Simmons Co.

National Labor Relations Board - Board Decisions

Dec 29, 1964

150 N.L.R.B. 709 (N.L.R.B. 1964)

SIMMONS COMPANY 709
sary any person hired on or after July 10, 1963 ; and WE WILL make any such
applicant whole for any loss of pay suffered by reason of our refusal , if any, to
reinstate him within 5 days of such application.
ONEITA KNITTING MILLS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board 's Regional Office, 1831
Nissen Building , Winston-Salem , North Carolina, Telephone No. 724-8356 , if they
have any questions concerning this notice or compliance with its provisions.
Simmons Company and Mary L. Bernard
Local 185, Mattress , Spring & Bedding Workers' Union, AFL-
,CIO [Simmons Company ] and Mary L. Bernard . Cases Nos.
13-CA-5962 and 13-CB-1553. December 29, 1964
DECISION AND ORDER
On June 30, 1964, Trial Examiner C. W. Whittemore issued his
Trial Examiner's Decision in the above-entitled proceeding • finding
that Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Decision. Thereafter, Respondents filed exceptions to the
Trial Examiner's Decision and General Counsel filed cross-excep-
tions thereto together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel. [Chairman McCulloch and Mem-
bers Fanning and Brown].
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 Trial
Examiner's Decision, the exceptions, cross-exceptions, and briefs
and the entire record in the case, and finds merit in Respondent's
exceptions. Accordingly, the Board adopts the Trial Examiner's find-
ings, conclusions, and recommendations only insofar as they are con-
sistent herewith.
The facts are not materially in dispute and are set forth in detail
in the Trial Examiner's Decision. In brief, the Union and the Em-
ployer had maintained a contractual relationship since 1959, but none
of the contracts had required union membership as a condition of
employment. . However, the contract executed on July 24, 1962, con-
tained an "agency shop" provision under which any employee who
150 NLRB No. 61.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not wish to become a member of the Union would be required
as a condition of employment to pay to the Union an amount equal
to that paid by other employees who were members, limited to the
Union's regular initiation fees and dues. Under the terms of the
contract, this clause became effective; i.e., payments were to com-
mence, for existing employees on August 24, 1962, the 30th day
after the date of execution. -
Mary Bernard, the Charging Party, had joined the Union shortly
after her employment in 1961 and had executed a card authorizing
the Employer to deduct her dues from her pay. Her dues and fees
were deducted and were fully paid up as of February 5, 1962,
when she became ill and went on a leave of absence until_Septem-
ber 30, 1962. During her absence, no dues were deducted on her behalf
nor did she pay any money directly to the Union. Upon her return
to work the Employer resumed the deduction of her dues with the
exception of 2 weeks when she did not work because of a vacation
period and an illness.
Early in April 1963 Bernard received a "dues statement" from the
Union indicating that as of August- 31, 1962, she was in arrears
in the amount of $30. The Union's constitution did not provide for
any suspension of dues during a period of unemployment and it
appears that at least $29 of this debt was attributable to the dues
that had accrued during Bernard's illness. A similar statement was
received in July indicating a $31 debt as of March 31, 1963.,
In September 1963 Bernard was approached by a union steward
who referred her to the "agency shop" provision of the contract and
reminded her of the $31 debt. The union steward explained that
under the Union's policy Bernard could either pay the full amount
or a "reinstatement fee" of $15. Bernard said she would pay the
lesser fee but a short time later, after reviewing the "agency-shop"
provisions of the contract, she told the steward she would rather pay
the back dues. Bernard was subsequently approached on several
occasions by two officers of the Union who continued to remind her
of-her obligation to pay either her dues or the $15 reinstatement fee.
Although the Trial Examiner made no such finding, the officers testi-
fied without contradiction that they also, advised Bernard of her right
to leave the Union and pay the agency fee.' Bernard replied that
according to her calculations she only owed $5 and offered to pay
that amount.2
1 The initial agency fee was $15 plus a weekly charge of $1, the same as the Union's
initiation fee and dues.
