." [Emphasis supplied.]
In the present case the Union requires nonmembers to
pay set fees within 10 days5 of their stated due date in
order to retain their jobs, whereas members are not
required to pay in less than 90 days in order to retain their
jobs. As pointed out by the General Counsel, union
members in effect are given 90 days or more free credit,
which is denied nonmembers. Obviously the payments
required are not "uniform" for members and nonmembers
of the Union.
It is no answer that, as observed by Respondent, union
members are subject to other penalties, such as fines for
nonattendance at union meetings, and receive some
benefits, such as death benefits. The statute was designed
to assure employees free choice of whether to assume such
obligations and reap such benefits, without having the
5 Employees have no right to brief extensions such as those allowed
Martin At most a delinquent nonunion employee might be entitled to 3
days, i e, the warning notice period.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice affect their employment. It may be that an
employee declining to assume union membership while
paying the equivalent of union dues is making an unwise
decision. But this is a choice statutorily assured and his
employment status is insulated from the effects of such
choice.
The union administration of the agency-shop provision
clearly discriminates in favor of union members in a
manner affecting tenure of employment. There is no
"compelling reason why Respondent required" such
disparity of treatment between union members and
nonmembers "in order to maintain proper employee
representation." Local Union 798 of Nassau County, New
York, et a! (Nassau Division of the Master Painters
Association of Nassau-Suffolk Counties, Inc.), 212 NLRB
615, 617 (1974). The only apparent purpose and effect of
such discrimination is to encourage union membership.
The conclusion is inescapable that "Respondent herein has
impinged on the employment relationship in a manner
irrelevant to legitimate union interests. " Ibid. 6
Accordingly, I conclude that, as alleged, Respondent
violated Section 8(a)(1)(A) and (2) of the Act by maintain-
ing and enforcing unequal requirements for payments of
dues and fees by union members and nonmembers and by
threatening to cause and causing Mounds Park Hospital to
discharge Dianne M. Martin, on or about July 19, for
nonpayment of her monthly agency fee by July 16, 3 days
after notification, whereas a member of the Union similarly
situated would have been allowed a grace period of at least
90 days before being subjected to action by the Union and
the possibility of discharge from employment upon request
by Respondent.
CONCLUSIONS OF LAW
1. Respondent, Hospital and Nursing Home Employ-
ees Local 113, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
2. Mounds Park Hospital is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
3. By maintaining a practice whereby members of the
Union employed by Mounds Park Hospital are permitted
to become delinquent in the payment of union dues and
fees at least 3 months before being subject to action by the
Union which might lead to dismissal, whereas employees
who are not members of the Union are subject to dismissal
upon the Union's request for delinquencies of only 10 days
(plus 3 days' notice) in the payment of service fees,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(l)(A) and (2)
of the Act.
4. By attempting to cause and by causing Mounds Park
Hospital to discharge Dianne Martin as of July 22, 1976,
pursuant to the unlawful practice set forth in Conclusion of
Law 3, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1)(A) and (2) of the Act.
5. By the aforementioned acts, Respondent has re-
strained and coerced employees in the exercise of their
rights guaranteed by Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1)(A) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has been and is main-
taining an unlawfully discnminatory policy and practice in
administering the agency-shop provision of its collective-
bargaining agreement with Mounds Park Hospital, I shall
recommend that Respondent be required to cease and
desist therefrom. Because discriminatory discharge goes to
the very heart of the Act, and Respondent has caused such
discharge, a broad cease-and-desist order is appropriate.
