Milton Bradley Co.

National Labor Relations Board - Board Decisions

Aug 27, 1973

205 N.L.R.B. 1009 (N.L.R.B. 1973)

PLAYSKOOL, INC.
Playskool, Inc., a Division of Milton Bradley Company
and United Furniture Workers of America, AFL-
CIO and Neomi Dominicci
The Retail , Wholesale and Department Store Union,
AFL-CIO, and Chicago Joint Board , Retail, Whole-
sale and Department Store Union , AFL-CIO and
United Furniture Workers of America, AFL-CIO.
Cases 13-CA-9186,13-CA-9205, and 13-CB-2988
August 27, 1973
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On February 25, 1972, the National Labor Rela-
tions Board issued its Decision and Order I in this
proceeding. Contrary to the Trial Examiner, the
Board found and remedied a violation of Section
8(a)(2) predicated on Playskool's recognition of the
Retail, Wholesale and Department Store Union
(RWDSU) at several of Playskool's Chicago area fa-
cilities at a time when the United Furniture Workers
of America was engaged in organizational activities
among employees at the same facilities. In reaching
this conclusion, the Board, relying on the doctrine
first set forth in Midwest Piping & Supply Co., Inc., 63
NLRB 1060, found that a question concerning repre-
sentation existed at the time Playskool recognized
RWDSU and that the subsequent investigation and
resolution of that question was not attended by ap-
propriate safeguards. In addition to finding that, in
these circumstances, Playskool violated Section
8(a)(2) and (1) by recognizing and bargaining with
RWDSU, the Board found that RWDSU violated
Section 8(b)(1)(A) by accepting exclusive recognition
and entering into a collective-bargaining agreement
with Playskool. Finally, the Board found that
Playskool's termination of employee Rosa's employ-
ment, occasioned by its insistence that she sign an
authorization or checkoff card for RWDSU, violated
Section 8(a)(3) and (1) of the Act.
Thereafter, on March 16, 1973, the United States
Court of Appeals for the Seventh Circuit issued a
decision 2 denying enforcement of the Board's Order.
In denying enforcement, the court indicated its agree-
ment with those judicial decisions 3 that refuse to find
a violation of the Midwest Piping doctrine when one
of two contending unions has made a demonstration
1195 NLRB 560
z 477 F 2d 66
3 Citing N L R B v Peter Paul, Inc, 467 F 2d 700 (C A 9, 1972), Modine
Manufacturing Company v N L R B, 453 F 2d 292 (C A 8, 1971), American
Bread Company v. N L R.B, 411 F.2d 147 (C A 6, 1969), Iowa Beef Packers,
Inc v N L R B, 331 F 2d 176 (C A 8, 1964), and others
1009
of majority support among unrepresented employees.
Furthermore , on both legal and evidentiary grounds
the court disagreed with the Board 's contention that,
even assuming the correctness of the above -cited judi-
cial view , the evidence failed to show that RWDSU
in fact enjoyed the support of a majority of
Playskool's employees . The court also rejected the
Board 's argument that, even assuming RWDSU pos-
sessed a card majority prior to the date it was recog-
nized by Playskool , such recognition was invalid
because of Playskool 's demonstrated partiality to-
ward RWDSU and the deception Playskool practiced
upon the United Furniture Workers .4
By amendment to its decision dated April 25, 1973,
the court remanded the case for consideration of
whether Playskool violated the proviso to Section
8(a)(3) by not allowing newly hired employees a 30-
day period in which to join RWDSU , a question
which the court stated the Board 's original Decision
did not reach.
The Board , having accepted the remand, re-
spectfully recognizes the above -mentioned court
opinion as binding upon us for the purpose of decid-
ing this case.
On June 21 , 1973, all parties were requested to file
with the Board statements of position with respect to
whether Respondent Playskool violated the proviso to
Section 8(a)(3) of the Act by not allowing newly hired
employees a 30-day period in which to join RWDSU.
Respondent filed a statement of position in which
it contended that the Trial Examiner 's finding that
Playskool violated the Act by requiring newly hired
employees to sign membership and checkoff cards
prior to the expiration of the 30-day statutory period
was not supported by the record evidence . Respon-
dent also contended that the record evidence contra-
dicted the Trial Examiner 's finding that Playskool in
fact deducted dues and initiation fees within the first
30 days of employment pursuant to checkoff cards
signed during the hiring procedure.
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.
Although the Board in its original Decision found
merit in the General Counsel 's exceptions with respect
to the Trial Examiner 's failure to find 8 (a)(2) and (1)
violations predicated on the Midwest Piping doctrine,
the Board otherwise adopted the Trial Examiner's
findings , conclusions, and his recommended Order to
" In a dissenting opinion, Judge Fairchild reasoned that Playskool' s failure
to inform the Illinois Conciliation Service of the continuing interest of and
support for the United Furniture Workers, under the circumstances, must
have been purposeful This, combined with Playskool's other conduct, per-
suaded Judge Fairchild that Playskool "unfairly contributed to and could not
rely upon the attainment by the Retail Union of apparent majority status "
205 NLRB No. 165
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extent consistent with our Decision therein. Thus,
the Board in fact adopted that portion of the Trial
Examiner's Decision and recommended Order in
which he found and remedied Playskool's violation of
Section 8(a)(1),(2), and (3) by its conduct in informing
prospective or newly hired employees that they were
required immediately to join RWDSU and in solicit-
ing the execution of RWDSU membership or dues
checkoff or authorization cards prior to the expiration
of the statutory 30-day period.'
We have considered the record as a whole, as well
as the brief submitted by Playskool, and have decid-
ed, with one modification, to reaffirm our earlier De-
cision with respect to the above-described conduct.
Although the Trial Examiner found that Playskool
had in fact deducted dues and initiation fees during
the first 30 days of employment, the record evidence
