Association Of Western Pulp & Paper Workers

National Labor Relations Board - Board Decisions

Mar 4, 1968

170 N.L.R.B. 49 (N.L.R.B. 1968)

ASSOCIATION OF WESTERN
Association of Western Pulp & Paper Workers and
Local 28, Association of Western Pulp and Paper
Workers (Fibreboard Paper Products Corp.) and
United Papermakers & Paperworkers. Case
19-CB-1 197
March 4, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 7, 1967, Trial Examiner Louis S.
Penfield issued his Decision in the above -entitled
proceeding , finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices in violation of the National Labor Rela-
tions Act , as amended , and recommending that the
Respondents cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner 's Decision . Thereafter, the
Respondents filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made 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 and
brief, and the entire record in the case, and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondents, As-
sociation of Western Pulp & Paper Workers and
Local 28, Association of Western Pulp and Paper
Workers, Sumner , Washington , their officers,
agents , and representatives , shall take the action set
forth in the Trial Examiner 's Recommended Order,
as herein modified:
1. Add the following at the end of paragraph
2(a) of the Trial Examiner 's Recommended Order:
... with interest' thereon at the rate of 6 percent
per annum , in accordance with Isis_ Plumbing &
Heating Co., 138 NLRB 716."
170 NLRB No. 8
PULP' & PAPER WORKERS 49
2. Add the following as Section 2(b) to the Trial
Examiner's Recommended Order:
"(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
cQpying, all records and reports and all other docu-
ments necessary to analyze the moneys due under
the terms of this Recommended Order."
' We correct the typographical error in the first indented paragraph of
the Trial Examiner's recommended Notice by changing the word 'as" on 1
2 to "or," and the word "or' on 1 5 to "as "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOUIS S. PENFIELD, Trial Examiner: This
proceeding was heard before me in Seattle,
Washington, on August 1, 1967, upon a complaint
of the General Counsel and answer of Association
of Western Pulp & Paper Workers and Local 28,
Association of Western Pulp and Paper Workers,
herein jointly called Respondents.' The issues
litigated were whether Respondents violated Sec-
tion 8(b)(1)(A) and (2) of the National Labor
Relations Act, as amended, herein called the Act.
Upon the entire record, including consideration
of briefs filed by the parties, and upon my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Fibreboard Paper Products Corp., herein called
the Employer, is a Delaware corporation engaged
in the manufacture of cardboard containers and re-
lated products at various plants located throughout
the United States, including one located at Sumner,
Washington, which is the only plant involved in this
proceeding. During the most recent fiscal year, the
Employer in the course and conduct of its business
at its Sumner plant manufactured, sold, and dis-
tributed products valued in excess of $50,000,
which it shipped directly in interstate commerce to
points located outside the State of Washington. I
find that at all material times the Employer has
been engaged in a business affecting commerce
within the meaning of the Act, and the assertion of
jurisdiction over such business to be appropriate.
