Mode O'Day Co.

National Labor Relations Board - Board Decisions

Sep 26, 1988

290 N.L.R.B. 1234 (N.L.R.B. 1988)

1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mode O'Day Co. and Joanne D. Suffredini and Gen-
eral Warehousemen 's Union , Local 598, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO,' Party to the Contract . Case 31-CA-
15199
September 26, 1988
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 6, 1986, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding2 in which the Board adopted
the administrative law judge's findings that the Re-
spondent had violated Section 8(a)(2) and (1) of the
Act by requiring Charging Party-employee Joanne
D. Suffredini to execute a union-checkoff authori-
zation on her first day of employment. The Board
also adopted the judge's recommendation that the
Respondent be ordered to reimburse Suffredini,
with interest, all moneys deducted from her wages
during the first 30 days of her employment by
virtue of this invalid authorization. Thereafter, on
December 23, 1986, the Board notified the parties
that it had decided to reconsider its decision and
the case was returned to the Board.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has decided to reaffirm its finding
that the Respondent violated Section 8(a)(2) and
(1) by requiring Suffredini to execute the checkoff
form, but to reverse its earlier determination that
the Respondent must reimburse her for amounts
deducted from her pay as initiation fees pursuant to
that checkoff during the first 30 days of her em-
ployment. In so doing, we adhere to the long-es-
tablished remedial approach expressed in Campbell
Soup Co., 152 NLRB 1645 (1965), and do not rely
on General Instrument Corp., 262 NLRB 1178
(1982), cited by the judge.
In Campbell Soup, as in the instant case, the em-
ployer and the union were parties to an agreement
containing a lawful union-security clause requiring
employees to become union members after 30 days
of employment. The employer's practice was to
advise newly hired employees that union member-
ship was a condition of employment and to provide
them immediately with union membership forms
' On November 1, 1987, the Teamsters International Union was read-
nutted to the AFL-CIO Accordingly , the caption has been amended to
reflect that change
2 280 NLRB 253
and dues-checkoff authorizations. This resulted in-
variably in the employees promptly signing the
forms and the employer deducting initiation fees
and dues as of their date of hire. The Board found
that because this procedure unlawfully coerced em-
ployees to join the union and to make payments of
dues and initiation fees sooner than they were re-
quired to do under the union-security clause, em-
ployees were entitled to have those amounts de-
ducted as dues during the first 30 days refunded to
them. This is so because no dues properly were
owing during the 30-day grace period. However,
the Board also determined that any moneys deduct-
ed during the first 30 days that were attributed
toward the initiation fee did not have to be re-
turned to employees who worked beyond the
grace period and who would, therefore, have been
liable for payment of the initiation fee. Only those
individuals who did not work at least 30 days were
entitled to have the prematurely deducted initiation
fees refunded to them. This approach results in the
parties being placed in the posture they would
have been in had no unfair labor practices oc-
curred; that is, those employees who retained em-
ployment beyond the grace period and became sub-
ject to the union-security provision did not have
duly owed initiation fees returned to them; those
employees who worked fewer than 30 days and
never became liable for the initiation fee were re-
funded that money; and all employees who had
dues-an incidence of membership-deducted from
their wages during the 30-day grace period were
given back those moneys.3
The evidence in this case, as the judge fully sets
forth, shows that the Respondent coerced Suffre-
dini to sign a checkoff authorization on her first
day of work and to begin deducting installment
payments toward the union initiation fee with her
first paycheck. Over Suffredini's repeated protests,
the Respondent continued to deduct $25 from each
of her first 5 weeks' paychecks. Suffredini volun-
tarily left the Respondent's employ after approxi-
mately 6 weeks.4 It is undisputed that the entire
amount of these several deductions was applied
toward the Union's $200 initiation fee and none
was attributed to dues. Under the rule set forth in
Campbell Soup, we find that because Suffredini
worked beyond 30 days, albeit only a short time
thereafter, she became subject to the requirements
'Accord: Zidell Explorations, 175 NLRB 88'' (1969), Electrical Workers
IUE Local 60 (Westinghouse Electric), 180 NLRB 1062 (197C), Playskool,
Inc, 205 NLRB 1009 (1973), Machinists Local 1198 (Interstate Food), 278
NLRB 154 (1986)
4 There is no allegation or evidence that Suffredmi's leaving her job
was related in any way to these deductions or otherwise resulted from
unlawful conduct by the Respondent
290 NLRB No. 162
MODE O'DAY CO
of the lawful union-security clause, including the
payment of an initiation fee Accordingly , contrary
to the judge and the remedial scheme of General
Instrument on which he relled ,5 we will not require
the Respondent to reimburse Suffredin any part of
the moneys withheld from her wages 6 We shall
issue a new order in lieu of the one previously en-
tered in this proceeding
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Mode O'Day Company, Division of
Wickes Companies, Inc, Burbank , California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified
1 Substitute the following for paragraph 1(b)
"(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act "
2 Delete paragraph 2(a) and reletter the subse-
quent paragraphs accordingly
3 Substitute the attached notice for that of the
administrative law judge
MEMBER JOHANSEN, dissenting in part
I agree with my colleagues that the Respondent
violated Section 8(a)(2) and (1) by requiring Charg-
ing Party Joanne D Suffredim to execute a union-
5 In General Instrument, the Board ordered reimbursement of dues and
initiation fees that had been deducted unlawfully However, the prece-
dent cited in that case for this remedy involved the unlawful deduction
of dues only Thus, to the extent that General Instrument can be read to