does not sustain his finding. Playskool's personnel
director testified that no cards were forwarded to the
payroll department until 30 days after hire and the
General Counsel offered no evidence or testimony to
the contrary. Whether or not deductions were made
during the initial 30-day period following hire is, con-
sequently, a matter that may be determined during
the compliance stage of this proceeding. We note that
the lack of record evidence indicating that Playskool
actually deducted dues or initiation fees within the
statutory period does not in any way alter the illegali-
ty of its conduct in soliciting the signing of cards by
prospective or newly hired employees.
THE REMEDY
Having found that Respondent Playskool has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(3), (2), and (1) of the Act by engaging in
practices whereby prospective or newly hired employ-
ees are required to execute union membership or
dues-checkoff authorization cards prior to the expira-
tion of the statutory 30-day period, we shall order that
it cease and desist therefrom.
We shall also order that any membership or dues-
checkoff authorization cards unlawfully obtained
from employees prior to the 30-day statutory period
are not to be honored in the future. If any deductions
were made pursuant to dues-checkoff authorizations
unlawfully obtained from employees prior to the 30-
day statutory period, we shall order Respondent
Playskool to reimburse the employees from whom
such dues were deducted for that first month. If there
5 With respect to this finding, we note the testimony of Playskool 's person-
nel manager at one of the three facilities involved herein that he distributed
cards to newly hired employees and toed to obtain their signatures , as well
as the testimony of Playskool's personnel director that signing the card was
a condition of employment
are any employees who paid dues or initiation fees
who worked less than 30 days, Respondent Playskool
shall reimburse such employees for the dues or initia-
tion fee so deducted.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Play-
skool, Inc., a Division of Milton Bradley Company,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Contributing support to the Retail, Wholesale
and Department Store Union, AFL-CIO, and Chica-
go Joint Board, Retail, Wholesale and Department
Store Union, AFL-CIO, or any other labor organiza-
tion, by its practice of informing prospective or newly
hired employees of the requirement that employees
mustjoin the Union immediately and furnishing pros-
pective employees with applications for membership
cards and initiation fee and dues-checkoff authoriza-
tions.
(b) Requiring prospective or newly hired employ-
ees to execute membership or dues-checkoff authori-
zation cards for the aforementioned Union, or any
other labor organization, prior to the expiration of the
30-day grace period provided for in Section 8(a)(3) of
the Act.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the right to self-organization, to form labor organi-
zations, to join or assist the aforesaid Union, or any
other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion as guaranteed in Section 7 of the Act, and to
refrain from any and all such activities, except to the
extent that such right may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment, as authorized in Section
8(a)(3) of the Act as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Reimburse all employees for money illegally
exacted from them in the manner and to the extent set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to
6 Interest at the rate of 6 percent per annum shall be added to such
initiation fees , dues, or other moneys so checked off, to be computed in the
manner set forth in Seafarers International Union of North America, Great
Lakes District, AFL-CIO, 138 NLRB 1142, In 2
PLAYSKOOL, INC.
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to determine the amount of
money, if any, illegally exacted from the employees
involved.
(c) Post at its plants in Chicago, Illinois, and its
warehouse in Des Plaines, Illinois, copies of the at-
tached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director
for Region 13, after being duly signed by its represen-
tative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
7 In the event that 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
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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT contribute support to the Retail,
Wholesale and Department Store Union, AFL-
CIO, and Chicago Joint Board, Retail, Whole-
sale and Department Store Union, AFL-CIO, or
any other labor organization, by the practice of
informing prospective or newly hired employees
of the requirement that employees must join the
Union immediately and furnishing prospective
employees with applications for membership
cards and initiation fees and dues-checkoff au-
1011
thorizations prior to the 30-day statutory grace
period following employment.
WE WILL NOT require prospective or newly hired
employees to execute membership or dues-
checkoff authorization cards for the aforemen-
tioned Union, or any other labor organization,
prior to the expiration of the 30-day grace period
provided for in Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the right to self-organization, to
form labor organizations, to join or assist the
aforesaid Union or any other labor organization,
to bargain collectively through representatives of
their own choosing, and to engage in other con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, and to refrain
from any and all such activities, except to the
extent that such right may be affected by an
agreement requiring membership in a labor orga-
nization as a condition of employment, as au-
thorized in Section 8(a)(3) of the Act as modified
by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL reimburse all employees for money
illegally exacted from them for dues or initiation
fees.
Dated By
PLAYSKOOL, INC., A DIVISION
OF MILTON BRADLEY COM-
PANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , Room 881 , Everett McKinley Dirksen
Building, 219 South Dearborn Street , Chicago, Illi-
nois 60604 , Telephone 312-353-7572.