2 Bernard appeared to have calculated this sum on the basis of owing $1 a week for.the
period extending from August 24, 1962, the date the agency clause went into effect, to
October 1, 1962, the date she returned to work and resumed paying her. dues by means
of the checkoff but did not include $2 in dues which may have accrued during the 2 weeks
she did not work subsequent to October 1, 1962
SIMMONS COMPANY 711
On October 18 the Employer's superintendent read to Bernard a
letter sent to the Employer by the Union advising that Bernard had
failed to assume either the dues obligation of a union member or the
alternate obligation provided in the agency clause of the contract.
The letter requested her discharge in accordance with the contract
in the event she did not make 'appropriate arrangements by Octo-
ber 23.' The superintendent told her that the Employer was bound by
the contract but that the matter would be settled if she were rein-
stated in the'Union 3 Bernard continued to refuse to pay either the
reinstatement fee, agency fee, or the dues arrearages but, when union
officers approached her about her decision, offered only $5 in full
settlement of the matter. On October 23 Bernard was terminated.
The Trial Examiner found that Bernard's termination resulted
from her failure to pay 'dues to the Union during a period preceding
the effective date of the "agency shop" contract and at a time when
she was under no obligation to maintain her membership as a condi-
tion of employment. He concluded that the Union was forcing the
employee to pay either the full arrearage or a $15 reinstatement fee,
and in seeking either amount, the Union was demanding as a
condition of employment the payment of "far' more than the effective
date of the agency shop contract permitted." He apparently rea-
soned that the Respondent Union was thereby conditioning employ-
ment on the payment of debts to the Union which she incurred
before August 24, 1962. The Trial Examiner therefore found that by
the discharge of Bernard both the Employer and the Union had
violated Section 8(a) (3) and (1) and 8(b) (1) (A) and (2) of the
Act, respectively. We do not agree.
It is clear that both Bernard and the Union viewed Bernard as
a member of the Union at all times. Bernard sought to remain in
good standing by tendering what she considered to be the' amount
due to accomplish that purpose-$5-although she was undeniably
not in good standing as of the effective date of either the contract
or the union-security clause under the established practices of the
Union applicable to all its members. The Union, on the other hand,
sought to have her achieve good standing by paying alternative
amounts which would have been imposed upon any delinquent
member who wished to achieve such standing. If Bernard desired
such status, we see nothing unlawful in requiring her to adopt one
or the other of the Union's usual methods of acquiring it. Indeed,
to find otherwise would be to impair the right of a labor organization
to prescribe its own rules with respect to the retention of membership,
contrary to the proviso to Section 8(b) (1) (A) of the Act.
3 The Employer admitted that it did not inquire of the Union as to the facts surround-
ing Bernard 's debt but was aware of the period of her delinquency.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, under the existing contract in this case Bernard had no
obligation to maintain her good standing. If, in'the, face, of this,
the Union had demanded only that she become or remain a member
and sought her discharge for failing to do so, we might well.find
that the action was unlawful. But it is undisputed that Bernard
was aware of her right to refrain from membership by paying the
agency shop fees and that she was given the third choice of com-
plying with that contractual provision. Under these circumstances,
it cannot be said that Bernard was denied membership in the' Union
for reasons other than her failure to tender the dues and fees uni-
formly required as a condition of acquiring or retaining membership
or that her discharge was demanded and accomplished in violation
of the Act. To hold that a violation had occurred under these circum-
stances would be to place it delinquent member in a far better posi-
tion than a nonmember and would permit such a delinquent member
to avoid the legal requirement, preserved by the statute,' that uni-
formly required dues and fees to be paid to maintain membership.
It is well settled that an employee may not be required to pay
back dues for a period when membership was not validly required
as a condition of employment. However, a Union may lawfully
condition employment upon the payment of a reinstatement fee
where a lawful union-security agreement exists,4 and the mere fact
that a union has looked to a prior period to determine whether an
employee is in good, standing does not per se render its conduct
unlawful.5 We believe this latter rule is dispositive of the issues
in this case. For the Union here clearly indicated its willingness
to abide by Bernard's wishes as to'whether or not to maintain her
membership, and it sought to impose no obligation upon her which
was not required of any other former member, delinquent member,
or nonmember, whichever Bernard deemed more advantageous to
herself.6
' Section 8 ( b) (1) (A) ; Food Machinery and Chemical Corporation, 99 NLRB 1430;
Plasterers ' Union Local No 77 Operative Plasterers' and Cement Masons' International
Association ( Piper & Greenhall, Inc.), 143 NLRB 765, Adel Precision Products , etc, 120
NLRB 1223 . In fact , in Food Machinery the Board found that it was not unlawful dis-
crimination to require payment of a reinstatement fee which was higher than the initia-
tion fee required of new applicants for membership.
