Local 569, United Packinghouse Workers, Etc.

National Labor Relations Board - Board Decisions

Feb 25, 1960

126 N.L.R.B. 870 (N.L.R.B. 1960)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 569, United Packinghouse Workers of America, AFL-
CIO [Frank Jaworski Sausage Company, Party to the Con-
tract] and Mary Dzierzawski . Case No. 7-CB-565. Febru-
ary 25, 1960
DECISION AND ORDER
On September 28, 1959, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding finding that
the 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Leedom
and Members Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications noted below.'
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Union, its officers,
representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Entering into, performing, or giving effect to any provision
in any agreement, understanding, or practice with Jaworski Sausage
Company, which requires membership in Respondent Union as a con-
dition of employment, except as authorized by the proviso to Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
'For the reasons set forth in Chun King Sales, Inc, 126 NLRB 851, the Board finds
that the effectuation of the policies of the Act does not require the imposition of the
Brown-Olds remedy recommended by the Trial Examiner. Member Bean, who dissented
from the failure of the Board majority to apply Brown- Olds in Chun King, agrees that
Brown-Olds should not be applied in this case. He believes the two cases are dis-
tinguishable in important respects-in the present case , unlike Chun King, the evidence
shows that, despite the unlawfulness of the union -security clause , all employees were in
fact given 30 days in which to join the Union In other words, the unlawful clause was
enforced only in a lawful manner. Moreover , in view of the unfair labor practices
found herein , we shall also modify the Trial Examiner 's recommended order and require,
in substance , that the Respondent cease giving effect to any illegal union -security provi-
sion in any agreement , understanding , or practice with Jaworski Sausage Company.
126 NLRB No. 100.
LOCAL 569, UNITED PACKINGHOUSE WORKERS, ETC. 871
(b) Causing or attempting to cause Frank Jaworski Sausage Com-
pany to discriminate against employees in regard to their hire or
tenure of employment, or any term or condition of employment, except
to the extent permitted by Section 8 (a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
(c) Restraining or coercing the employees of Frank Jaworski
Sausage Company in their right to engage in, or to refrain from
engaging in, any or all of the activities guaranteed by Section 7 of
the Act, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization executed in
conformity with Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices in Detroit, Michigan, copies of the
notice attached hereto marked "Appendix.'' 2 Copies of said notice,
to be furnished by the Regional Director for the Seventh Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted by the said Respondent immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive days there-
after in conspicuous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Mail to the Regional Director for the Seventh Region signed
copies of the notice attached hereto marked "Appendix" for posting at
the premises of Frank Jaworski Sausage Company, its retail stores
and markets for 60 consecutive days in places where notices to em-
ployees are customarily posted, if the Employer is willing to do so.
Copies of said notices, to be furnished by the Regional Director for
the Seventh Region shall, after being signed by an authorized repre-
sentative of the Respondent Union, be forthwith returned to said
Regional Director for such posting.
(c) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND EMPLOYEES OF
FRANK JAWORSKI SAUSAGE COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, we hereby notify our members and the
employees of Frank Jaworski Sausage Company that:
WE WILL NOT enter into, perform, or give effect to any provi-
sion in any agreement, understanding, or practice with Frank
Jaworski Sausage Company which requires membership in our
Union as a condition of employment, except as authorized by the
proviso to Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL NOT cause or attempt to cause Frank Jaworski Sausage
Company to discriminate against employees in regard to their
hire or tenure of employment, or any term or condition of em-
ployment, except to the extent permitted by Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE, WILL NOT restrain or coerce the employees of Frank
Jaworski Sausage Company in their right to engage in, or to
refrain from engaging in, any or all of the activities guaranteed
by Section 7 of the Act, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization executed in conformity with Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
LOCAL 569, UNITED PACKINGHOUSE WORKERS
OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the National Labor Relations
Act as amended ( 61 Stat. 136), was heard at Detroit , Michigan , on August 13,
1959, pursuant to due notice and with all parties represented by counsel. The
complaint , issued on June 29, 1959, by the General Counsel of the National Labor
Relations Board and based on charges duly filed and served, alleged in substance
that Respondent had engaged in unfair labor practices proscribed by Section 8(b) (2)
and (1 ) (A) of the Act by entering into contracts in July 1956 and July 1958 with the
Frank Jaworski Sausage Company ( herein called the Company ) which contained
illegal union -security provisions ( i.e., requiring application for union membership
by new employees within 5 days after employment) and, pursuant to said illegal
provisions , by causing the Company to make deductions from the wages of employees,
and pay to Respondent , union dues, and assessments.
