Hotel and Restaurant Local No. 66

National Labor Relations Board - Board Decisions

Oct 9, 1975

220 N.L.R.B. 1184 (N.L.R.B. 1975)

1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hotel, Motel, Restaurant, Cafeteria, Luncheonette &
Hospital Employees , Local No. 66, AFL-CIO (In-
terstate United Corporation) and Lydia Swiader.
Case 3-CB-2393
October 9, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On June 30, 1975, Administrative Law Judge Well-
ington A. Gillis issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief and Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Hotel, Motel, Restau-
rant, Cafeteria, Luncheonette & Hospital Employees,
Local No. 66, AFL-CIO, Buffalo, New York, its offi-
cers, agents, and representatives , shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was heard before me at Buffalo , New York, and is
based on an original charge and an amended charge filed
on August 22 and September 9, 1974, respectively, by Ly-
dia Swiader, an individual, upon a complaint issued on
October 21, 1974, by the General Counsel for the National
Labor Relations Board , hereinafter referred to as the
Board, against Hotel , Motel, Restaurant, Cafeteria, Lun-
cheonnette & Hospital Employees , Local No. 66, AFL-
CIO, hereinafter referred to as the Union, or the Respon-
dent, alleging violations of Section 8(b)(1)(A) and (2) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended (61 Stat. 136), and upon an answer timely filed
by the Respondent denying the commission of any unfair
labor practices.
All parties were represented by counsel and were afford-
ed full opportunity to examine and cross -examine , to intro-
duce evidence pertinent to the issues , and to engage in oral
argument . Subsequent to the close of hearing , timely briefs
were submitted by counsel for General Counsel and for
Respondent.
Upon the entire record in this case , and from my obser-
vation of the witnesses , and their demeanor on the witness
stand , and upon substantial , reliable evidence "considered
along with the consistency and inherent probability of tes-
timony" (Universal Camera Corp. v. N.L.R.B., 340 U.S.
474, 496 (1951) ), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Interstate United Corporation, a New York corpora-
tion , maintains its principal office and place of business in
the city of Chicago, Illinois , and various other places in-
cluding a restaurant at Milepost 447 of the New York
Thruway, New York, where it is engaged in the business of
providing and performing food and restaurant services and
related services . During the past calendar year, Interstate
United Corporation performed food and restaurant serv-
ices available to the public, the gross value of which ex-
ceeded $500 ,000. During the same period of time , the Em-
ployer received goods valued in excess of $50,000
transported to its place of business in the State of New
York directly from States other than New York. The par-
ties admit, and I find, that Interstate United Corporation,
hereinafter referred to as Interstate , is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE RESPONDENT LABOR ORGANIZATION
It was stipulated by the parties, and I find , that Hotel,
Motel, Restaurant , Cafeteria, Luncheonette & Hospital
Employees, Local No. 66, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Whether, as a party to an illegal practice of requiring as
a condition of employment new summer employees to exe-
cute work permit fee checkoff authorizations on the date of
initial hire, and accepting with notice employee work per-
mit fees deducted by Interstate prior to their 30th day of
employment, the Respondent has engaged in and is engag-
ing in conduct violative of Section 8(b)(1)(A) and (2) of the
Act.
B. The Facts
For a number of years dating back to 1962 the Respon-
dent and Interstate , pursuant to a Board certification, have
had a collective-bargaining relationship covering Interstate
220 NLRB No. 175
HOTEL AND RESTAURANT LOCAL NO. 66
employees at the Thruway Restaurant, located at the Ser-
vice Plaza near Milepost 447 on the New York State Thru-
way. The current contract, operational through May 1977,
contains the following clauses:
ARTICLE III
Section 3-Upon completion of his probationary peri-
od each employee hired shall become a member of the
Union. The Company agrees, on request of the Union,
to discharge any employee who fails to tender his initi-
ation or reinstatement fees and periodic dues in accor-
dance with the above.
Section 4-Each summer employee hired, shall obtain
a three month work permit from the Union.