6 See ; e g., Plasterers' Union Local No. 77 Operative Plasterers ' and Cement Masons'
International Association ( Piper & Greenhall , Inc ), supra
6 Contrary to the contention of the General Counsel , the decision in Spector Freight
System, Inc., 123 NLRB 43 , is inapplicable . The facts there are clearly distinguishable in
that the Union was found to be seeking to compel the payment of dues by a new employee
for a period prior to his being hired by the respondent company and continued employ-
ment was conditioned thereon. The Union was thus, in effect , requiring that the em-
ployee be a member in good standing prior to the time of his employment by the elimination
of any period of nonpayment of dues. Here , on the contrary, the obligation which was
imposed was one which arose only after the signing of the contract and the employee's
return to work , and it was the employee who asserted her union membership at all
times. The choice imposed was in fact not different from that which would have been
required of any new employee ; good standing would be achieved only as of the time of
payment without the absolute necessity of closing any gap in the period of nonpayment,
and her continued employment was conditioned only on her achieving any-status which
she desired and which would comport with the requirements of the contract.
SIMMONS COMPANY 713
In sum, Bernard's termination occurred not because she refused
to bow to unlawful demands imposed by the Union, but rather be-
cause she failed to exercise a choice which was lawfully required
under the contract. Bernard chose, instead, to try to retain for
herself the benefits of membership in the Union without also being
willing to accept the obligation that arose by virtue of that mem-
bership. Under these circumstances, the Respondents did not violate
the Act by bringing about her discharge.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On October 24, 1963, the above-named individual filed a charge in Case No.
13-CA-5962 and also a charge in Case No. 13-CB-1553. The charges were duly
served upon the respective Respondents. On March 16, 1964, the General Counsel
of the National Labor Relations Board issued an order consolidating the two cases,
a complaint and a notice of hearing . On March 20 amendments to the complaint
were issued. Answers from the two Respondents were received on March 27, 1964.
The amended complaint alleges and the answers deny that the Respondent Company
has engaged in unfair labor practices in violation of Section 8(a)(1) and ( 3) of the
National Labor Relations Act, as amended, and that the Respondent Union has
engaged in unfair labor practices in violation of Section 8(b)(1)(A ) and (2) of the
Act. Pursuant to notice , a hearing was held in Chicago , Illinois, on May 19, 1964,
before Trial Examiner C. W. Whittemore.
At the hearing all parties were present and were afforded full opportunity to pre-
sent evidence pertinent to the issues , to argue orally , and to file briefs . Briefs have
been received from all parties.
Disposition of the joint motion by the Respondents to dismiss the complaint, upon
which ruling was reserved at the conclusion of the hearing , is made by the following
findings , conclusions , and recommendations.
Upon the record thus made, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
Simmons Company is a Delaware corporation, with principal office and place of
business in New York , New York. It is engaged in the manufacture and sale of
bedding and dual purpose furniture at various plants in the United States, including
Atlanta, Georgia; Columbus, Ohio; Dallas, Texas; Elizabeth, New Jersey; • Los
Angeles, California; and Munster , Indiana.
During the year preceding issuance of the complaint , at its Munster , Indiana, plant-
the one plant with which this proceeding is concerned-the Respondent manufac-
tured and sold products valued at more than $50,000 which were shipped directly
to places in the United States other than the State of Indiana.
The complaint alleges, the Respondent Union admits, the Respondent Company
does not deny, and it is here found that the Respondent Company is engaged in com-
merce within the meaning of the Act.
H. THE RESPONDENT UNION
Local 185, Mattress , Spring & Bedding Workers' Union , AFL-CIO, is a labor
organization admitting to membership employees of the Respondent Company at
its Munster plant.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
Stated briefly, the sole issue in this proceeding is whether the Charging Individual,
Mary L. Bernard , was unlawfully discharged on October 23, 1963, for alleged failure
to pay union dues or a reinstatement fee.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts relating to the discharge, as to which there is small dispute will be set
out below.