The Employer is a member of Pacific Coast As-
sociation of Pulp and Paper Manufacturers , an em-
ployer association representing numerous pulp and
paper mills on the Pacific Coast for collective-bar-
' The complaint issued on June 15, 1967, and is based on a charge filed
with the National Labor Relations Board, herein called the Board, on
February 28, 1967 Copies of the complaint and the charge have been duly
served on the Respondents
350-999 0 - 71 - 5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining purposes . This employer association and
Respondent Association of Western Pulp and Paper
Workers are party signatories to a contract cover-
ing employees of the employer members. Respon-
dent Local 28, Association of Western Pulp and
Paper Workers is the local administering such con-
tract insofar as it affects employees of the Em-
ployer. Since the sole issue to be resolved here cen-
ters on rights under this contract , and no question
as to the separate responsibility of either individual
Respondent has been raised , it will be assumed that
responsibility for all alleged unlawful conduct is
joint , and use of the term "Respondents " herein
will signify this even though specific demands or
request may have come from the local alone
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents , and each of them , and United
Papermakers and Paperworkers , the Charging Party
herein , are each labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Carroll and Hardy , and that the Employer at, such
time was obligated by the contract to honor the de-
mands. The Employer , however , did not take action
in response to the demands immediately, and by
mid-December both employees were still working
for the Employer. Shortly thereafter Respondents
resolved that if each employee would pay his back
dues, pay a reinstatement fee, and pay a fine of
$100, Respondents would withdraw the demands
theretofore made for their discharges.,' Fulfillment
of these conditions would enable the two em-
ployees to continue in the employ of the Employer
retaining all their accrued seniority and other rights
and privileges . Respondents ' proposition was
presented to the employees who acceded to the
conditions imposed including payment by each of
them of the $100 fine assessed. Thereafter on
December 22, 1966, Respondents advised the Em-
ployer that each of the employees had "met all the
requirements for reinstatement imposed by Local
28 AWPPW," and that "in view of this action we
hereby order all pending discharge action stopped
and eliminated as of this date." As a result, the two
employees have continued at all times to remain in
the employ of the Employer
The General Counsel alleges that Respondents
attempted to cause the Employer to discriminate
against two employees by insisting that each pay a
fine as a condition of continued employment,
withdrawing their demands for the discharges of
such employees only after the fines assessed had
been paid. Respondents admit demanding the
discharges pursuant to the provisions of a valid
union-security agreement, but claim their insistence
upon payment of the fines to be a lawful condition
imposed only in conjunction with the withdrawal of
their accrued right to have the discharges take
place. There is no dispute whatsoever as to the
facts all of which were stipulated.
At all times material to this proceeding Respon-
dents and the Employer were bound by the terms of
a collective-bargaining agreement which, among its
other provisions, contained a lawful union-shop
clause requiring maintenance of membership as a
condition of continued employment. In the fall of
1966 two employees Orean Carroll and Henry C.
Hardy, employees of the Employer and union mem-
bers, became delinquent in their dues and ceased to
be union members in good standing. Acting, under
the provisions of their collective-bargaining agree-
ment, Respondents thereafter filed requests with
the Employer for the discharge of these two em-
ployees.2
It is agreed that all circumstances and conditions
necessary to effect a lawful discharge pursuant to
the provisions of the collective-bargaining contract
and union rules had been fulfilled with regard to
2 The delinquencies actually occurred on different dates and the requests
for discharge were filed at different times This has no importance, how-
ever, since the significant action regarding each took place at the same
time
Discussion of the Issues and Conclusions
The issue presented is a narrow one, and as noted
above, it comes to us on an undisputed set of facts.
Basically, it is the contention of the General Coun-
sel that Respondents have conditioned the con-
tinued employment of Carroll and Hardy upon their
payment of fines, an unlawful condition for a union
to impose even under a valid union-security agree-
ment. Respondents acknowledge that the statute
does not permit a union to condition employment
upon the payment of a fine in most instances, but
they' insist that in the instant case the action was
permissible because the fines were imposed only
after all rights of Carroll and Hardy to continued
employment had been extinguished. They argue
that at the times the fines were assessed all that
remained to be done was the ministerial act of
severing such employees from the Employer's
payroll. Respondents assert that in such a situation
it is lawful for a union to condition abandonment of
its vested and accrued right to effectuate the
discharges upon payment of a fine. Respondents
correctly point out that by doing nothing further
the supreme penalty of discharge with full loss of all
accrued employment rights would have been law-
fully visited upon the employees, and that
thereafter they would have retained no more than
the right to future nondiscriminatory reemployment
as new employees Respondents contend that under
the circumstances abandonment of the right to let
3 Respondents assert that this approach came about at the suggestion of
the Employer The General Counsel does not acknowledge this to be the
case I deem it irrelevant to any issue to be resolved herein whether or not
the Employer made a such a suggestion,
ASSOCIATION OF WESTERN PULP & PAPER WORKERS
the discharges take place conditioned upon pay-
ment of the fines must be viewed as a lesser penalty
than Carroll and Hardy would have experienced
had Respondents taken no further action what-
soever . It is asserted that the statute should be con-
strued to hold imposition of the condition lawful in
a situation like this , because it will result in an ulti-
mate benefit to employees by encouraging unions
to seek solutions other than outright discharge by
which delinquent members may be punished and
still retain accrued employment benefits . Although
Respondents ' argument has a degree of plausability
and has been ably presented and argued by counsel
in his brief, I am not convinced that the statute can
be construed to sustain it.
