United Packinghouse, Food, Etc., Local 673

National Labor Relations Board - Board Decisions

May 24, 1963

142 N.L.R.B. 768 (N.L.R.B. 1963)

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization as a condition of employment as authorized
by Section 8(a) (3) of the Act, as modified by the Labor -Management Reporting
and Disclosure Act of 1959.
JAMES HOTEL COMPANY , A CORPORATION DAB/A
SKIRVIN HOTEL AND SKIRVIN TOWER,
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, Meacham
Building, 110 West Fifth Street , Fort Worth , Texas, 76102 , Telephone No. Edison
5-4211, Extension 2131 , if they have any questions concerning this notice or com-
pliance with its provisions.
United Packinghouse , Food and Allied Workers , Local 673, AFL-
CIO and Ora Mae Riley and J-M Poultry Packing Company,
Inc. d/b/a Dixie Broiler Company , Inc., Party to the Contract.
Case No. 15-C13-575. May 24, 1963
DECISION AND ORDER
On December 21, 1962, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and the Respondent filed a
brief in support thereof.
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 Members
Rodgers and Leedom].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.
As found by the Trial Examiner, Respondent, up to February
1962, collected $3 a month from each employee, or from the Employer
on their behalf, as periodic dues under the parties' union-security
agreement. Beginning with that month, the amount collected was
increased to $4. In agreement with the Trial Examiner, we find
1 The Trial Examiner found that Respondent Union violated Section 8 ( b) (1) (A) and (2)
of the Act by maintaining and enforcing the "side agreement," a form of union security,
at a time when it was assisted by the Employer . In the absence of exceptions to these
findings , we adopt them pro forma.
142 NLRB No. 84.
UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 769
that the additional $1 a month exacted from each employee, and re-
fundable upon his attendance at the monthly union meeting, was a fine
for nonattendance of the meetings? As such, the Respondent Union
could not lawfully require its payment under the union-security agree-
ment. It has been consistently held that a union may demand, as a
condition of employment, only the periodic dues and initiation fees
permitted by the proviso to Section 8(a) (3) of the Act.' Nor could
Respondent, under the guise of the union-security agreement, require
the Employer to deduct such sums from the wages of employees who
had executed checkoff authorizations. We conclude, therefore, that
Respondent restrained and coerced employees in violation of Section
8('b) (1) (A) of the Act, and caused and attempted to cause the Em-
ployer to discriminate against them, thereby also violating Section
8(b) (2) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action that we find necessary to effectuate the
policies of the Act.
In his exceptions to the Intermediate Report, the General Counsel
requests, in addition to the reimbursement of the $1 fine to all em-
ployees, the reimbursement of all dues paid after February 1, 1962, by
that group of employees covered by the "side agreement." As we have
found that the "side agreement" was unlawful, and as the Employer,
after February 1, 1962, also deducted dues from the wages of the em-
ployees covered by the "side agreement" and remitted them to the Re-
spondent, we shall order that all dues paid after February 1, 1962, by
the employees it covers be reimbursed by Respondent Union, with
interest thereon at the rate of 6 percent per annum,' to be computed
in the manner set forth in Seafarers International Union, etc., 138
NLRB 1142.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent , United Packing-
house, Food and Allied Workers, Local 673, AFL-CIO, its officers,
agents, representatives , successors, and assigns , shall:
2 See The Leece-Neville Company, 140 NLRB 56
3 The Radio Officers' Union, et at. (A H. Bull Steamship Company) v. N.L.R B , 347
U.S 17, 40-42; International Union, UAW, AFL-CIO (John I Paulding, Inc ), 137
NLRB 901
4 For the reasons stated in the dissenting opinion in Isis Plumbing & Heating Co , 138
NLRB 716, Members Rodgers and Leedom are convinced that the award of interest in this
proceeding exceeds the Board's remedial authority. While adhering to such view, for the
purpose of this decision they are acceding to the majority Board policy of granting interest
on moneys due.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Maintaining and enforcing, or requiring J-M Poultry Packing
Company, Inc., d/b/a Dixie Broiler Company, Inc., to maintain and
enforce the "side agreement" executed February 2, 1961, insofar as the
agreement requires nonmember employees hired prior to April 20,
1960, to pay dues to it, or requires the Employer to pay dues for them.
(b) Requiring employees, as a condition of employment, to pay
fines for nonattendance at union meetings.