B. Relevant facts
(1) Mary Bernard was employed at this plant in January 1961 and except for a
leave of absence extending from early February to the last of September 1962, her
employment appears to have been continuous.
(2) A contractual relationship has existed between the two Respondents since
1959, covering a production and maintenance unit which included Bernard.
(3) None of the contracts, including the 3-year agreement executed in July 1962,
has been a "union shop" arrangement, requiring membership in the Union as a con-
dition of employment.
(4) The current contract, however, does include an "agency shop" provision which
requires, as a condition of continued employment, that employees in the unit pay the
Union an amount equal to that paid by union members-such payments being limited
to the Union's regular initiation fees and dues.'
(5) The current agreement was executed on July 24, 1962.
(6) Mary Bernard joined the Union shortly after her employment in 1961, and
executed a card, on February 3, 1961, authorizing the employer to deduct her union
dues from her pay. (Although by agreement such dues were checked off by the
Company, as noted heretofore the agreement then did not then require membership
as a condition of employment.)
(7) An extract from company records, in evidence, shows and establishes that up
to February 5, 1962, her initiation fees and dues were fully deducted and presumably
paid to the Union.
(8) As noted above, Bernard became ill on that date, and was on leave of absence
until September 30, 1962.
(9) During that period no dues were deducted for her, and according to her own
testimony she paid none directly to the Union.
(10) Upon her return to work the Company resumed checking off $1 per week
for her dues and continued to do so thereafter, with the exception of 1 week in
January 1963. during a vacation period and 1 week in March 1963, when she was
ill, according to notations on the company records. This continued until her dis-
charge on October 23, 1963.
(11) At no time during her employment was Bernard notified that her member-
ship in the Union was suspended or terminated.
(12) Early in April 1963, Bernard received a dues statement from the Union,
which is in evidence, purporting to show her indebtedness to the Union as of Au-
gust 31, 1962, to be $30.
1 The entire provision reads as follows:
SEC. 1.10-Agency Shop
(a) Membership in the Union is not compulsory. Employees have the right to
join or refrain from joining the Union Neither party shall exert any pressure on or
discriminate against any employee with regard to such matters.
(b) The Union is required, under this Agreement,- to represent all of the employees
in the bargaining unit fairly and equally without regard to whether or not an em-
ployee is a member of the Union. The terms of this Agreement have been made
for all employees in the bargaining unit and not only for members in the Union and
this Agreement has been executed by the Employer after it has satisfied itself that the
Union is the choice of a majority of the employees in the bargaining unit.
(c) In accordance with the policy set forth under subparagraphs (a) and (b)
in this Section, all employees shall, as a condition of continued employment, pay to
the Union, the employees' exclusive collective bargaining representative, an amount
of money equal to that paid by other employees in the bargaining unit who are mem-
bers of the Union, which shall be limited to an amount of money equal to the Union's,
regular and usual initiation fees, and its regular and usual dues. For existing em-
ployees, such payments shall commence thirty (30) days following the date of
execution of this Agreement and for new employees, the payments shall start
forty-five (45) days following the date of employment.
(d) The Union agrees to indemnify the Company and hold the Company harmless
from any final determination of liability to any employee by reason of the discharge
of such employee if such discharge was caused or effected by a request of the Union,
as provided for in the preceding paragraphs of this contract.
(e) This section is subject to applicable State and Federal Law and in the event
said provision is declared illegal for any reason, the remainder of the contract shall
remain in full force and effect.
SIMMONS COMPANY 715
(13) While the statement in evidence is not self-explanatory, the Trial Examiner
is in accord with General Counsel's reasonable inference to the effect that at least
$29 of the $30 claimed must be considered as the customary $1 dues accruing during
the period of her illness, when no dues were checked off or paid, from early February
until the effective date of the "agency shop" provision, which was August 24, 1962.
(14) The above-described statement was the first notice Bernard received of any
claimed delinquency.