authorize the reimbursement of unlawfully deducted initiation fees to em-
ployees who remain employed beyond the grace period , it is not support-
ed by precedent and is at odds with the Board's well-recognized and ac-
cepted nonpunitive, make-whole status quo ante remedial policy
a Had the first 30 days' deductions been apportioned between initiation
fee and dues , that part attributable to the dues obligation would have
properly been refunded to the Charging Party See Interstate Food, supra
at fn 1
Despite our dissenting colleague 's assertions to the contrary, his partial
reimbursement formula not only fails to follow Campbell Soup, but is tan-
tamount to a repudiation of its essential underlying principle, that is, once
employees work beyond the grace period provided for by the umon-secu-
nty agreement , they are liable for the full amount of the designated initi-
ation fee This is so irrespective of any installment payment plan that
might exist Periodic payments are merely a matter of convenience and
serve to lessen the impact of full payment from one paycheck early in
employment The fact remains that once the 30 days is up the initiation
fee is payable and the employee subject to that valid umon-secunty re-
quirement is not entitled to a refund of any part of that fee even if it was
withheld prior to its having become due This essentially was the situa-
tion in Campbell Soup and is the situation here, and the Respondent's re-
neging on its "assurances" to Suffredim that it would not make any de-
ductions for the initiation fee during the first 30 days is relevant only to
the question whether a violation occurred and not to the remedial issue
addressed in Campbell Soup In both cases it was improper for any deduc-
tion to be made prior to the 30-day grace period, but in both cases, once
the 30-day grace period had passed , the entire amount was owed without
regard to what had gone before With respect to liability for the initiation
fee, the employee was in the same position he or she would be in even if
there had been no violation
1235
checkoff authorization on her first day of employ-
ment Under the particular facts of this case, how-
ever, I cannot agree with the majority that the Re-
spondent need not reimburse Suffredim for any mi-
tiation fees it deducted from her wages
The majority finds that Suffredini is not entitled
to reimbursement of initiation fees that the Re-
spondent prematurely withheld from her paycheck
because, under Campbell Soup Co, 152 NLRB 1645
(1965), and its progeny, Suffredim became liable
for the fees once she had worked more than 30
days Thus, according to the majority , by denying
her reimbursement, they placed Suffredim "in the
posture [she] would have been in had no unfair
labor practices occurred " I disagree
The Respondent informed Suffredin orally and
in writing, in her interview for employment and on
her first day of work, that she was required to
belong to the Union, that there was a $200 union
initiation fee payable by $25 weekly deductions
from her paycheck, and that no deductions would
begin for 30 days Notwithstanding these represen-
tations, however, the Respondent immediately de-
ducted $25 per week from the Suffredim's wages
and continued to do so for 5 weeks until Suffredim
informed the Respondent that she was resigning
and asked that the deductions cease Suffredim
thereafter quit the Respondent 's employ, some 6
weeks after her hire
Under these facts, it is clear that had Suffredin
not been coerced into prematurely signing the
union-checkoff authorization card, she would not
have had any moneys deducted from her paycheck
until her 31st day of employment, and fewer de-
ductions would have been made prior to her leav-
ing the Respondent 's employ On this basis, in
order to place Suffredini in the position she would
have been in but for the Respondent's unfair labor
practices, it is necessary to require the Respondent
to reimburse her any amount over and above that
which should have had deducted between her 31st
day of employment and her resignation In fashion-
ing this remedy , I do not reject Campbell Soup, on
which my colleagues rely, but find that its princi-
ples cannot be woodenly applied to deny reim-
bursement where, as here, initiation fees were pay-
able by periodic installments and the discriminatee
quits before the date when all installments would
have been paid
Contrary to my colleagues' assertions, the fact
that Suffredim was liable for the entire $200 initi-
ation fee on her 31st day of employment is not dis-
positive of the remedy issue in this case Although
Suffredim might have been required to tender the
entire initiation fee after 30 days in the Respond-
ent's employ , this was not the case The Respond-
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent repeatedly assured Suffredini that no moneys
would be deducted for 30 days, and then only in
$25 weekly installments . To restore the status quo
ante, Suffredini needs to be placed precisely in the
position she would have been in but for the Re-
spondent 's unlawful conduct . By remunerating Suf-
fredini for fees unlawfully extracted within the first
30 day, the status quo would be preserved.
Nor do I agree with the majority's claim that my
position eviscerates the principles of Campbell
Soup . As, admittedly , some of the prematurely
withheld initiation fees in Campbell Soup were peri-
odic payments , there was no evidence that, as here,
the employer provided assurances that periodic
payment would not begin for 30 days, or that dis-
criminatees who were not reimbursed quit before
the entire initiation fee was to be paid.
APPENDIX
NOTICE To EMPLOYEES
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 contribute support or assistance to
General Warehousemen 's Union, Local 598, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO, or any other labor organization , by encourag-
ing or requiring newly hired employees to sign
dues-checkoff authorizations in favor of that Union
as part of our employment procedures.
WE WILL NOT deduct from the wages of our em-
ployees union initiation fees and dues in favor of
the Union, or any other union, pursuant to any au-
thorization not freely and voluntarily given by the
employees in favor of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
MODE O'DAY COMPANY, DIVISION
OF WICKES COMPANIES, INC.