Respondent answered , admitting that the contracts contained the alleged illegal
provisions but denying their illegality and denying that Respondent had maintained
the said provisions in effect Admitting also the deduction of membership dues,
Respondent pleaded that the deductions were made pursuant to written authoriza-
tions of the employees . Respondent also pleaded that its officers and agents were
unaware that the contract provision required union membership after 5 days, that
LOCAL 569, UNITED PACKINGHOUSE WORKERS, ETC. 873
they assumed and understood that membership was required only after 30 days
of employment, that Respondent and Company acted on the basis of that assumption
and understanding, and that the contract would have been subject to judicial reforma-
tion on appropriate legal proceedings to conform to the mutual understanding and
the practice of the parties. The answer also averred that on March 5, 1959, Re-
spondent and Company executed a stipulation by which the provisions under attack
were removed from the contract.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS; RESPONDENT AS A LABOR ORGANIZATION
I find on stipulated facts and on admissions in the answer that the Company is
engaged in commerce within the meaning of the Act (i.e., annual extrastate pur-
chases and incoming shipments in excess of $50,000 and annual retail sales in
excess of $500,000) and that Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
Respondent has since about 1951, represented all the salesgirls (numbering from
50 to 60) in the Company's 16-odd retail stores and markets. On September 4,
1956, and on July 31, 1958, Respondent and the Company entered into contracts
which gave the Company the unlimited right to hire new employees including pro-
bationary employees, provided that within 5 days such employees applied for union
membership and provided membership was accepted by the Union. The contracts
also provided that upon 2 weeks' notice in writing by the Union, the Company
agreed to dispense with the services of any employees covered by the agreement
who were not in good standing with the Union, and it provided further that the
Company would check off union dues, initiation fees, and assessments on the written
authorizations of employees and remit same to the Union. Substantially similar
provisions were contained in earlier contracts executed in 1952 and 1954.
The union-security clause above plainly exceeded the permissible limits fixed by
the provisos to Section 8(a)(3) of the Act, and Respondent must be found to have
violated Section 8(b) (2) and (1) (A) by entering into and maintaining the contract,
Broderick Wood Products Company, 118 NLRB 38, 53-55; Imperial Wire Company,
Inc., 118 NLRB 775, 777; Argo Steel Construction Co., 122 NLRB 1077; New
York State Employers Association, Inc., et al., 93 NLRB 127, 128-129, unless the
various matters which relies upon constitute a legal defense. Those matters relate
mainly to contentions that the union-security provisions did not actually state the
actual content of the agreement nor conform to the practice and mutual understand-
ing of the parties, which was not to require union membership or to check off union
dues earlier than 30 days after employment.
Though, as will be seen, the practice was proved to be as pleaded and claimed,
there was no evidence that the union-security provisions were mistakenly included
in the contract, as in Monolith Portland Cement Company, 94 NLRB 1358, 1361-
1362, nor any that there was any such mutual mistake as would entitle Respondent to
reformation in a court of equity. Imperial Wire Company, supra, 118 NLRB at
page 777. Indeed, Respondent offered no testimony by any of the signatories to the
contract on either side, and none by any of the negotiators on the Company side.