ARTICLE IV - CHECK OFF
During the term of this Agreement, the Company, on
behalf of the Union and upon receiving proper indi-
vidually signed authorization cards from each mem-
ber, shall make a checkoff of monthly dues and initia-
tion fees and union assessments uniformly levied
against all union members, if any, and forward same
to the authorized Union representative.
Pursuant to the contract provisions, as well as union-
security and work permit provisions in contracts dating
back to 1962, employees through the years have been re-
quired to join the Union after 30 days and to pay dues. The
only exception to this has been the seasonal employees
hired for the summer months only. These employees have
been required to pay monthly work permit fees , which are
the equivalent in amount to union dues and are treated by
the Union exactly as union dues . In fact, the only differ-
ence between regular employees and summer employees
from the Union's standpoint is that the summer employees
do not have to pay an initiation fee.
As a result of these requirements, a practice evolved over
the years whereby each year all summer employees, ap-
proximately 40 in number, hired by the Company for the
months of June, July, and August, were required, at the
time of hiring, to sign the following payroll deduction au-
thorization, authorizing Interstate after 30 days to deduct
$5 per month from wages, and to remit same to the Union:
PAYROLL DEDUCTION AUTHORIZATION
WORK PERMIT FEES
TO INTERSTATE UNITED THRUWAY RES-
TAURANT
I understand that the terms and conditions of my
employment with you at your Thruway Restaurant are
governed by the collective bargaining agreement ex-
isting between you and Local 66 of the Motel, Restau-
rant, Cafeteria, Luncheonette and Drug Store Em-
ployees Union, AFL-CIO.
I, further, understand that after I have been em-
ployed at the Thruway Restaurant for thirty (30) accu-
mulated work days, I must as a condition of employ-
ment obtain a new permit each month while I remain
in your employ at your Thruway Restaurant.
I accept employment with you and agree to the
terms outlined above. I hereby authorize and request
1185
you to deduct from whatever wages I shall earn after I
shall have been in your employ at your, Thruway Res-
taurant for thirty (30) accumulated work days, the
amount of $5.00 each month, and to remit the same
amount to the above named Union in payment for the
required monthly work permits.
This authorization shall continue in effect as long as
I shall remain in your employ at your Thruway Res-
taurant, but not beyond 3 months, 1974.
SIGNED
DATE
While the origin of this checkoff form, "Payroll Deduc-
tion Authorization Work Permit Fees," is not revealed, in
recent years, as a matter of expediency, the Company has
mimeographed the form used by it in obtaining the em-
ployees' signature.
According to the undisputed testimony of Arthur Wlad-
is, general manager of Interstate at its Thruway Restau-
rant, at least during the last few years, summer employees
have been required to sign the work permit fee deduction
form upon being hired, or within a few days of being hired,
that the work permit is valid for 3 months, and that those
few employees who should be retained as permanent em-
ployees in filling vacancies at the end of the summer would
then sign union membership applications requiring initia-
tion fee deductions as well-as union dues deductions. Com-
pany records, in addition to the testimony of Wladis, reveal,
that in 1974, notwithstanding the 30-day provision con-
tained therein, pursuant to these work permit fee authori-
zations , at least 27 summer employees hired during the last
week of June had $5 deducted from their earnings on July
5, that others hired shortly thereafter had $5 deducted from
earnings within a few days of their hire, the checks cover-
ing these fee-dues deductions were forwarded to the Re-
spondent along with printouts.
The computer printout reveals the date each employee is
hired, the date he is terminated, when and how much dues
permit fees have been deducted and are being remitted to
the Union. Thus, there is no question but that the Union
was well aware of this practice and accepted its continu-
ance. That the Union, through its long-tenured steward,
Lek De Busse, knew and assisted in the practice of requir-
ing, at the time of hire, the new employees to sign a payroll
deduction authorization for work,permit fees, is reflected
in the unrefuted testimony of employee Judy Mackenburg.