(c) Causing, or attempting to cause, J-M Poultry Packing Com-
pany, Inc., d/b/a Dixie Broiler Company, Inc., to discriminate against
its employees with regard to a term and condition of their employ-
ment by requiring it to deduct union fines from the wages of its em-
ployees as a condition of their employment.
(d) In any like or related manner causing, or attempting to cause,
J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company,
Inc., to discriminate against its employees in violation of Section
8(a) (3) of the Act, or restraining or coercing the employees of the
Employer in the exercise of rights guaranteed in Section 7 of the Act,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Refund to each of the employees of J-M Poultry Packing Com-
pany, Inc., d/b/a Dixie Broiler Company, Inc., the fines deducted from
their wages for nonattendance at Union meetings since February 2,
1962, and not yet refunded.
(b) Refund to all nonmember employees of the aforesaid Employer
hired prior to April 20, 1960, all dues paid by them after February 1,
1962.
(c) Post in conspicuous places in Respondent's business offices and
meeting halls in Baton Rouge, Louisiana, and places where such no-
tices are customarily posted, copies of the attached notice marked
"Appendix." I Copies of said notice, to be furnished by the Regional
Director for the Fifteenth Region, shall, after being duly signed by
official representatives of the Respondent, be posted by the Respondent
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Mail to the Regional Director for the Fifteenth Region signed
copies of the aforementioned notice for posting by J-M Poultry Pack-
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 771
ing Company, Inc., d/b/a Dixie Broiler Company, Inc., the latter
willing, in places where notices to employees are customarily posted.
Copies of said notice, to be furnished by the aforesaid Regional Direc-
tor, shall, after being signed by the Respondent as indicated, be re-
turned forthwith to the Regional Director for disposition by him.
(e) Notify the aforesaid Regional Director, in writing, within
10 days from the date of this Decision and Order, what steps have
been taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED PACKINGHOUSE, FOOD AND ALLIED
WORKERS, LOCAL 673, AFL-CIO AND TO ALL EMPLOYEES OF J-M
POULTRY PACKING COMPANY, INC., D/B/A DIXIE BROILER COMPANY,
INC., BATON ROUGE, LOUISIANA
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT maintain and enforce, or require J-M Poultry
Packing Company, Inc., d/b/a Dixie Broiler Company, Inc., to
maintain and enforce, the "side agreement" executed on Febru-
ary 2, 1961, insofar as that "side agreement" requires nonmember
employees of Dixie Broiler Company, Inc., hired prior to April 20,
1960, to pay dues to the Union, or requires the Employer to pay
dues for them.
WE WILL NOT cause J-M Poultry Packing Company, Inc., d/b/a
Dixie Broiler Company, Inc., to deduct, from the wages of its em-
ployees, fines for their nonattendance of meetings of this Union.
WE WILL refund to all employees of J-M Poultry Packing Com-
pany, Inc., d/b/a Dixie Broiler Company, Inc., all fines which
have been deducted from their wages because of their non-
attendance of meetings of this Union since February 1, 1962, or
which have otherwise been remitted to us and not yet refunded
to these employees.
WE WILL refund to all nonmember employees hired prior to
April 20, 1960, all dues paid by them to us since February 1, 1962.
WE WILL NOT in any like or related manner cause or attempt to
cause J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler
Company, Inc., to discriminate against its employees in violation
of Section 8(a) (3) of the Act, nor will we restrain or coerce said
employees in the exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a
712-548-64-vol . 142-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment, as authorized in Section 8(a) (3) of the
Act, as amended.
UNITED PACKINGHOUSE, FOOD AND ALLIED
WORKERS, LOCAL 673, AFL-CIO,
Labor Organization.
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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New
Orleans, Louisiana, 70113, Telephone No. 529-2411, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, under Section 10(b) of the National Labor Relations Act (29
U.S.C Sec. 151 et seq.; herein called the Act), began with the filing of a charge on
May 11, 1962, by Ora Mae Riley, herein called Riley, and with all parties represented,
was held before Trial Examiner George L. Powell, in Baton Rouge, Louisiana, on
September 25, 1962, on complaint of the General Counsel and answer of the
Respondent.'