In fact, the only testimony concerning the negotiation of the contract was given
by Donald Hankins, president of the Local, to the effect that so far as he knew
there had been no negotiations concerning the union-security clause during the 7
years of his union membership, but that the old clause was simply brought forward
into each new contract without negotiation.
As previously noted, the evidence did establish Respondent's claim as to the manner
in which the union-security provisions were applied and enforced among the em-
ployees. Mary Swiatlowski, bookkeeper for the Company, testified for the General
Counsel that she did all the hiring, procured all the checkoff authorizations, and
made all the deductions, and that pursuant to company policy and to her under-
standing of the contract provisions, her practice was to send out authorization cards
for signature only after new employees had served their probationary periods of 30
days. She testified further that the Union in no case requested her to send out
authorization cards prior to 30 days of employment.
Swiatlowski also testified that after the execution of the contract, which had
been drawn up and presented by Respondent for signature, she distributed some
50 to 60 copies, also furnished by Respondent, among the employees in the Com-
pany's various stores. The employees were thus put on notice of the existence of
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union-security provisions. Knowledge by Company and Union is more ob-
viously to be legally presumed, despite testimony disclaiming awareness, which I
discredit and reject as incredible. See N.L.R.B. v. Howell Chevrolet Company,
204 F. 2d 79, 86 (C.A. 9), affd. 346 U.S. 482.
Swiatlowski testified further that even after she learned in February 1959, that
the 5-day clause was under attack she nevertheless deducted union dues and initia-
tion fees for February, March, and April, and remitted to the Union. Indeed,
the deduction of the March and April dues was made after a stipulation, entered
into on March 5, by which Respondent and Company agreed that the union-shop
clause of the contract should become inoperative and of no effect. Swiatlowski
testified, however, that she sent out no authorization cards to any employees after
March 6, 1959.
Both Hankins and John Troutman, Respondent's secretary-treasurer, testified that
their understanding of the contract requirement was that employees could be asked
to join the Union only after 30 days of employment and that checkoff authoriza-
tions similarly would be procured only after 30 days. They testified further that
the Union never requested the Company to require union membership earlier than
30 days after employment and never received payment for dues for any periods
prior to 30 days of employment. Hankins admitted, however, that copies of the
stipulation of March 5 were not furnished to the employees, and that so far as they
knew the stipulation never existed.
As found above, the evidence failed to bring Respondent's defenses within the
holding of the Monolith case, supra. There remains the question whether the mere
existence in the contract of the illegal clauses will constitute a violation of the Act
where the evidence showed the clause was not utilized or enforced. Of prime
importance is the fact that though new employees were supplied with copies of the
contract, they were not informed that the illegal clause was not to be used or
followed. Broderick Wood Products Company, supra, at p. 54. Indeed, the em-
ployees were not so informed even after the parties themselves stipulated that the
clauses should become inoperative. The fact is, then, that to this day the contract
language stands as a caveat to the employees. Id. Thus the mere execution and
maintenance of the clause under such circumstances constituted a violation of
Section 8(b) (2) and (1) (A) of the Act. Id., and see Carty Heating Corporation,
et al., 117 NLRB 1417, where the Board pointed out that it had "consistently held
that the mere inclusion of discriminatory provisions in a contract, whether or not
such provisions have been enforced, is also a violation of Section 8(a)(3) and
8(b)(2), as inherent in such discriminatory provisions is the tendency to encourage
membership in a union in violation of the Act." [Emphasis supplied.]
It is also concluded and found, for the reasons stated in Broderick Wood Products
Company, supra, at p. 60, that by causing the Company to check off union dues and
fees under the coercive force of the unlawful security clause, Respondent also violated
Section 8(b)(2) and (1) (A) of the Act. See also Masters-Lake Success, Inc., 124
NLRB 580.