Although this proceeding does not involve
charges against an employer , the issue centers upon
whether Respondents caused or attempted to cause
"an employer to discriminate against an employee
in violation of subsection ( a)(3) ..." Thus, the
proper construction of the proviso to Section
8(a)(3) as applied to the facts before us becomes
the significant issue. Such proviso reads-
Provided further, That no employer shall justify
any discrimination against an employee for
nonmembership in a labor organization (A) if
he has reasonable grounds for believing that
such membership was not available to the em-
ployee on the same terms and conditions
generally applicable to other members, or (B)
if he has reasonable grounds for believing that
membership was denied or terminated for
reasons other than the failure of the employee
to tender the periodic dues and initiation fees
uniformally required as a condition of acquir-
ing or , retaining membership.
The proviso lists the sole circumstance justifying
discharge "for non-membership " to be "failure .. .
to tender the periodic dues and initiation fees...."
Essentially ,Respondents assert that this statutory
limitation should be construed to permit them to
impose any nondiscriminatory condition upon con-
tinuing employment of delinquent employees once
the right to discharge for nonpayment of dues has
accrued .4 Respondents acknowledge that there is
no definitive Board case supporting this contention,
but they rely upon dictum found in the Board Deci-
sion in Krambo Food Stores, Inc., 106 NLRB 870.
In Krambo the Board faced a situation in which em-
ployees had become delinquent in their dues under
a valid union-security agreement . In consequence,
the union , rather than demanding their outright
discharges , undertook to have the employer
withhold vacation pay to which the delinquent em-
ployees had become entitled . It did not appear,
however, that the union in Krambo had at the same
time abandoned its right to bring about the
discharges of the affected employees. The Board
51
held that under the circumstances withholding of
vacation benefits amounted to an additional dis-
crimination, and that loss of vacation pay thus
could not be regarded as a lesser penalty but as an
added one which did not fall within permissible
statutory limitations. Respondents agree that the
Board reached the right result in Krambo, but they
point out that in the instant case they expressly
abandoned their accrued right to bring about the
discharges of Carroll and Hardy upon their pay-
ment of the fines . Respondents point to two state-
ments in the Board's opinion: in Krambo which they
alleged support a theory that with abandonment of
the right to discharge the imposition of a lesser
penalty becomes appropriate. The Board dictum in
Krambo reads as follows:
Since the issue is not here presented, we do
not, as our dissenting colleague appears to as-
sume, pass upon whether or not a lesser penal-
ty would be permissable if coupled with clear
abandonment of the right to discharge....
Nothing in the Act or its legislative history per-
suades us that the union-shop provisos of Sec-
tion 8 (a)(3) and 8(b)(2) were designed to give
employers and unions a license to use various
discriminatory devices short of discharge, to
coerce an employee to join the union while still
holding over his head the alternate threat of
discharge which the statute sanctions.
Respondents urge that although the Board had no
need to face the issue in Krarnbo, this dictum signi-
fies that where, as here, a union has abandoned the
"alternate threat of discharge" it may then impose
the so-called lesser penalty of a fine upon em-
ployees that have already lost all right to continued
employment.
