United Food And Commercial Workers Union, Local 115, United Food And Commercial Workers International Union, Afl-Cio

National Labor Relations Board - Board Decisions

Nov 22, 1985

277 N.L.R.B. 676 (N.L.R.B. 1985)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Food and Commercial Workers Union, Local
115, United Food and Commercial Workers
International Union , AFL-CIO and California
Meat "Company . Case 20-CB-6430
22 November 1985
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 9 September 1985 Administrative Law Judge
Frederick C. Herzog issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed exceptions and
a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings , findings, I and
conclusions and to adopt the recommended Order
as modified.
AMENDED CONCLUSIONS OF LAW
Renumber Conclusion of Law 5 as 6 and insert
the following as 5:
"5. By attempting to impose additional initiation
fees on financial core members Louis Bertolini,
Steve DeBenedetti, Richard Facciolo, and Henni
Kuflik, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A)
of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United Food and Commercial Workers
Union, Local 115, United Food and Commercial
Workers International Union, AFL-CIO, its offi-
cers, agents, and representatives, shall take the
action set forth in the Order as modified.
1. Renumber 1(c) as 1(d) and insert the following
as 1(c):
"(c) Attempting to impose additional initiation
fees on financial core members."
2. Substitute the attached notice for that of the
administrative law judge.
i The General Counsel has excepted to the judge's failure to conclude,
in accordance with his factual findings , that the Respondent's imposition
of additional initiation fees on financial core members constitutes an inde-
pendent violation of Sec 8(b)(1)(A) We find merit in the General Coun-
sel's exceptions and determine that the Respondent's imposition of such
fees is a violation of Sec 8(b)(1)(A) See Professional Engineers Local 151
(General Dynamics), 272 NLRB 1051 (1984) The recommended Order
and notice will be modified to reflect the finding of this violation
WE WILL NOT attempt to cause California Meat
Company to discharge or otherwise discriminate
against its employees in violation of Section 8(a)(3)
of the Act.
WE WILL NOT threaten employees with dis-
charge because they resigned their memberships
and for reasons other than their failure to tender
periodic dues and fees uniformly required as a con-
dition or retaining membership.
WE WILL NOT attempt to impose additional initi-
ation fees on financial core members in violation of
Section 8 (b)(1)(A) of the Act.
WE WILL NOT in any like or related manner re-
strain or coerce employees of California Meat
Company in the exercise of rights guaranteed to
them by Section 7 of the Act.
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 115, FOOD
AND COMMERCIAL WORKERS INTER-
NATIONAL UNION, AFL-CIO
Christine Rails, Esq., and Carmen Plaza de Jennings, Esq.,
for the General Counsel.
David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Re-
spondent.
DECISION
FREDERICK C. HERZOG, Administrative Law Judge.
This matter was tried before me in San Francisco, Cali-
fornia, on 30 April 1985.1 The charge was filed on 24
December by the California Meat Company (the Em-
ployer). The complaint issued on 28 January 1985 against
the United Food and Commercial Workers Union, Local
115, United Food and Commercial Workers International
Union, AFL-CIO (the Respondent), alleging that the
Respondent violated Section 8(b)(1)(A) and Section
8(b)(2) of the National Labor Relations Act (Act)2 by
i All dates hereafter shall refer to the calendar year 1984 unless stated
otherwise
2 See 29 U S C § 151 et seq, where it is stated that it shall be an unfair
labor practice under Sec. 8(b)(1)(A) for a labor organization or its agents
(1) to restrain or coerce (a) employees in the exercise of the rights guar-
anteed in Sec 7 - "Provided , That this paragraph shall not impair the right
of a labor organization to prescribe its own rules with respect to the ac-
quisition or retention of membership therein " Sec 8(b)(2) states that it
shall be an unfair labor practice for a labor organization or its agents to
cause or attempt to cause an employer to discriminate against an employ-
ee in violation of subsection (a)(3) or to discriminate against an employee
with respect to whom membership in such organization has been denied
or terminated on some ground other than his failure to tender the period-
Continued
277 NLRB No. 83
FOOD & COMMERCIAL WORKERS LOCAL 115 (CALIFORNIA MEAT)
imposing an initiation fee on certain employees and by
attempting to cause the employer to discharge employ-
ees. At the trial, all parties were afforded the right to
participate , to examine and cross-examine witnesses, and
to produce evidence in support of their respective posi-
tions. In addition, the parties were afforded the right to
file briefs and oral argument at the conclusion of the
trial.
