Local #171, Assn. of Western Pulp & Paper Wkrs.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 971 (N.L.R.B. 1967)

LOCAL #171, ASSN. OF WESTERN PULP & PAPER WKRS. 971
Local No. 171, Association of Western Pulp
and Paper Workers (Boise Cascade
Corporation ) and Donald R. Fagerness.
Case 36-C B-364.
June 23, 1967
DECISION AND ORDER
On September 7, 1966, Trial Examiner James R.
Webster issued his Decision in this proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal of those allegations.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner only to the extent consistent
herewith.
Union dues are set by the Union's bylaws. Prior to
July 1965, dues were $3.75 per month. In July 1965,
the bylaws were amended2 to provide that "The
monthly dues of the Local Union are $6.00 per
member with $2.00 refunded for monthly meeting
attendance. All dues payable monthly in advance to
the Financial Secretary, unless payroll deductions
for dues authorized." The Employer (Boise Cascade
Corporation) was duly notified by the Union's
financial secretary that dues deductions should
henceforth be $6. It is not shown that the Employer
was told, or became aware, that the Union's bylaws
provided for a "refund" of dues for attendance at
meetings.
Employee Donald Fagerness , starting in February
1965, began to pay $3.75 per month dues, as then
required. He chose not to sign an authorization of
dues deduction, but rather to pay his dues directly to
the financial secretary. On June 28, he was notified
that he was 4 months in arrears, including June, and
was given until July 10 to "bring these dues up to
date, or it will cost another initiation fee plus all back
dues." He satisfied his obligation. Beginning with
July 1965, as required by the amendment, Fagerness
began paying $6 per month as dues. In December
1965 he was notified that, as he was 3 months
delinquent in his dues, he would, in accordance with
the Union's bylaws, have to pay his arrears ($ 18) and
a new initiation fee ($15) in order to be reinstated .3
He was further advised that if such amounts were
not paid by January 1, 1966, the Union would request
that the Employer discharge him.4 Fagerness sent
checks in the amounts of $18 and $15 to the Union,
but wrote on the face of each check, "Under
Protest."5 He was notified that the checks had been
received, and that he was thereby reinstated and
was once again a member in good standing.
Fagerness thereafter filed the instant charge.6
In The Leece-Neville Company, 140 NLRB 56, 62,
a majority of the Board found that a refund of dues
such as that involved in the instant case amounts to
a fine for nonattendance at union meetings. In
reaching its decision that such a refund is unlawful,
it stated: "There is no issue in this case as to the
legality, standing alone, of the method used
internally by the Union to stimulate attendance.
What is in issue, and what we are finding unlawful,
is the enforcement of the disparity in the Union's
dues structure, predicated on attendance or
nonattendance at union meetings, through utilization
of the union-security agreement between the Union
and the Company...." This position was affirmed in
United Packinghouse, Food & Allied Workers, Local
673 (J-M Poultry Packing Co), 142 NLRB 768. Two
Members disagreed with the majority position in
Leece-Neville.7 The Board has, in the instant case,
reconsidered its decisions in those cases and a
majority of the Board has decided to overrule those
decisions.
Practical business needs as well as the salutary
considerations of democratic action for having fuller
membership participation in the affairs of voluntary
associations, including unions, are too obvious for
explication. Poor attendance at business meetings,
sometimes even a lack of a quorum to proceed, is
common. It cannot be gainsaid that the public's
interest is served best when the memberships of
labor organizations that are the exclusive statutory
representatives of employees8 take an active and
responsible role in governing their unions and
i In the absence of exceptions thereto, we adopt pro forma the
Trial Examiner's recommendation that the allegations of the
complaint pertaining to Section 8(b)(2) be dismissed
2 No one challenges the propnety of the amendment procedure
3 That this requirement conformed to the provisions of the
Union 's bylaws is not challenged
" At all times material herein, the Union and the Employer had
a contract which provided that "The [Union] may request the
Signatory Company to discharge an employee on account of his
failure to become and/or remain a member of the Signatory Union
as required by this Section 3 "
5 Fagerness did not state what he was protesting
6 It is undisputed that Respondent Union never requested the
discharge of any employee for failure to pay the refundable
portion of the dues required The provision in the Union's bylaws
for the $2 refund was eliminated by vote of the membership at a
regular business meeting in April 1966, and no member has since
received any payment for attendance at union meetings
r Members Fanning and Brown, neither of whom participated
in the United Packinghouse case
9 Respondent Union is such a statutory representative
165 NLRB No. 97
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formulating union policy . Moreover , the Supreme
Court has stated that a basic purpose of Title I of the
1959 amendments to the Act, entitled "Bill of Rights
of Members of Labor Organizations ," is protecting
and fostering "participation by the rank and file in
the affairs of the Union " (American Federation of
Musicians of the United States and Canada , et al. v.