There is no question that at the time Respon-
dents demanded that Carroll and Hardy be ter-
minated Respondents had the right to have these
discharges eventuate merely by taking no further
action whatsoever. It does not necessarily follow,
however, that even from such a posture the statute
would permit a union to invoke some other penalty
which related to their continued employment
whether this be described as additional, lesser or
greater. Nor does it follow that at this point
Respondents had no alternative course to follow if
it sought to impose any disciplinary measures upon
the employees unrelated to employment status. The
right, which at this time had accrued to Respon-
dents, was one which they could have waived un-
conditionally at any time prior to the actual ter-
minations. This would also have resulted in the em-
ployees having retained all accrued employment
benefits. Since unions always have full rights to
prescribe their own rules, they might, at the same
time, have assessed fines or other intraunion penal-
/ ties unrelated to employment status. This was not
' It is not claimed here that Carroll or Hardy were being treated in any
manner with regard to their membership which would not be generally ap-
plicable to all other union members
52 DECISIONS OF NATIONAL
the approach chosen , however, and it stands -un-
disputed that Carroll and Hardy could only con-
tinue their employment upon payment of the $100
fines . I do not understand Respondents to claim
that had Carroll and Hardy actually been ter-
minated , they could have conditioned their-reem-
ployment upon their paying fines which Respon-
dents had levied against them for any reason.
Clearly in this situation , Respondents at the most
could subject them only to payment of the uniform
membership fees and dues which the- terms of the
union-security agreement permitted . Yet, here we
find Respondents confronting these same em-
ployees prior to their termination with the proposi-
tion that if they undertake to retain employment
status, the fines must be paid. The vice of such con-
duct is that they are undertaking to discipline Car-
roll and Hardy, not as an intraunion matter, but as
a condition of their continued employment and
using a condition other than their failure " to tender
the periodic dues and initiation fees." While no
doubt unions might more effectively discipline
members if permitted to take action affecting their
employment relationship , this is the precise - thing
that the statute proscribes.
I regard the Krambo dictum, assuming it were to
be adopted by the Board , as directed at a different
situtation from that which confronts us here.
Discharge for nonpayment of dues may be viewed
as the supreme penalty which a union may invoke
against a delinquent member since its effect is to
extinguish the existing employment relationship al-
together . The Krambo dictum suggests that should a
union abandon its right to invoke this supreme
penalty , it might be permitted to substitute a lesser
penalty which would diminish , but not altogether
extinguish , accrued employee benefits. Possibly
such things as vacation pay or seniority might be
taken from the delinquent members on the theory
that as accrued employee benefits their loss would
be a lesser penalty than outright discharge . Assum-
ing, without deciding , that this would be permissi-
ble in appropriate circumstances, it would rest sole-
ly on a premise that since the statute expressly per-
mits total destruction of the employment relation-
ship something less than this but directly related to
and affecting an aspect of the employment relation-
ship would be permissible . A fine, however, has
neither a direct nor an indirect connection with
anything related to employment status . It flows
solely from the union-member relationship and is
something that can be , assessed and collected only
as an incident thereof. Thus, the assessment of a
fine can never be regarded as a diminished version
of a penalty expressly permitted by statute but as
something additional , and where , as here , it is used
in a manner to affect the employment status of the
employees, it is proscribed by law.
For reasons set forth above, I find that Respon-
dents , by conditioning the continued employment
of Carroll and Hardy upon their payment of fines,
have exacted a penalty which the statute forbids,
LABOR RELATIONS BOARD
and that thereby they have attempted to cause the
Employer to discriminate against Carroll and Hardy
in violation of Section 8(a)(3) of the Act, thus en-
gaging in violations - of Section 8(b)(2) and (1)(A)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE -
The activities of Respondents .as set forth in sec-
tion III, above , occurring in connection with the
operations of the Employer as set forth in section 1,
above , have a close , intimate , and substantial rela-
tionship to trade , traffic , and commerce among the
several States and tend to lead to labor disputes-
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in
activites violative of Section 8(b)(1)(A) and (2)-of
the Act, I shall recommend that they cease and de-
sist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Inasmuch as, the unlawful conduct of Respon-
dents resulted in no loss of employment to either of
the discriminatees , no affirmative reinstatement or
make whole order is required . It appears from the
record that the reinstatement fees - and payment of
back dues are in amounts which Respondents could
lawfully require pursuant to the terms of their con-
tract with the Employer. I have found, however,
that Respondents unlawfully required the payment
of fines as a condition of continued employment,
and I shall direct that the discriminatees be reim-
bursed for the amounts which they paid as such
fines. -
Upon the basis of the foregoing findings of fact
and upon the entire record in this case , I make the
following:
CONCLUSIONS OF LAW
1. Fibreboard Paper Products Corp. is an em-
ployer within the meaning of Section 2(2) of the
Act, engaged in commerce or in an industry affect-
ing commerce within the meaning of Section 2(6)
and (7) of the Act. -
2. Respondents, and each of them, are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
3. By conditioning the continued employment of
Orean Carroll and Henry C. Hardy upon. the pay-
ment of fines to Respondents in the manner
described above, Respondents have engaged in un-
fair labor , practices within , the meaning of Section
8(b)(l)(A) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 0 ) and (7) of the Act.