Mackenburg testified, and company records show, that she
was hired on June 19, 1974, that on this date, during lunch
hour and in the presence of De Busse she was handed the
permit fee checkoff authorization by her manager along
with other forms, and told to fill them out.
A few minutes later a fellow employee, also in the pres-
ence of De Busse, complained about being required to sign
the form. Mackenburg then asked De Busse why she had
to sign the work permit fee checkoff, and was told that the
employees had to sign it when they started work. When
Mackenburg inquired how the permit fees were paid, De
Busse told her not to worry, "they just take it out of your
check." Mackenburg filled out the papers and worked at
Interstate until August 18, 1974. Company records, and
printouts submitted to the Respondent with dues and per-
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mit fees, show, as in the case of the many other summer
employees, that on July 12 Mackenburg had $5 deducted
from her pay and again , on July 26, she had another $5
deducted.
rights guaranteed in Section 7, in violation of Section
8(b)(l)(a) of the Act.
IV. THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR
PRACTICES
Analysis and Conclusion
The General Counsel argues in its brief that the contract
clause requiring each summer employee hired to obtain a
3-month work permit fee from the Union is violative of
Section 8(bXl)(A) and (2) of the Act because it requires
employees to pay a permit fee prior to being employed for
30 days . The General Counsel also asserts that the practice
of requiring new employees as a condition of employment
to execute a dues permit fee checkoff authorization was
known and acquiesced in by the Respondent Union and
that such constitutes a Section 8(b)(IXA) and (2) violation.
While admitting on the record the illegality of the practice
of the Company requiring summer employees to sign
checkoff authorizations upon their being hired and to col-
lect from them permit fee money prior to the conclusion of
their first 30 days of employment and covering this initial
period , the Respondent defends solely on the ground of
lack of knowledge.'
While I am not in agreement with the General Counsel
concerning the alleged illegality of the contract clause per
se, the record undisputably bears out the remainder of the
General Counsel's argument . The credible record evidence
renders it unmistakenly clear, notwithstanding the termi-
nology of the union-security contract provision and the
language contained in the payroll deduction authorization
for work permit fees, that (a) Interstate , with knowledge
and acquiescence by the Respondent, required employees
as a condition of employment to sign permit fee checkoff
authorizations upon being hired , and (b) Interstate, pur-
suant to these checkoff authorizations deducted work per-
mit fees during and covering the first 30 days of employ-
ment and subsequently turned over these fees with
explanatory accompanying data to the Respondent. Thus,
the Respondent 's sole argument in this regard must fall,
and with it, its entire defense.
Controlling of the matter presented is the Board's deci-
sion in Western Building Maintenance Co.,2 where it was
found that the respondent union was fully aware that
membership applications and dues deduction authoriza-
tions were being signed at or prior to the time of actual
employment, and that sums were being deducted from the
wages of employees for membership dues and remitted to
the Union, either prior to the 30th day, or subsequent
thereto for the first 30-day period , and that such constitut-
ed a violation of 8(b)(l)(A) and (2) of the Act.
By the foregoing conduct, I find that the Respondent has
attempted to cause , and has in fact caused , Interstate Unit-
ed Corporation to discriminate against employees in viola-
tion of Section 8(a)(3), thereby violating Section 8 (b)(2),
and restraining and coercing employees in the exercise of
1 An earlier settlement agreement entered into between Interstate and the
Board disposed of similar charges against Interstate
2 162 NLRB 779 (1967). Directly on point , also, is Booth Services, Inc., 206
NLRB 862 ( 1973); see also Zidell Explorations, Inc., 175 NLRB 887 (1969).
The activities of the Respondent set forth in sec. III,
above, occurring in connection with the operations of In-
terstate United Corporation, as set forth in sec. I, above,
have a close , intimate , and substantial relation to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Upon the basis of the above findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Hotel, Motel, Restaurant, Cafeteria,
Luncheonette and Hospital Employees, Local No. 66,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Interstate United Corporation is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
3. By jointly engaging and participating in a hiring pro-
cedure with Interstate United Corporation, whereby job
applicants or newly hired employees were required to exe-
cute dues checkoff authorizations as a condition of em-
ployment, pursuant to which Union dues were deducted
from the wages of such employees during the first 30 days
of their employment, and remitted to the Respondent
Union, the Respondent Union has engaged in, and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(b)(2) and (1)(a) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain affirma-
tive action which is necessary to effectuate the policies of
the Act.