Wittstein , et al., 379 U.S. 171, 182-183 ). At the very
least , we must be careful not to "impair the right of a
labor organization to prescribe its own rules with
respect to the acquisition or retention of
membership therein ," as cautioned by Congress in
the proviso to Section 8(b)(1)(A) of the Act.
In addition to instituting long-range educational
programs , many labor organizations have resorted to
door prizes , lotteries , refreshments , entertainment,
and the like, in an attempt to achieve meaningful
attendance at business meetings . In furtherance of
such an end, the "refund" system herein was
inaugurated ,9 not by motion of union officials, but by
vote of the employee-members themselves, in the
due course of a regular business meeting. The vote
was to raise the dues, and to begin the system of
rewarding those in attendance at regular meetings
by giving each $2 . When it was decided to eliminate
the $2 refund system, the $6 dues obligation was
retained.
We cannot agree that, because the Union 's bylaws
spoke in terms of refunding a portion of dues for
attending meetings , the refund was converted pro
tanto into a penalty upon those members who did not
attend . Such a refund does not differ from the use of
union funds , obtained in the form of dues, for the
service of refreshments , the award of prizes, or
entertainment at meetings.
Nor do we agree that the Union's dues structure
was rendered disparate by the refund device. Each
member was assessed an equal amount of dues, and
each member was accorded an equal opportunity to
share in the reward offered for giving of his time to
necessary union affairs . The amount of dues
required of members was uniform ; the method of
collecting such dues was uniformly applied. In our
opinion , the Union 's use of such funds to reward
those attending regular business meetings was a
legitimate device,10 aimed at achieving a salutary
objective , under the Act, and we consider a contrary
holding as constituting an unwarranted intrusion
into Respondent Union 's internal affairs in a manner
proscribed by the proviso to Section 8(b)(1)(A).
0 The record shows that, following the implementation of the
"refund" device , the attendance at business meetings increased
threefold
10 We do not think it significant that the payment is labeled a
reward or a refund; it is not in either event a fine unlawfully
exacted.
11 The contrary holdings of The Leece-Neville Company, sapra,
and United Packinghouse, Food, etc , Local 673, are hereby
Accordingly, we shall dismiss the complaint in its
entirety."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
CHAIRMAN MCCULLOCH AND MEMBER JENKINS,
dissenting:
Although the majority decision states that it is
overruling the holdings of Leece-Neville'2 and United
Packinghouse, 13 the rule of law which our colleagues
are now overturning dates back considerably further
than those cases. Almost 17 years ago, in Electric
Auto-Lite Company,14 the Board held that a
provision of a union's bylaws, which "exonerated"
union members who attended meetings from the
payment of a portion of their dues, in reality imposed
a fine or penalty on those who did not go to the
meetings. The Board there stated:''
The statute specifies that the "periodic dues"
be "uniformly required." This we read
essentially to include the requirement that such
dues be charged to all members alike or that
any distinctions in amount be based upon
reasonable general classifications. A charge
which distinguishes between individual
members who attend particular meetings and
those who do not attend particular meetings, in
our opinion, is not one "uniformly" applied.