ASSOCIATION OF WESTERN PULP & PAPER WORKERS 53
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is recom-
mended that Respondents, and each of them, and
their respective officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Fibreboard
Paper Products Corp., or any other employer, to
condition further employment of Orean Carroll or
Henry C. Hardy upon payment of fines to Respon-
dents, or either of them, or to require that such em-
ployees pay fines as a condition of continued em-
ployment, or in any other manner to discriminate
against them, except to the extent permitted by the
proviso to Section 8(a)(3) of the Act, as amended.
(b) In any like or related manner interfering
with, restraining, or coercing its members in the ex-
ercise of the rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Reimburse Orean Carroll and Henry C.
Hardy for the amounts which they have paid as
fines to Respondents as a condition of continued
employment with the Employer.
(b) Post at their respective business offices,
meeting halls, or other locations where notices to
members are customarily posted, copies of the at-
tached notice marked "Appendix. Copies of said
notice to be furnished by the 'Regional Director for
Region 19, shall, after being duly signed by official
representatives of each of Respondents, be posted
immediately upon receipt thereof and maintained
by them for 60 consecutive days thereafter in con-
spicuous places including all places where notices
to members are customarily posted. Reasonable
steps shall be taken by Respondents to assure that
such notices are not altered, defaced, or covered by
any other material.
(c) Furnish to the Regional Director for Region
19, signed copies of said notice for posting by
Fibreboard Paper Products Corp., if willing, in
places where notices to employees are customarily
posted. Copies of said notice to be furnished by the
Regional Director, after "being signed by each of
respective Respondents, shall be forthwith returned
to the Regional Director for distribution by him.
(d) Notify the Regional Director for Region 19,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.6
APPENDIX
NOTICE TO ALL MEMBERS OF ASSOCIATION OF
WESTERN PULP & PAPER WORKERS AND LOCAL
28, ASSOCIATION OF WESTERN PULP AND PAPER
WORKERS AND TO ALL EMPLOYEES OF
FIBREBOARD PAPER PRODUCTS CORP.
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify you that:
WE WILL NOT cause or attempt to cause
Fibreboard Paper Products Corp ., or any other
employer , to condition further employment of
Orean Carroll or Henry C . Hardy upon pay-
ment of fines, or require such employees to
pay fines as a condition of continued employ-
ment , or in any other manner discriminate
against them , except to the extent permitted by
the proviso of Section 8(a)(3) of the Act, as
amended.
WE WILL reimburse Orean Carroll and
Henry C . Hardy the sums of money collected
as fines in order that they might continue their
employment with Fibreboard Paper Products
Corp.
ASSOCIATION OF WESTERN
PULP & PAPER WORKERS
(Labor Organization)
(Representative ) (Title)
LOCAL 28, ASSOCIATION
OF WESTERN PULP AND
PAPER WORKERS
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If members or employees have any question con-
cerning this notice or compliance with its provi-
sions, they may communicate directly with the
Board's Regional Office, 327-Logan Building, 500
Union Street, Seattle, Washington 98101,
Telephone 583-7473.
In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Re-
spondents have taken to comply herewith "