Based on the record thus compiled, plus my consider-
ation of the briefs filed by the General Counsel and
counsel for the Respondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
At the trial the Respondent amended its answer to
admit the complaint 's allegations that at all times materi-
al herein, the Employer, a California corporation with an
office and place of business in San Francisco, California,
has been engaged in the nonretail distribution of meats,
and during the calendar year ending 31 December the
Employer, in the course and conduct of its business oper-
ations, purchased and received at its San Francisco facili-
ty products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Califor-
nia,
On the basis of these admitted facts, I find that the
Employer is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Respondent is alleged by the complaint, and ad-
mitted by Respondent's answer, to have been, at all times
material herein , a labor organization within the meaning
of Section 2(5) of the Act. I so find and conclude
IV. THE UNFAIR LABOR PRACTICES
A. Facts
The Employer and the Respondent have a long collec-
tive-bargaining history, and have been party to succes-
sive collective-bargaining agreements. As of September
their current collective-bargaining agreement had a valid
union-security provision in effect which required em-
ployees of the Employer to become members of the Re-
spondent.
Four of the Employer's employees,3 who previously
maintained membership in the Respondent, chose to
resign from the Respondent. Each did so by means of
letters posted on various dates between 28 August and 26
September. It is undisputed that each such letter was
timely received and accepted by the Respondent and
is dues and the initiation fees uniformly required as a condition of acquir-
ing or retaining membership. Sec 7 gives employees "the right to self-
organization, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and the right to refrain from any or
all suLh activities
Louyis Bertolini, Steve DeBenedetti, Richard Facciola, and Henri
Kutik
677
that none of the four employees were delinquent in pay-
ments due the Respondent prior to their respective resig-
nations.
Thereafter three employees continued to make month-
ly dues payments by means of payroll deductions, while
the fourth attended to his payments personally by mail.
On 19 September the Respondent 's business represent-
ative, Robert Angeli, spoke with Joseph Bacciocco, one
of the Employer's owners. Angela told ]3acciocco to dis-
charge employee Kuflik because she had resigned from
the Respondent Union. The next day Angeli wrote to
Bacciocco , demanding the discharge of employees Kuflik
and DeBenedetti by 24 September. Neither was delin-
quent in any payment due the Respondent. The Employ-
er did not discharge either employee, however.
On 31 October, Angeli wrote to employees Kuflik and
Bertolini , informing them that the Respondent and the
Employer had entered into a new collective -bargaining
agreement 30 days previously , and that, under its union-
security clause they were obliged to be members of the
Respondent . Each was told to pay an initiation fee of 1
week's wages by 9 November or face discharge. There is
no evidence that either ever made the payment demand-
ed by the Respondent.
By letters dated 30 November and 12 December re-
spectively, employees Kuflik and Bertolini asserted to
the Respondent that it had made a mistake in requesting
payment of an initiation fee. They pointed out in their
letters that the Respondent's records should show that
they had already paid their initiation fees and paid all
their dues prior to their resignations . Each stated their
intent to continue to pay dues, but denied liability for an
additional initiation fee.
By similar letters dated 19 December, Angeli notified
each of the four employees that in order to avoid being
discharged, pursuant to the union-security clause in the
collective-bargaining agreement, they would be required
to pay an initiation fee equal to 1 week's 'wages. The Re-
spondent advised that it had returned to the Employer
the moneys paid by the Employer on behalf of the three
employees (Bertolini, DeBenedetti, and K uflik) who had
paid by payroll deductions for the months of November
and December, and further advised each of the three to
have the Employer return the money to them. No
moneys were returned to employee Facciola, who had
paid by check.
By letter dated 28 December, Angeli demanded that
the Employer discharge each of the four employees pur-
suant to the union-security clause.
B. Issue
The issue is whether or not the employees ' resigna-
tions from the Respondent should be construed as evi-
dencing an intent on their part to no longer pay dues to
the Respondent to prevent their attainment of status as
"financial core" members of the Respondent.
C. Discussion
Based on these essentially undisputed facts, I find that
each employee's proffered resignation was effective on
its receipt by the Respondent, and that no employee was
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
delinquent in any payment due the Respondent at that
time , I further find that each employee continued pay-
ment to the Respondent of all moneys due.
The Respondent's contention that the resignations
were silent concerning any intent to adopt "financial
core" status as "members" of the Respondent is factually
correct, but does not, in my opinion, lead to the further
conclusion that the employees intended to sever all as-
pects of their relationship with the Respondent.