Moreover, we do not doubt that a member's
attendance at a union meeting is highly
desirable and salutary to carry out the
democratic process. But, as we have already
held, [citing Union Starch & Refining
Company, 87 NLRB 779] the Act as written
may not be used as a means of requiring such
attendance. The Act's machinery is equally
unavailable to enforce the collection of a fine to
accomplish this union objective.
Leece-Neville and United Packinghouse merely
reasserted this earlier decision, the Board finding no
essential difference between an "exoneration" from
payment of dues and a "refund" of already paid dues
for attendance at union meetings.16 In either
situation, the employee who does not attend
meetings is required to pay a sum greater than that
asked of active union members. In other words, the
overruled.
12 140 NLRB 56, enfd in part 330 F 2d 242 (C A 6)
13 142 NLRB 768
14 92 NLRB 1073, enfd 196 F 2d 500 (C A 6), cert denied 344
U S 832
15 92 NLRB 1073, 1077
11; It should be noted that Electric Auto-Lite and Leece-Nevtlle
were enforced by the courts
LOCAL #171, ASSN. OF WESTERN PULP & PAPER WKRS.
employee who does not wish to engage in union
activities must pay for that privilege.
Under the proviso to Section 8(b)(1)(A),'7 the
Board may not interfere with a union's internal rules
so far as they regulate the acquisition or retention of
union membership. Certainly, devices to foster
active participation in union affairs are to be
encouraged, and there is no illegality in a union's
fining those who do not so participate or in its
rewarding those who do. But where an employee's
failure to take an active part in union affairs is used
to affect his job status, the Act is violated.
Under a valid union-security clause, an employee
must tender the periodic dues and initiation fees
uniformly required by the union in order to keep his
job. But he need do no more. Section 7 of the Act
guarantees employees the right to refrain from any
and all concerted activities except the payment of
dues and initiation fees required by a union-security
agreement. Employees have the right to be "good,
bad, or indifferent members, ... without imperiling
their livelihoods."'s Respondent's imposition of an
extra charge on those who failed to attend meetings
penalized them for an exercise of their Section 7
rights. The threat to cause the discharge of an
employee for his failure to pay that charge was thus
violative of Section 8(b)(1)(A).
The majority terms the refund provision a
"reward" for attendance at meetings, and it states
that the amount of dues required of members was
uniform. But semantics cannot get around the fact
that the arrangement penalized those who preferred
to refrain from union activity. By giving a member
the alternative of either paying a charge for his
nonattendance at meetings or losing his job, a union
coerces him in the exercise of his Section 7 right to
remain aloof from the union. The simple expedient
of labeling the charge a "refund" for those who
attend meetings, rather than a "fine" on those who
do not, should not enable a party to circumvent the
clear proscription of the Act.
Our colleagues point out that unions often offer
door prizes, refreshments, entertainment, and the
like at union meetings and that the use of union dues
for those purposes is not different from the giving of
a cash refund of dues for attendance at the meetings.
But devices such as prizes, refreshments, and
entertainment are customary practices at social and
business gatherings throughout the country; the
giving of cash refunds is not. Prizes, refreshments,
etc., are merely inducements to make the meetings
more attractive to those attending, and their cost is
spread over the entire membership-not just
imposed on those who fail to go to the meetings.
Where, as here, the benefits granted those who
attend, rather than being merely incidental to the
meetings, clearly have the intent and effect of
penalizing those who choose not to attend, and the
penalty is sought to be enforced through threat to job
rights, we fail to see how the clear mandate of the
973
Act can be subordinated to what might otherwise be
viewed as a salutary union objective.
A union fine imposed upon members who do not
register to vote in State and Federal elections would
be aimed at a worthy, even laudable, purpose.