(15) She was not approached by any union official concerning the claim of delin-
quency, nor does it appear that she took any action herself in protest.
(16) In mid-july 1963 she received another statement, purporting to show that
she owed the Union $31 as of March 31 and the same amount on June 25, 1963.
Again neither the Union nor she took any action concerning the statement, at least
for a considerable period after its receipt.
(17) On September 5, 1963, Union Steward Denton came to her at her work sta-
tion, read to her some portion of Section 1.10 of the existing contract and then
showed her a list of "delinquent members" which included her own name and an
amount owed of $31. Denton asked her what she intended to do, pay the back dues
or "reinstate," and told her that if she would "reinstate" she could "get by" by paying
only $15, instead of the $31. Bernard said she thought she would "reinstate," and
after making notation of this on the list Denton left her.
(18) After Denton left Bernard examined her copy of the existing agreement,
especially Section 1.10; then approached Denton and told her that she had changed
her mind, she would pay the "back dues." In her presence Denton altered to con-
form to this decision the previous notation on the list.
(19) According to the testimony of Allegretti, business representative of the
Respondent Union, at the time Bernard was sent her first notice of claimed "delin-
quency" the Union had a policy-which it apparently followed at all times material
herein, of permitting members who owed the Union more than $15 to cancel such
indebtedness by payment of a $15 "reinstatement fee." 2 The point clarifies what
Denton meant by suggesting to Bernard that she "reinstate" instead of paying the
full amount claimed as dues.
(20) After being approached by the steward, Bernard was thereafter solicited by
both Allegretti and the Local's president, Furgye. The latter came to her on Septem-
ber 19 and asked if she "intended to pay the back dues or reinstate." She referred
him to the contract's "agency shop" clause and told him she figured she owed only
$5, although at the time, according to the dues statement, she still owed $31.3
Furgye's reply was merely that she must "pay up or reinstate."
(21) The same official again approached her on October 2 and 10, each time tell-
ing her she would have to "pay up or reinstate." Each time she offered to pay $5,
which she said she believed was all she owed.
(22) Later on the latter date, Allegretti asked her whether she was going to pay
her "back dues" or "reinstate." He urged her to pay "just a couple dollars dues," to
show the other "members" that she was paying. He explained that "other members
had made the statement that they weren't going to pay unless Mary Bernard did."
The colloquy ended, it seems, when she countered that she thought it unfair to use
her name to "collect union dues."
(23) On October 17 Bernard received another "dues statement" from the Union,
purporting to show a "dues delinquency" of $31 both on June 30 and September 25.
(24) On October 18 Superintendent Bertling of the Respondent Company came
to her and read her the following letter, which had been sent by Allegretti to John W.
Buchen, "Central Division Labor Relations Manager" of the Respondent Company,
and dated October 16:
Re: Mary Louise Bernard Clock # 16-060
DEAR MR. BUCHEN: This is to advise you that the subject named has failed
and otherwise refuses to assume dues obligations required of Union members
or the alternate obligation as provided in (c) Section 1.10, Article I of the
agreement between us.
2 Counsel for the Union conceded "we will stipulate that there was a reinstatement-fee
of $15 which members could elect to pay rather than pay the entire amount of their
delinquency." He later added to this concesssion by stating that it covered "all times
material to this case."
3Bernard calculated her lesser indebtedness as follows : "The agency shop clause in
Section 1.10 of that contract went into effect 30 days thereafter which would be August 24,
1962. From then until my return to work October 1, 1962, was 5 weeks. That's how
I figured I owed $5."
716 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
We request, therefore, the employment of the subject named be terminated
effective not later than Wednesday, October 23, 1963 unless on or before said
date she shall make satisfactory arrangements with the writer to comply with
union membership requirements or the obligations outlined in Section 1.10(c),
Article I of our agreement.
The writer will advise you of such satisfactory arrangements . Failure to hear
from the writer shall be considered evidence of her pontinued refusal to perform
as provided under the terms of our agreement.
(25) After reading her the letter, the superintendent told her that "the Company
was bound by the contract," and suggested that if she "reinstated" the whole matter
would be settled . He further suggested that if she would do so he could tell Buchen
she had not "refused to assume" her "obligation."