First of all, the employees never resigned their em-
ployment with the Employer. They each continued
working within the bargaining unit, and made undeniable
efforts to continue payments to the Respondent of all fi-
nancial obligations.
The record is silent about any of the details of the
"contract"4 entered into by any employee concerning
checkoff, and there is no evidence that the Respondent's
constitution, bylaws, or other agreements or understand-
ings with employees necessarily lead the harsh result
sought by the Respondent. I infer that had the language
of the employees' authorization for checkoff of dues been
of the type preventing payment for anything other than
full union membership the Respondent would have pro-
duced evidence thereof at the trial. It did not.5 Accord-
ingly, I decline to find that when the employees resigned
their membership in the Respondent they also revoked
their checkoff authorizations, or otherwise evidence an
intent to sever all their relationships with the Respond-
ent. Further, whatever doubt may have existed in the
minds of the Respondent's officials concerning the em-
ployees' intentions expressed in their letters of resigna-
tion was quickly and easily resolved by the employees'
repeated tenders of all fees owed and written statements
of two employees that they wished to continue payments
as they came due.
In sum , it appears that the Respondent sought to avoid
having the four employees become "financial core"
members, as that term is used in such cases as Butchers'
Union Local No. 506 (Alpha Beta Co.), 265 NLRB 1290
(1982), and Professional Engineers Local 151 (General Dy-
namics), 272 NLRB 1051 (1984). I reject as specious the
contentions that the Respondent's intent was merely to
avoid violating the law with respect to receipt of pay-
ments by unions from employers. Instead, it seems more
reasonable to infer that the motivation behind the Re-
spondent's professed concern in this regard was to mask
its desire to retaliate against the employees because of
their resignations.
I conclude that the four employees did become "finan-
cial core" members of the Respondent and they each met
all financial obligation owed by them to the Respondent.
It follows, and I find, that by threatening each employee
that their discharge would be sought unless they paid ad-
ditional fees, and by actually seeking to cause the Em-
ployer to discharge these four employees, the Respond-
ent has violated Section 8(b)(1)(A) and Section 8(b)(2) of
the Act.
4 A valid checkoff authorization is considered a contract between an
employee and an employer Distillery Workers Union (Capitol-Husting
Co), 235 NLRB 1264 (1978)
e Compare Machinists Local 2045 (Eagle Signal), 268 NLRB 635, 638
(1984)
On the basis of the foregoing findings of fact, and on
the entire record in this proceeding, I make the follow-
ing
CONCLUSIONS OF LAW
1. California Meat Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent, United Food and Commercial
Workers Union, Local 115, United Food and Commer-
cial Workers International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By threatening Louis Bertolini, Steve DeBenedetti,
Richard Facciolo, and Henri Kuflik with discharge be-
cause they resigned from the Respondent and for reasons
other than their failure to tender periodic dues and fees
uniformly required as a condition of retaining member-
ship in the Respondent, the Respondent has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
4. By attempting to cause California Meat Company to
discriminate against Louis Bertolini, Steve DeBenedetti,
Richard Facciolo, and Henri Kuflik by seeking their dis-
charge in violation of Section 8(a)(3) of the Act, the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices, occurring in
connection with the operation of California Meat Com-
pany, 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 ob-
structing commerce and the free flow of commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
The Respondent, United Food and Commercial Work-
ers Union, Local 115, United Food and Commercial
Workers International Union, AFL-CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Attempting to cause California Meat Company to
discharge or otherwise discriminate against its employees
in violation of Section 8(a)(3) of the Act.
(b) Threatening employees with discharge because
they resigned from the Respondent and for reasons other
than their failure to tender periodic dues and fees uni-
formly required as a condition of retaining membership
in the Respondent.
(c) In any like or related manner restraining or coerc-
mg employees of California Meat Company in the exer-
cise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
6 All motions inconsistent with this recommended Order are denied
FOOD & COMMERCIAL WORKERS LOCAL 115 (CALIFORNIA MEAT) 679
(a) Post at its business office and all other places
copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Regional
Director for Region 20, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately on receipt and maintained
for 60 consecutive days in conspicuous places including
7 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 "
all places where notices to members are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Mail copies of the notice to the Regional Director
after the copies have been signed as provided above for
posting by California Meat Company, if it so agrees, at
places where notices to employees are customarily
posted
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.