Clearly, it is not collectible by an employer or a
union threatening the loss of employment under a
union-shop clause to those who fail to register or to
pay the fine. Neither can this worthy aim be
transmuted into an exaction that is thus collectible,
in our view of what Congress meant by "periodic
dues ... uniformly required" in Section 8(a)(3), by
the simple device of raising all members' "dues"
and then providing for a "refund" in the same
amount to those who register. The variety of other
desirable union objectives that might also be
powerfully fostered by such threats to job rights
under union-shop contracts on nonperformance of
the desired act or the alternative payment, is limited
only by the ingenuity and imagination of resourceful
union leaders. It is not so clear to us as to our
colleagues that Congress meant to go so far.
The Board decisions overruled by the majority
were not an unwarranted intrusion into the unions'
authority to prescribe membership requirements
under the proviso to Section 8(b)(1)(A), as our
colleagues assert. They were rather a rejection of
union actions endangering job rights which the
Board found not authorized by the Act. As stated by
the Board in Union Starch & Refining Company,'9 in
construing Section 8(a)(3) "If the union imposes any
other (than periodic dues and initiation fees)
qualifications and conditions for membership with
which he is unwilling to comply, such an employee
may not be entitled to membership, but he is entitled
to keep his job."
For these reasons, and for those expressed in
Leece-Neville, we would find that Respondent
violated Section 8(b)(1)(A) of the Act by threatening
to cause the discharge of an employee if he did not
pay the charge for nonattendance at meetings.
'r "Provided , That this paragraph shall not impair the right of a
labor organization to prescribe its own rules with respect to the
acquisition or retention of membership therein . "
18 The Radio Officers' Union of the Commercial Telegraphers
Union, AFL v N L.R.B., 347 U S 17
19 87 NLRB 779, enfd 186 F 2d 1008 (C.A 7), cert. denied 342
u S 815.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This case with all
parties represented was heard before me in Portland,
Oregon, on May 10, 1966, upon a complaint of the General
Counsel and answer of Local No. 171, Association of
Western Pulp and Paper Workers, herein called the
Respondent. The complaint was issued on April 13, 1966,
upon a charge filed on March 10, 1966. The complaint
alleges that Respondent, by refunding a portion of monthly
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union dues to members for attendance at union meetings,
while a party to a union-security contract, is in effect
thereby requiring members to pay a fine for
nonattendance as a condition of employment in violation of
Section 8(b)(1)(A) and (2) of the Act.
Brief has been filed by the Respondent and has been
carefully considered. Upon the entire record and my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Boise Cascade Corporation, a Delaware
corporation, with principal offices at Boise, Idaho, is
engaged in the manufacture and sale of lumber, plywood,
paper, and other wood products in the States of Idaho,
Washington, and Oregon. Only its paper plant
located at Vancouver, Washington, is involved in this
proceeding. During the past year the Boise Cascade
Corporation, in the course and conduct of its business
operations, manufactured, sold, and distributed from its
Vancouver, Washington, paper plant, products valued in
excess of $100,000, of which products valued in excess of
$50,000 were shipped from said plant directly to States of
the United States other than the State of Washington.
The Boise Cascade Corporation, herein called
Employer, is an employer within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Issues and Prefactory Statement
The issue is whether or not a refund of $2 of union dues
for monthly meeting attendance constitutes a fine for
nonattendance ; and if so, has there been any violation of
the Act where no employee ' s termination has been
requested , under a union -security agreement , for failure to
pay the total monthly dues of $6, and where there has been
no tender , or refusal to accept by Respondent , of the sum
of $4 per month as union dues.
At all times material herein Respondent and the
Employer have been parties to a contract containing the
following union -security provisions:
SECTION 3
A. Any employee hired on or after June 1, 1964,
shall, as a condition of employment, become and
remain a member of the Signatory Union on or
after the thirtieth calendar day following his date of
employment or the effective date of this Agreement,
whichever is the later.
B. Any employee who is a member of the Signatory
Union on the date of execution of this agreement, or
who thereafter becomes a member shall, as a
condition of employment, maintain such membership
for the duration of this agreement.
C. Union Shop Special Exclusion
Notwithstanding anything hereafter in this
Section 3, any individual employee at these mills
who was not covered by the union security
provisions of the agreement with the prior
unions that expired on June 1, 1964, will not be
required to join the Signatory Union during the
terms of this agreement but may do so voluntarily
at any time, whereupon he would be covered
thereafter by the maintenance of membership
provisions.