The main issue in the case is: Did Respondent, United Packinghouse, Food and
Allied Workers, Local 673, AFL-CIO,z violate Section 8(b)(1)(A) and (2) of the
Act by fining members $1 for not attending union meetings. The Respondent's
defense is that the $1 paid to attending members does not constitute a fine against
nonattending members, and hence there is no violation of the Act. The validity of an
agency-shop provision is specifically not contested on the record. The other issue
is whether the so-called "side agreement" violated Section 8(b)(1)(A) and (2)
of the Act by not providing for a 30-day grace period, or because the union had no
authority to enter into it. Respondent's defense to this issue is that the side agreement
was not to be enforced within the necessary 30-day period and the payment of money
was dues and was not assistance to the union .3
All parties were represented, and participated in the hearing, and were permitted
to develop testimony concerning the issues. A brief was filed by the General Counsel
on October 22, 1962.
For reasons hereafter stated in detail in the findings of fact, I find that Respondent
raised the monthly dues from $3 to $4 for the purpose of giving back $1 to each
i The General Counsel of the National Labor Relations Board, 'herein called the Board,
by the Regional Director for the Fifteenth Region, issued his complaint and notice of
hearing on August 31, 1962, based upon the above charges, alleging that Respondent vio-
lated Section 8(b)(1)(A) and (2 ) and Section 2(6) and (7) of the Act Respondent filed
its answer on September 10, 1962, denying the alleged violations of the Act.
'This is the name as corrected on the record by Alvin Vicknair, field representative of
United Packinghouse, Food and Allied Workers, AFL-CIO.
Section 8(b)
It shall be an unfair labor practice for a labor organization or its agents-
(1) to restrain or coerce (A) employees in the exercise of rights guaranteed in
section 7: Provided, That this paragraph shall not impair the right of a labor organi-
zation to prescribe its own rules with respect to the acquisition or retention of
membership therein .. .
(2) to cause or attempt to cause an employer to discriminate against an employee
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 periodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining membership ;
UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 773
member who attended the regular monthly meeting. Thus, the nonattending mem-
bers were fined $1 for not attending the meeting and this fine was periodically paid
by the employer as dues to qualify the employee for continued employment under
the union-security contract. I find this to be a violation of Section 8 (b) (1) (A) and
(2) of the Act. I find the side agreement also violates Section 8(b) (1) (A) and (2)
of the Act. But not on the theory that it did not contain the required 30-day grace
period. Rather, I find the violation on the theory that the Respondent does not
qualify to hold a union-security clause inasmuch as it is receiving assistance from
Dixie Broiler Company in violation of Section 8(a) (2) of the Act.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company, herein called
Dixie, is a Louisiana corporation engaged in the processing and wholesale sale of
chickens in Baton Rouge, Louisiana. The answer admits that during the 12 months
preceding the issuance of the complaint, Dixie, in the course and conduct of its busi-
ness operations, purchased and received chickens valued in excess of $50,000 which
were shipped directly to it in the State of Louisiana from points outside the State of
Louisiana and that it is engaged in commerce within the meaning of Secton 2(6)
and (7) of the Act. I so find.
II. THE LABOR ORGANIZATION INVOLVED
On February 2, 1961, the United Packinghouse , Food and Allied Workers, Local
No. 673, AFL-CIO, herein called Respondent, entered into a collective -bargaining
agreement with Dixie in the unit described below.
Respondent admits that it, and its predecessor since on or about February 15, 1960,
has been certified as the collective-bargaining representative of all production and
maintenance employees of Dixie at its Baton Rouge, Louisiana , plant including killing
room and truckdrivers, excluding all office clerical employees , foremen , supervisors
and salesmen , watchmen and guards, as defined in the Act. I find the Respondent is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The collective-bargaining agreement and the side agreement
The collective-bargaining agreement between Respondent and Dixie dated Febru-
ary 2, 1961, contains, among other things, a union-security clause as follows:
Article V-Union Shop
Each employee must thirty (30) days after the date of signing of this Agree-
ment or upon completion of thirty (30) days of actual service with the Com-
pany, whichever is later, become and remain a member of the Union in good
standing as a condition of employment during the term of this Agreement.
The side agreement, dated February 2, 1961 is as follows:
FEBRUARY 2, 1961
BATON ROUGE, LOUISIANA
It is hereby agreed between J-M Poultry Packing Company, Inc. and United
Packinghouse, Food and Allied Workers of America (formerly United Packing-
house Workers of America) that regardless of anything to the contrary in the
contract entered into between these parties the 2nd of February, 1961, no em-
ployee who was employed by the Company on or before April 20, 1960, and
who is not presently a member of the Union shall be required to join the Union,
but such employees who do not join the Union must either pay the ordinary
Union dues or the Company must pay the dues for them.