•(26) Later the same day Furgye and other union officials urged her to "reinstate."
She told Furgye she would let him know the following Monday.
° (27) Not until the following Tuesday, however, did Furgye come to her and ask
what her decision was. She reached for her pocketbook and said she would offer
him $5, which was all she owed. Furgye said he would talk to Allegretti and see her
after work.
(28) After work that day, October 22, Furgye told her Allegretti would not accept
the offer as full payment, but if she would "reinstate" he could still "kill the letter."
She asked why she had been given a "deadline of October 23." He replied that by
the first of the year "everybody would be paid up or paying by that time, if not they
would fall into the agency shop clause of the contract and would not have any
voice or could not take any part in the Union."
(29) The next morning, October 23, both Bertling and Buchen came to her work
place. Buchen told her that unless she made "arrangements" with Allegretti during
the day, she would be "terminated as of three o'clock that day." He said he was
bound by Section 1.10 of the contract. She said that all she owed was $5 and that
was her final offer. Buchen told her that Allegretti would make the "final decision." 4
(30) Bernard maintained her position later that day, and was terminated.
(31) As a witness, Buchen admitted that Bernard's employment was terminated
pursuant to the Union's letter, above quoted. He further admitted that he made no
inquiry of the Union either as to how the "delinquency" was figured or what period
it was supposed to cover. He said he calculated that, from the company records of
amounts checked off weekly, "there was a delinquency of somewhere between $29
and $31," and that this amount was compiled by figuring the number of weeks when
no amount was checked off, including the weeks she was ill or on leave of absence,
beginning February 11, 1962, and including the pay period ending September 30,
1962.5
C. Conclusions
The complaint alleges that (1) the Respondent Company violated Section 8(a) (3)
and (1 ) of the Act by discharging Bernard because of her failure to pay dues or a
reinstatement fee to the Union; and (2) the Respondent Union violated Section
8(b)(2) and (1)(A) by causing the Employer to discharge her for the same reason.
The foregoing findings amply support General Counsel' s allegations of fact, in
the opinion of the Trial Examiner. There is little or no dispute that from the first
to the last demands made upon her by the union officials she was given, to escape
the penalty of discharge, the alternatives of paying the amount of back dues the
Union was claiming or paying a $15 "reinstatement" fee. And Allegretti's letter to
Buchen of October 16 establishes that the Respondent Company had good reason to
believe that union "dues obligations" were involved, yet Buchen admitted he made
no inquiry as to the precise nature of the Union's claim against the employee.
Moreover, in his brief counsel for the Respondent Company states:
The testimony at the hearing indicated that there was no dispute with the fact
that Mary L. Bernard was delinquent in the payment of her dues. The only
dispute with respect to the dues was the question as to how much she was
delinquent.
A Except as otherwise indicated , the quotations have been from the credible testimony
of Bernard. Testimony of union officials which varies from it, especially where prompted,
is not credited
s The figure of $31 was reached, apparently, by adding to the 29 weeks in 1962 the
2 weeks in 1963 when , also, no dues were deducted from her paycheck-one for a vacation
and the other when she was ill.
SIMMONS COMPANY 717
The foregoing findings also establish that Bernard's claimed indebtedness to the
Union as dues was incurred, for the most part, during a period of 29 weeks-from
February 11, 1962, through August 26, 1962, the latter week being the one during
which the contract went into effect requiring, as a condition of employment, the pay-
ment of money, whether termed dues or the equivalent of dues, by all employees,
union members or not.6
The Trial Examiner knows of no Board case precisely in point , and counsel cite
none. Nothing in the current "agency contract," as the Trial Examiner reads it,
permits an employer to use, or a labor organization to cause him to use, his employ-
ment power to serve as a collection agency for the Union for debts incurred months
prior to the execution of any contract.
Whatever the merits of the "free rider" argument advanced by counsel for the
Union in his brief, or the equities of a union provision requiring dues from a member
when ill and on leave of absence , under circumstances not existing here, such matters
are not material to the issues in this case, the Trial Examiner believes.
It seems unnecessary here to determine exactly what amount, on the date of her
discharge, Bernard may have owed the Union. Whatever that amount, it is clear
that the Union was demanding, as a condition of employment, the payment of far
more than the effective date of the agency shop contract permitted, or the payment
of a "reinstatement fee."