In addition to the special exclusion noted
above, the Signatory Union and management at a
member mill may agree mutually that an
individual employee who has religious objections
or other valid objections to membership in the
Signatory Union needed not be covered by any
union shop provisions that may be provided
hereafter.
D. . . . If, in fact, the Signatory Union is able to
show proof that 80 percent or more of the employees
in the bargaining unit at that mill are members of the
Union, all employees in the bargaining unit at that mill
shall be required to join the Union as a condition of
employment and to remain members in good
standing, subject only to the exceptions noted in "C"
above. . . . [Respondent qualified under this section
of the contract.]
F. The Signatory Union, or its Local Union
involved may request the Signatory Company to
discharge an employee on account of his failure to
become and/or remain a member of the Signatory
Union as required by this Section 3.
During the period from July 1965 to April 1966, the
bylaws of Respondent provided as follows:
The monthly dues of the Local Union are $6.00_ per
member with $2.00 refunded for monthly meeting
attendance. All dues payable monthly in advance to
the Financial Secretary, unless payroll deductions for
dues authorized.
Prior to July 1965 the union dues were $3.75 per month. A
paramount reason for the change in the bylaws was to
increase attendance at union meetings , and the change
had this effect. Average attendance at monthly meetings
was increased from approximately 40 to 45 to
approximately 140 out of a total membership of
approximately 325 employees.
In accordance with the provisions of the union-security
agreement, Donald R. Fagerness, the Charging Party and
an employee of Boise Cascade Corporation, joined the
Union in February 1965. During the period from July 1965
through March 1966 he paid $6 monthly dues to the Union,
although on two occasions Fagerness was delinquent in his
payments. On June 28, 1965, he was notified by the
Union's financial secretary that he was 4 months in
arrears, and he was given to July 10 to pay his dues. He
paid his delinquent dues by July 10.' Again in December
1965, he was notified verbally by the financial secretary
that he was delinquent in his dues. He asked that he be
sent a statement. By letter dated December 20, 1965, he
was advised that he was 3 months delinquent in dues, and
that, in accordance with the Union's bylaws, he would also
have to pay a new initiation fee ($15) to be reinstated. He
was advised that this was to be taken care of by the first of
This event occurred more than 6 months prior to the filing of the charge herein on March 10, 1966
LOCAL #171, ASSN. OF WESTERN PULP & PAPER WKRS.
the year, otherwise the Employer would be notified to pull
his card, that is, terminate him. Shortly thereafter,
Fagerness sent checks to Respondent in the amounts of
$18 and $15 to cover his dues and reinstatement fee. He
wrote on each of these checks, "Under Protest."
B. Conclusions
Respondent contends that the $2 refund is not a fine,
but a benefit or financial inducement offered to members
to encourage their attendance at union meetings.
Respondent also contends that no employee has been
required or coerced to pay a total of $6 in monthly dues in
order to maintain his employment under the union-
security agreement, and that no employee has been
terminated for failure to pay the refundable portion of the
dues, and that Fagerness has not at any time tendered, nor
has Respondent at any time refused to accept, the sum of
$4 per month for union dues.
During the time involved, Fagerness did not attend any
regular monthly union meetings until March 1966. On this
occasion he was given a refund of $2. The charge herein
was filed March 10, 1966. In April 1966, the bylaws of the
Union were changed to eliminate the refund provision; the
monthly dues remained at $6.