Additionally, since it has been found that Respondent
unlawfully caused Dianne M. Martin's discharge by
Mounds Park Hospital, it will be recommended that
Respondent be required to seek Martin's immediate and
full reinstatement by the Employer. It will also be
recommended that Respondent be required to make her
whole for any loss she may have suffered by her unlawful
discharge at Respondent's behest. Backpay is to run from
July 23, 1976, until such time as Martin is offered full
reinstatement by Mounds Park Hospital or she obtains
other employment substantially equivalent to what she had
with Mounds Park Hospital. See, e .g., International Broth-
erhood of Painters and Allied Trades, Local Union No. 945
(Ebasco Services, Inc.), 221 NLRB 1249 (1975); United
Steelworkers of America, AFL-CIO (Interroyal Corp.) 223
NLRB 1184 (1976); United Steelworkers of America, Local
8093 AFL-CIO-CLC (Kennecott Copper Corporation, Ray
Mines Division), 225 NLRB 802 (1976). Backpay is to be
computed in accordance with F. W. Woolworth Company,
90 NLRB 289 (1950), with 6-percent per annum interest in
accordance with Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
In addition, of course, the customary notice-posting
requirements will be recommended.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER7
The Respondent , Hospital and Nursing Home Employ-
ees Union Local 113, AFL-CIO, St. Paul, Minnesota, its
officers, agents , and representatives , shall:
1. Cease and desist from:
6 Court decisions cited by Respondent involving the election of statutory
remedies under the Railway Labor Act are inapposite The present case
presents the Union's attempt to impose a statutorily prohibited choice
between union membership and nonmembership which affects the employ-
ment of persons represented by the Union
7 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 , and recommended Order herein shall, as provided in Sec
102.48 of the 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
HOSPITAL & NURSING HOME EMPLOYEES LOC. 113 1503
(a) Maintaining, enforcing, or otherwise giving effect to
any policy, practice, agreement, or arrangement with
Mounds Park Hospital, or any other employer, pursuant to
which members of Respondent are afforded more time
within which to pay union fees or dues than is afforded to
nonmembers for the payment of service or agency fees
before their discharge by the Employer is requested
pursuant to a union-shop or agency-shop provision of a
collective-bargaining agreement.
(b) Causing or attempting to cause Mounds Park
Hospital, or any other employer, to discriminate in any
other manner against any employee or group of employees
in violation of Section 8(a)(3) of the Act.
(c) In any other manner restraining or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Request Mounds Park Hospital to offer Dianne
Martin immediate and full reinstatement to her former
position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, with backpay.
(b) In the manner set forth in "The Remedy" section of
this Decision, make Dianne Martin whole for any loss she
may have suffered as a result of her discharge by Mounds
Park Hospital as of July 22, 1976.
(c) Post at its business office and meeting halls, and at all
places where notices to its members and other employees in
the bargaining unit are customarily posted, copies of the
attached notice marked "Appendix." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 18, after being duly signed by Respondent Union's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its members are customarily
posted. Reasonable steps shall be taken by Respondent
Union to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Furnish to the Regional Director for Region 18
copies of the aforementioned notice for posting by Mounds
Park Hospital, it being willing.
(e) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
8 In the event 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
.,f the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
present evidence and arguments, it has been found that we
violated the National Labor Relations Act. We have been
ordered to post this notice and we intend to abide by the
following:
WE WILL NOT (nor will our officers, business
representatives, business agents, stewards, or anyone
acting for us) request that Mounds Park Hospital, or
any other employer, discharge any employee for not
being "in good standing," or for nonpayment of any
service or "agency" fees or for delinquency in payment
of any fees, within any period of time shorter than is
allowed to members of the Union within which to pay
union fees or dues.
WE WILL NOT in any other manner restrain or coerce
any employees in the exercise of the rights guaranteed
them in Section 7 of the Act, except to the extent 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) and as
administered in a lawful nondiscriminatory manner.
WE WILL allow all employees the same "grace
periods" for the payment of service fees under our
collective-bargaining agreement with Mounds Park
Hospital, or any other employer, as we allow union
members for the payment of dues and fees.
WE WILL request Mounds Park Hospital to offer
Dianne M. Martin full and immediate reinstatement to
her former position or, if that position no longer exists,
to a substantially equivalent position, without loss of
seniority and other benefits, and with backpay.
WE WILL make Dianne M. Martin whole for any loss
of pay and benefits she may have suffered because of
her discharge by Mounds Park Hospital.
HOSPITAL AND NURSING
HOME EMPLOYEES UNION
LOCAL 113, AFL-CIO