It has been found that the Respondent has caused or
attempted to cause Interstate United Corporation to dis-
criminate against employees in violation of Section 8(a)(3),
thereby engaging in unfair labor practices within the mean-
ing of Section 8(b)(2) and 1(a) of the Act. As the extent of
the discrimination against employees is limited to the
amount they were compelled to pay in membership dues or
permit fees for the first month of their employment, it is
recommended only, that the Respondent be ordered to
reimburse the first month's dues of all employees hired
since June 1, 1974, with interest at the rate of 6 percent per
annum . As the record also establishes that, since June 1,
1974, dues-checkoff authorizations were unlawfully ob-
tained from employees , it is further recommended that all
such checkoff authorizations not be honored in the future.
HOTEL AND RESTAURANT LOCAL NO. 66 1187
Upon the foregoing facts, conclusions of law, and the
entire record , and pursuant tb Section 10(c) of the Act, I
hereby issue the following recommended:
ORDERS
The Respondent, Hotel, Motel, Restaurant, Cafeteria,
Luncheonette and Hospital Employees, Local No. 66,
AFL-CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Interstate United
Corporation to discriminate against job applicants or new-
ly hired employees by requiring them to execute dues
checkoff authorizations for said Respondent Union prior
to the expiration of the 30-day statutory grace period pro-
vided for in Section 8(a)(3) of the Act, and requiring the
employer to deduct from the wages of its employees union
dues and to remit such dues to the Respondent during and
covering said 30-day grace period.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed in Sec-
tion 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 continued employ-
ment, as authorized in Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Reimburse all employees of said employer for mo-
nies illegally exacted from them as Union dues or permit
fees in a manner or to the extent set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all mem-
bership dues, and other records necessary to compute the
amount of money illegally exacted by said Respondent
from the employees involved.
(c) Post at its business office and meeting place, includ-
ing but not limited to, its office in Buffalo, New York,
copies of the attached notice marked "Appendix." a Copies
of said notice, on forms provided by the Regional Director
for Region 3, after being duly signed by an authorized rep-
resentative of the Respondent, shall be posted, immedi-
ately upon receipt thereof, and maintained for at least 60
consecutive days thereafter. Reasonable steps shall be tak-
en by each of the Respondents to ensure that said notices
are not altered, defaced, or covered by any other material.
(d) Promptly, upon receipt of copies of said notice from
the Regional Director, return to him signed copies for post-
ing by the Interstate United Corporation, it being willing,
in places where notices to employees are customarily post-
ed.
(e) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
3In 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.
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 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
WE WILL NOT cause or attempt to cause Interstate
United Corporation to discriminate against job appli-
cants or newly hired employees by requiring them to
execute dues-checkoff or work permit fee checkoff au-
thorizations for our Union prior to the expiration of
the 30-day statutory grace period provided for in Sec-
tion 8(a)(3) of the Act, and requiring Interstate United
Corporation to deduct from the wages of its employ-
ees union dues or work permit fees and to remit such
dues to our Union during and covering the said 30-
day grace period, in violation of Section 8(bX2) of the
Act.
WE WILL NOT in any like or related manner restrain
or coerce the employees of Interstate United Corpora-
tion, or of any other employer, in violation of Section
8(b)(1)(A) of the Act.
WE WILL reimburse all employees of Interstate Unit-
ed Corporation for any moneys illegally exacted from
them as union dues or work permit fees.
HOTEL , MOTEL , RESTAURANT, CAFETERIA,
LUNCHEONETTE AND HOSPITAL EMPLOYEES, LOCAL
No. 66, AFL-CIO