Local 282, International Union Of Electronic, Electrical, Salaried, Machine And Furniture Workers, Afl-Cio (Davis Co.)

National Labor Relations Board - Board Decisions

Sep 30, 1988

291 N.L.R.B. 182 (N.L.R.B. 1988)

182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Furniture Workers Division , Local 282, Internation
al Union of Electronic , Electrical, Salaried, Ma
chine and Furniture Workers , AFL-CIO (The
Davis Company) and Everlena C Yarbrough
Case 26-CB-2402
September 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a charge filed by Everlena C Yarbrough
an individual the Regional Director for Region 26
issued a complaint and notice of hearing on Octo
ber 9 1987 and an amendment to complaint on
December 2 1987 The complaint alleges that the
Union the Respondent engaged in certain unfair
labor practices within the meaning of Section
8(b)(1)(A) of the National Labor Relations Act
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
On March 2 1988 the parties jointly petitioned
the Board to transfer this proceeding directly to
the Board for findings of fact conclusions of law
and the issuance of a Decision and Order The par
ties stipulated that they waived a hearing before an
administrative law judge the issuance of an admin
istrative law judge s decision and the filing of ex
ceptions and oral argument before the Board The
parties also agreed that the stipulation of facts the
charge the complaint and notice of hearing the
amendment to complaint the Respondents answer
to the complaint the Respondents answer to the
amendment to complaint the Respondents second
amended answer to complaint the order indefinite
ly postponing hearing and attached exhibits consti
tute the entire record in this case
On May 17 1988 the Board issued its Order ap
proving the stipulation and transferring the pro
ceeding to the Board Thereafter the Respondent
and the General Counsel filed briefs in support of
their respective positions
The Board has considered the stipulation the
briefs and the entire record in this proceeding and
makes the following
FINDINGS OF FACT
I JURISDICTION
The Davis Company a corporation manufac
tures furniture at its office and place of business in
Memphis Tennessee where it annually sells and
ships products goods and materials valued in
excess of $50 000 directly to points outside the
State of Tennessee and purchases and receives
products goods and materials valued in excess of
$50 000 directly from points outside the State of
Tennessee We find that the Company is an em
ployer within the meaning of Section 2(2) (6) and
(7) of the Act and the Union is a labor organization
within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
The issue here is whether the Respondent may
lawfully inform nonmembers that they will be
charged a grievance processing fee We find that
the Respondent violated the Act
A Facts
The Respondent represents the Company s pro
duction and maintenance employees in Tennessee a
right to work State Currently, the Respondent and
the Company are parties to a collective bargaining
agreement effective September 12 1986 through
September 11 1989 which contains inter alia a
grievance and arbitration procedure
The parties stipulated that about September 10
1987 the Respondent issued the following memo
randum to bargaining unit employees who were
not members of the Respondent
ATTENTION ALL NON MEMBERS
Effective immediately all non members will be
charged a fee for handling grievances an
equal amount to the cost of representation or
the dues left to be paid under the contract
whichever is less
About November 20 1987 the Respondent posted
the following notice on the employee bulletin
board
ATTENTION ALL NON MEMBERS
Effective immediately all non members will
be charged a fee for handling grievances an
equal amount to the cost of representation or
the dues left to be paid under the contract
whichever is less
The Union will not refuse to process your
grievances because of this policy Should you
wish to file a grievance please follow the
normal contract procedures
B Contentions of the Parties
The General Counsel contends that in the ab
sence of a valid union security clause a labor orga
nization breaches its duty of fair representation by
charging or threatening to charge nonmembers the
costs of processing grievances The General Coun
sel argues that an exclusive bargaining representa
tive must act fairly and impartially on behalf of all
unit employees particularly in right to work States
291 NLRB No 24
FURNITURE WORKERS LOCAL 282 (DAVIS CO)
where union security clauses are prohibited The
General Counsel also claims that the November 20
1987 notice does not cure the Respondents dis
cnminatory treatment of nonmembers because it
fails to assure nonmembers that the Respondent
will not attempt to collect future payment for
grievance processing
The Respondent contends that it has not
breached its duty of fair representation because the
fee is reasonable and for services rendered and fail
ure to charge nonmembers any fee would treat