Fagerness' employer was not asked at any time to
terminate him, nor has Respondent ever asked an
employer to discharge an employee under the union-
security agreement. However, there is no evidence that
there has been any failure by any union member to pay $6
in monthly dues, or that, therefore, there has been any
occasion to evoke the union-security provisions in this
regard. During the period that the refund provision was in
the bylaws, Fagerness did not at any time tender less than
$6 as monthly dues, nor has he or any union member been
informed by a representative of Respondent on any
occasion that he could tender less than $6 for monthly
union dues. Respondent's financial secretary, Willis Gano,
testified, in effect, that when he wrote Fagerness for his
delinquent dues in December 1965, Fagerness owed the
sum of $6 a month for each of the months he was
delinquent.2
A union may prescribe its own rules with respect to the
acquisition or retention of members and may fine its
members, or levy premium dues on them, for failing or
refusing to attend meetings; thus, the bylaw covering
refund of dues is not, in itself, a violation of the Act and the
union may take steps to enforce it. But, the internal rules
of a labor organization on such matters, not being
"periodic dues uniformly required," may'not be enforced
by the union through the provisions of a union-security
agreement. The Board has held that a refund of union
dues, such as was provided by the union bylaws in this
case, constitutes a fine rather than a reward. Under a valid
union-security agreement a union may require, as a
condition of employment, membership in the union and
the payment of periodic dues and initiation fees
2 Financial Secretary Gano was asked on cross-examination,
"By your letter, General Counsel's 6, when you said monthly
dues, you meant six dollars monthly dues, didn't you?" Gano
answered: "If he owed that, that's what he did-what he owed
would be . If that's what our dues are, that's what it would be,
six dollars a month "
3 United Packinghouse, Food and Allied Workers, Local 673,
975
"uniformly required," but it may not require attendance at
union meetings or the exaction of a fine or premium dues
as a penalty for failure or refusal to attend union meetings
as a condition of employment. The $6 dues were not
"uniformly required" of all members; only those who did
not attend monthly meetings were required to pay this
amount. In the instant case, Respondent did not "utilize"
the union-security agreement by approaching the
Employer for Fagerness' discharge, but it did utilize the
agreement to effectuate the collection of back dues from
Fagerness, which included the $2 fine, by threatening him
that his Employer would be notified to terminate him if his
back dues were not paid. When he made payment, he was
notified by letter dated January 3, 1966, that the receipt of
the two checks totaling $33 reinstated him in the Union
and made him a member in good standing, and that
"although you had both checks marked `Under Protest,'
[this] does not change the fact, that the constitution of the
A.W.P.P.W. and the bylaws of Local No. 171 still prevail
and must be observed." I find that by this threat to utilize
the union-security agreement to collect other than
"periodic dues and the initiation fees uniformly required,"
as a condition of continued employment, Respondent has
thereby restrained and coerced employees within the
meaning of Section 8(b)(1)(A) of the Act.3
Respondent contends that it has not requested
discharge of Fagerness and therefore has not "enforced"
the union-security agreement. Cases similar to the instant
case that have come before the Board have involved an
enforcement or utilization of a union-security agreement
by means of a request for discharge pursuant to such an
agreement.
By statements of Respondent's financial secretary to
Fagerness and by his testimony, it is evident that the
members, being directed by the bylaws to pay the sum of
$6 in monthly dues in order to remain "in good standing,"
were expected by him to do so. The union-security
agreement provides that "a member shall, as a condition
of employment, maintain such membership for the
duration of this agreement." I reject Respondent's
contention here that a tender of $4 and a refusal thereof is
necessary to establish an unfair labor practice.
The Employer, as a party to the union-security
agreement has checked off union dues, including the $2
fine, under a voluntary checkoff arrangement, in which
many of the employees participated. (Fagerness did not
participate in this checkoff arrangement.) But,
Respondent has at no time approached the Employer to
take action against any employee for not being "in good
standing" with the Union; thus, there has been no causing
or attempting to cause the Employer to discriminate
against employees. It is one thing to possess the means of
causing a discrimination, or to threaten to use such means
and violate Section 8(b)(1)(A) of the Act in so doing; but
until Respondent has approached the Employer on the
matter, he has not committed an "act" proscribed in
Section 8(b)(2) of the Act.