The Trial Examiner concludes and finds that nothing in the law or the contract
permitted the Respondents, individually or jointly, to make employment contingent
upon the payment of any debts to the Union incurred before August 24, 1962.
Finally, the Trial Examiner concludes and finds that not only the facts, but the law,
as he interprets it, sustains General Counsel's allegations that the Respondents, and
each of them, have violated the sections of the Act respectively invoked against them.
The discrimination against Bernard clearly tended to encourage membership in good
standing in the Union, and restrained and coerced employees in the exercise of rights
guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in con-
nection with the operations of the Respondent Company described in'section I,
above, have a close, intimate , and substantial relation to trade, traffic; and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce. -
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
the Trial Examiner will recommend that they cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent Company offer Mary Bernard imme-
diate and full reinstatement to her former or substantially equivalent position, with-
out loss of her seniority or other rights and privileges. It will also be recommended
that the Respondent Company and the Respondent Union jointly and severally make
the said employee whole for any loss of pay she may have suffered by reason of the
discrimination against her, by payment to her of a sum of rhoney equal to that which
she would normally have earned as wages from the date of the discharge to the date
of offer of full reinstatement, in the case of the Respondent Company and, in the
case of the Respondent Union to 5 days after notification to the Company- and the
discharge that it has no objections to her reinstatement, less her net earnings. Back-
pay, including payment of interest at-6 percent, shall be computed in accordance with
Board policy set out in F. W. Woolworth Co.,- 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
The unfair labor practices found to have been committed by the Respondents go to
the heart of the Act, and reflect a purpose by unlawful means, likely to be executed
in the future, to thwart the employees' exercise of their Section 7 rights. In order
that the preventive purpose of these recommendations may be coextensive with the
threat of future violations, it will be recommended that the Respondents cease from
in any manner infringing upon the employees' rights guaranteed by Section 7 of
the Act.
The fact that the Union may have applied the checked off moneys, when finally received
after October 1, 1962, .to the weeks from February on, in no way alters the reality of
the fact that the "indebtedness" was incurred while no contract requiring payment of
anything was in existence or effect. , •
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Simmons Company is engaged in commerce within the meaning of the Act.
2. Respondent Union, Local 185, Mattress, Spring & Bedding Workers' Union,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Mary
Bernard, thereby encouraging membership in Respondent Union , the Respondent
Company, Simmons Company, has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act, and thereby has interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act, in violation of Section 8 (a) (1) of the Act.
4. By causing the Respondent Company to discriminate against the above-named
employee in violation of Section 8(a)(3) of the Act, the Respondent Union has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(b)(2) of the Act; thereby restraining and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, in violation of Section 8(b)(1)(A) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
The Bendix Corporation , Kansas City Division and International
Brotherhood of Electrical Workers , Local Union No. 124, AFL-
CIO, Petitioner . Case No. 17-RC-4444. December 29, 1964
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer H. L.
Hudson. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed?
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the Board has delegated its powers in connection with this case to a
three-member panel [Chairman McCulloch and Members Fanning
and Jenkins].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
'The Intervenor urges that the Hearing Officer displayed bias and prejudgment in his
handling of this case by discussing the issues with counsel for the Employer in two meet-
ings held prior to the hearing, and by calling a witness on his own behalf to clarify the
appropriateness of the unit requested by the Petitioner . We find that neither of these
claims has merit . The meetings referred to took place as part of the Hearing Officer's
attempts to gather relevant information from the Employer concerning the makeup of
the proposed unit, and there is no evidence that the discussions which took place were
other than investigatory in nature . The hearing in this matter , unlike unfair labor
practice proceedings , for example , are nonadversary in nature and not within the Ad-
ministrative Procedure Act. The Hearing Officer in this type of case Is responsible for
obtaining a full and complete record and , unlike other types of proceedings , he does not
make any recommendations respecting the matters before him. (Section 9(c) (1) of the
Act.) The calling of a witness by a Hearing Officer clearly comes within the powers
vested in him by Section 102.64 of the Board 's Rules and Regulations.
150 NLRB No. 63.