Upon the basis of the above findings of fact and upon the entire record in the
case I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
2. By executing and maintaining a collective-bargaining agreement with Frank
Jaworski Sausage Company which contained unlawful union-security provisions and
by causing said Company to deduct from the wages of its employees dues and
assessments under said contract provisions, Respondent has restrained and coerced
employees of said Company in the exercise of their rights guaranteed in Section 7
of the Act, and has thereby engaged in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
3. By said conduct Respondent also caused and attempted to cause said Company
to discriminate against its employees in violation of Section 8(a)(3) of the Act,
thereby engaging in unfair labor practices within the meaning of Section 8(b) (2) of
the Act.
4. The aforesaid unfair labor practices having occurred in connection with the
operation of the Company's business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and substantially affect commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
`JACKSON'S PARTY SERVICE 875
action of the type conventionally ordered in such cases , which I find necessary
to remedy and remove the effects of the unfair labor practices and to effectuate the
policies of the Act. See e.g., Broderick Wood Products Company, supra.
The General Counsel seeks application of the Brown-Olds remedy , 1. S. Brown-
E. F. Olds Plumbing & Heating Corporation ( United Association of Journeymen
etc., 115 NLRB 594, i.e., the reimbursement of all dues and fees collected from
employees under the illegal clause . Although the evidence showed that no checkoff
of dues was made until after 30 days of employment , the Board in Local 138,
International Union of Operating Engineers, AFL-CIO, et al. (Nassau and Suffolk
Contractors' Association), 123 NLRB 1393, overruled its decisions in Farnsworth
and Chambers 122 NLRB 300 and Rochester Davis-Fetch Corporation, 122 NLRB
269, to the extent that those decisions held that proof of actual exaction of moneys
from employees under an unlawful contract is required to warrant the remedy of
reimbursement , and stated its present rule to be as follows:
[T]he existence of an unlawful contract is sufficient in and of itself to estab-
lish the element of coercion in the payment of moneys by employees pursuant
to the requirements of such a contract . Accordingly, the above remedy is
applicable to all closed-shop and exclusive hiring-hall agreements , which do not
provide the safeguards set forth in the Mountain Pacific decision (119 NLRB
883, 893 ) whether or not proof of actual exaction of payments is established.
As the Board has elsewhere asserted that application of the Brown-Olds remedy
"lies within [ its] exclusive jurisdiction ," Gay Engineering Corporation , 124 NLRB
451, and as it is speculative to predict what considerations of equity and justice
may appeal to it ( see e .g. Morrison-Knudsen Company , Inc., et al., d/b/a Robinson
Bay Lock Constructors, 123 NLRB 12, and the Intermediate Report in that case;
and see the Intermediate Report in The Ingalls Steel Construction Co., 126 NLRB
584, I shall recommend the customary Brown-Olds remedy for the period since
July 27, 1958.
[Recommendations omitted from publication.]
James D. Jackson d/b/a Jackson 's Party Service and Retail
Food Clerks Union, Local 870. Case No. AO-5. February 25,
1960
ADVISORY OPINION
A petition has been filed by James D. Jackson, doing business as
Jackson's Party Service, herein called the Employer, pursuant to Sec-
tion 102.98 of the Board's Rules and Regulations, praying for an ad-
visory opinion by the Board as to whether it would assert jurisdiction
over the operations of the Employer on the basis of its current juris-
dictional standards. It appears from said petition that :
1. The Employer is engaged in the business of "retail sale of inter-
state liquors, foods, and tobaccos." His place of business is not given.
"In every year involved in the State Court proceeding [described in
paragraph 2 herein], [the Employer] has done business in excess of
$500,000."
2. Retail Food Clerks Union, Local 870, alleged to be "a corpora-
tion," herein called the Union, has brought an action in the Alameda
County Superior Court, State of California, which has been docketed
as No. 302927. The defendant in said action is not given. Said action
is alleged to be "a petition for an order directing that arbitration
proceed."
126 NLRB No. 101.