142 NLRB 768; N L R.B v. The Leece-Neville Co, 330 F.2d 242
(C.A 6); The Electric Auto-Lite Company, 92 NLRB 1073, affd
196 F 2d 500 (C A. 6), cert denied 344 U S 823 To the contrary is
the decision of the U.S. Court of Appeals for the Third Circuit, in
N L.R.B. v. Bakery & Confectionery Workers' International Union
of America, Local 12 AFL-CIO, 245 F.2d 211
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Employer's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Boise Cascade Corporation is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees of Boise Cascade
Corporation with discharge for failure to pay union fines,
Respondent did from September 13, 1965, through March
1966, restrain and coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby violating
Section 8(b)(1)(A) of the Act.4
4. The above-described unfair labor practices affect
interstate commerce within the meaning of Section 2(6)
and (7) of the Act.
5. Respondent has not caused or attempted to cause the
Employer to discriminate against an employee as
proscribed in Section 8(b)(2) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, I shall recommend that it cease and
desist therefrom, and that it take certain affirmative action
which is necessary to effectuate the purposes of the Act.
Having found that Respondent did from September 1965
to March 1966, inclusive, charge dues of $6 per month and
refunded $2 per month to members who attended the
monthly meetings, and having found that this amounts, in
effect, to a fine or premium not uniformly required, and
having found that the payment thereof was a condition of
employment, I shall recommend that Respondent
reimburse Fagerness and all employees for all dues in
excess of $4 per month collected from September 13, 1965,
and not returned to members who attended the monthly
meetings, with interest thereon at the rate of six percent
per annum, to be computed in the manner set forth in
Seafarers International Union of North America, Great
Lakes District, 138 NLRB 1142.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following:
RECOMMENDED ORDER
Local No. 171, Association of Western Pulp and Paper
Workers, its officers , representatives , and agents, shall:
1. Cease and desist from:
(a) Threatening employees of Boise Cascade
Corporation with discharge for failure to pay union fines.
(b) In any like or related manner restraining or coercing
employees of the Employer in the exercise of rights
guaranteed 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)
of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Refund to each of the employees of Boise Cascade
Corporation the fines collected from them for
nonattendance at union meetings from September 13,
1965, and thereafter, and not refunded for attendance at
union meetings.
(b) Preserve and, upon request, make available to the
Board and its agents , for examining and copying, all
records necessary or useful to determine the amount of
refunds due under the terms of this Recommended Order.
(c) Post at Respondent's business offices and meeting
halls, copies of the attached notice marked "Appendix."5
Copies of said notice, to be furnished by the Regional
Director for Region 19, after being duly signed by
Respondent' s managing representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Mail to the Regional Director for Region 19 signed
copies of the aforementioned notice for posting by Boise
Cascade Corporation, the latter willing to post said notices
in places where notices to employees are customarily
posted.
(e) Notify said Regional Director, in writing , within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.s
IT IS FURTHER RECOMMENDED that the allegations of the
complaint alleging a violation of Section 8(b)(2) of the Act
be dismissed.
4 The charge herein was filed March 10, 1966, and served on
Respondent on March 12, 1966. Section 10(b) of the Act precludes
a finding of any unfair labor practice occurring more than 6
months prior to filing of charge and service of a copy on
Respondent.
5 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
6 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read- "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL No. 171,
ASSOCIATION OF WESTERN PULP AND PAPER WORKERS
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT threaten employees of Boise Cascade
Corporation with discharge for failure to pay union
fines.
LOCAL #171, ASSN. OF WESTERN PULP & PAPER WKRS.
WE WILL NOT in any like or related manner restrain
or coerce said employees in the exercise of rights
guaranteed 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) of the Act.
WE WILL refund to all employees of Boise Cascade
Corporation all fines collected from them because of
nonattendance at union meetings from September 13,
1965, and thereafter, and not refunded for attendance
at union meetings.
LOCAL No. 171,
ASSOCIATION OF WESTERN
PULP AND PAPER WORKERS
(Labor Organization)
Dated By
(Representative ) (Title)
977
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.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board's Regional Office, 327 Logan
Building , 500 Union St., Seattle, Washington 98101,
Telephone 583-4583.