nonmembers and members unequally The Re
spondent also argues that the November 20 1987
notice states that implementation of the grievance
processing charge will not interfere with employ
ees rights under the collective bargaining agree
ment The Respondent claims that it has acted in
accord with the notice by not refusing to process
nonmembers grievances nor threatening to insti
tute suits to compel payment for such services The
Respondent argues however that the Act does not
mandate that unions must provide grievance proc
essing services free of charge In light of the indi
vidual s expanding rights in relation to labor orga
nizations and increasing ability to resign from
them, the Respondent urges that unions should not
be required to provide free representation to em
ployees who choose not to be bound by unions
dictates
C Discussion
Section 8(b)(1)(A) of the Act prohibits a labor
organization from restraining or coercing employ
ees in the exercise of their Section 7 rights, which
include the freedom to refrain from joining or as
sisting a labor organization This freedom, howev
er is subject to a valid collective bargaining agree
ment requiring union membership as a condition of
employment
The Respondent represents employees in the
State of Tennessee where a labor organization may
not require union membership as a condition of em
ployment 1 Where state law prohibits a labor orga
nization from compelling membership a union may
not require a fee for vital collective bargaining
services, including grievance processing, which is
due nonmembers as a matter of right Hughes Tool
Co, 104 NLRB 318 329 (1953) See also Machinists
Local 697 (Canfield Rubber), 223 NLRB 832 835
(1976) Such a fee coerces employees in the exer
cise of their Section 7 freedom to refrain from join
ing a labor organization American Postal Workers
(Postal Service) 277 NLRB 541 (1985) According
' The Respondents current collective bargaining agreement with the
Company does not contain either a union security or agency shop clause
183
ly we find that the Respondent violated Section
8(b)(1)(A) of the Act by informing bargaining unit
nonmembers they will be charged a grievance
processing fee
CONCLUSIONS OF LAW
By informing nonmembers who are represented
by the Respondent that they will be charged a
grievance processing fee, the Respondent violated
Section 8(b)(1)(A) of the Act
REMEDY2
Having found that the Respondent has violated
Section 8(b)(1)(A) of the Act by informing non
members who are represented by the Respondent
that they will be charged a grievance processing
fee we shall order it to cease and desist and take
certain affirmative action designed to effectuate the
policies of the Act, including rescinding its unlaw
ful grievance processing fee policy
ORDER
The National Labor Relations Board orders that
the Respondent Furniture Workers Division
Local 282, International Union of Electronic Elec
tncal Salaried Machine and Furniture Workers
AFL-CIO Memphis Tennessee its officers
agents and representatives shall
1 Cease and desist from
(a) Informing nonmembers who are represented
by the Respondent that they will be charged a
grievance processing fee
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) Rescind its unlawful policy of charging non
members a grievance processing fee
(b) Post at its business office meeting halls and
all places where notices to represented employees
are customarily posted copies of the attached
notice marked Appendix 3 Copies of the notice,
on forms provided by the Regional Director for
Region 26, after being signed by the Respondent s
authorized representative shall be posted by the
Respondent immediately upon receipt and main
tained for 60 consecutive days in conspicuous
2 We deny the General Counsels request for a visitatonal provision
Under the circumstances of this case we find the provision unnecessary
Cherokee Marine Terminal 287 NLRB 1080 (1988)
3 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al 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
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
places including all places where notices to repre
rented employees are customarily posted Reasona
ble steps shall be taken by the Respondent to
ensure that the notices are not altered defaced or
covered by any other material
(c) Sign and return to the Regional Director suf
ficient copies of the notice for posting by The
Davis Company if willing at all places where no
tices to employees are customarily posted
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these
rights
To organize
To form join or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT inform nonmembers who are rep
resented by us that they will be charged a griev
ance processing fee
WE WILL NOT in any like or related manner re
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL rescind our unlawful policy of charg
ing nonmembers a grievance processing fee
FURNITURE WORKERS DIVISION
LOCAL 282 INTERNATIONAL UNION
OF ELECTRONIC ELECTRICAL SALA
RIED MACHINE AND FURNITURE
WORKERS AFL-CIO