J-M POULTRY PACKING COMPANY, INC. UNITED PACKINGHOUSE, FOOD AND
BATON ROUGE, LOUISIANA ALLIED WORKERS OF AMERICA,
AFL-CIO
One of the two principal issues in this case involves the legality of the union-
security provisions of the side agreement. The General Counsel takes the position
that the side agreement established an agency shop among a certain class of the
employees. And while not attacking the principle of agency shop, the General Counsel
does contend that the side agreement is illegal because, first, it failed to provide a 30-
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day grace period and, second , it makes reference to the payment of union dues by
Dixie for all employees covered under the side agreement . In the General Counsel's
view the payment of agency shop dues by Dixie constitutes a substantive violation of
Section 8(a)(2) of the Act, and therefore divested the Respondent of its authority
under the proviso to Section 8(a)(3) to condition employment upon union
membership.
Taking up the contentions of the General Counsel in the order presented, it is noted
that the side agreement is a form of union security and it indeed fails, in itself, to
grant employees covered by it a 30-day grace period prior to paying union dues. But
this failure does not, in my opinion, cause the side agreement to be in violation of
Section 8(b)(1)(A) and (2). This side agreement does not stand alone. It
specifically refers to the collective-bargaining agreement of February 2, 1961, and
modifies it only to the extent that it provides for any employee not presently a mem-
ber of the Respondent who had been employed by Dixie on or before April 20, 1960,
and who did not wish to join the Respondent. The 30-day grace period for any of
the employees who were employed by Dixie on or before April 20, 1960, and who
were not presently a member of the Respondent and who desire to join the Re-
spondent was provided for in article V of the collective-bargaining agreement.
Accordingly, no one is required to join Respondent without benefit of the 30-day grace
period.
But I find merit in the position of the General Counsel that the side agreement is
illegal because it calls for the payment of union dues by Dixie for all of the em-
ployees covered under it. The side agreement carved out certain employees who
normally would have to join and be governed by article V of the collective-bargaining
agreement, and it set up separate rules governing their obligation to the Union
The first proviso to Section 8 (a) (3) of the Act states:
Provided, That nothing in this Act, . shall preclude an employer from
making an agreement with a labor organization (not established, maintained, or
assisted by an action defined in section 8(a) of this Act as an unfair labor
practice) to require as a condition of employment membership therein on or
after the 30th day following the beginning of such employment or the effective
date of such agreement , which ever is the later .. .
Stated another way, the parenthetical clause in the quoted matter above does not
give the Employer the right to make a union-security contract with a labor organiza-
tion which it has maintained or assisted by any action defined in Section 8(a) of the
Act as an unfair labor practice. Is payment of dues maintenance or assistance?
The side agreement requires the Company to pay the union dues if they were
not paid by the employees and the record in the case establishes that the Company did,
in fact, pay the union dues for the employees covered by the side agreement.4 These
payments to the Respondent by Dixie constitute a substantive violation of Section
8(a)(2) of the Act (Aacon Contracting Company, Inc., 127 NLRB 1250, 1272).
Accordingly, since Respondent was assisted and maintained by Dixie by the payment
of union dues for certain of its employees, the Respondent does not qualify under
the first proviso of Section 8(a) (3), above, as a labor organization which is authorized
by the Act to enter into an agreement conditioning employment on union member-
ship. It does not qualify under the Act because the first proviso only authorizes
labor organizations which are "not established, maintained, or assisted by any action
defined in Section 8(a) of [the] Act as an unfair labor practice." I agree with the
analogy of the General Counsel that the lack of authority in Respondent in the in-
stant case, was similar to the lack of authority of a noncomplying union to make a
contract conditioning employment on membership.5
4 The parties stipulated on the record that there ". . . were approximately from 14 to
19 employees who were employed before April 20, 1960, who were covered by the side
agreement that the Company [Dixie] did pay $3 a month union dues for After February
of 1962, the Company [Dixie] deducted $4 a month from the checks of all the employees
whether they were hired prior to April 20, 1960, or not " (Note here that after February
1962, Dixie deducted the dues payment from wages, but prior thereto it did not deduct
dues payments from wages )
5 Prior to the 1959 amendments, the Board held that a labor organization, not in com-
pliance with Section 9(f), (g), and (h), violated Section 8(b) (1) (A) and (2) of the Act
if it maintained and enforced union-security provisions of a collective-bargaining agree-
ment (Tacoma Harbor Lumber and Timber Co., 108 NLRB 912 ) The Respondent in the
instant case was assisted and maintained by the Company's dues payments to it See
Julius Resnick, Inc, 86 NLRB 38. Thus Respondent lacked authority to enter into this
agreement.
UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 775
One last point remains. Section 8(b)(1)(A) of the Act contains a proviso that
states:
. . . That this paragraph shall not impair the right of a labor organization
to prescribe its own rules with respect to the acquisition or retention of mem-
bership therein:
Why then cannot Respondent raise the dues $1 and give it back to the member
should he attend the union meeting? Isn't that prescribing "its own rules with
respect to the acquisition or retention of membership?"
The Board has answered that question by holding the proviso to Section
8(b) (1) (A) of the Act does not protect conduct which otherwise would be violative
of the Act merely because such conduct was taken pursuant to union regulations.
(Utah Construction Co., 95 NLRB 196, footnote 10; Sub Grade Engineering Com-
pany, 93 NLRB 406; Byers Transportation Company, Inc., 94 NLRB 1494, footnote
6.) Pacific Intermountain Express Company, 107 NLRB 837, 843.
B. The Increase in Monthly Dues From $3 to $4
The complaint alleged that on or about January 8, 1962, Respondent increased
its monthly dues from $3 to $4 with the proviso that $1 would be refunded to each
member who attended the regular monthly union meeting. It further alleged that
the $1 increase in union dues constituted a fine imposed upon employees for non-
attendance at union meetings. The complaint alleged that Respondent notified Dixie
that it had increased its monthly dues from $3 to $4 and requested Dixie to deduct
and/or submit to Respondent the increased amount of $4 per month for each
employee in the bargaining unit, including the employees who had signed checkoff
authorizations and those who were covered by the side agreement. It is addi-
tionally alleged that Respondent threatened to invoke the Union's security provision
of its agreement with Dixie to demand the discharge of any employees in the bar-
gaining unit for whom Dixie did not, pursuant to checkoff authorizations and the
side agreement, submit their respective monthly dues in the amount of $4. It is
also alleged in the complaint that, as a result of Respondent's demands, employees
of Dixie have been and are now required to pay the increase of $1 in monthly
dues as a condition of employment.
In its answer, Respondent admitted to all of the conduct alleged above with
the exception of two points. First, Respondent demed that the dues were increased
with the proviso that $1 would be refunded for attendance at union meetings 6
Second, Respondent denied that the $1 increase in dues constituted a fine for non-
attendance at union meetings. All the other noted allegations are admitted.
The General Counsel contends that in view of the admissions contained in the
answer it is only necessary to determine if the additional $1 in union dues imposed
upon employees constituted a fine for nonattendance at union meetings. I agree.
But in determining the issue of fact it is necessary to see how and why the dues
increase was put into effect. Certain joint exhibits were admitted in the record on
motion of the parties. Among them were meeting minutes which referred among
other things to the increase in dues from $3 to $4 and to the $1 to be received
back for attending the meetings. For example, the minutes of the meeting of
Respondent held on January 15, 1962, contains the statement that-"Mr. O. B.
[Comager, president of Respondent] put the question about the member paying
$4.00 per month every time he or she doesn't come to meeting, and if he or she
comes to meeting, he will receive the sum of $1.00 back at the meeting." [Emphasis
supplied.] The minutes of the meeting on February 12, 1962, noted that if a
member could not attend the meeting because of sickness, "he will receive his or
her $1.00 back." The minutes of the meeting of March 12, 1962, contain the
reference that-"Mrs. Riley said she would like to vote that the $1.00 be moved
from the $4 00 the members have to pay a month for union dues " Following this
motion there was a discussion and a vote and the motion was defeated. The
minutes continuing, "So it remained for every member to pay $4 00 union dues and
with them present they will receive $1.00 back." [Emphasis supplied.]
Dixon was notified by letter dated January 17, 1962, from Mrs. Johnnie Wilson,
secretary and treasurer, and Mr. O. B. Comager, president, that-"beginning
February 1, 1962, and becoming effective from the above date through the 1961-62
contract . . . dues will be $4.00 per member per month ... .
6 Respondent's written answer admitted that the dues were increased with the proviso,
but at the hearing the answer was oially amended so as to deny that the proviso was part
and parcel of the increase in dues.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Vicknair, international field representative, admitted that the local dues
were raised from $3 to $4 and the Local "remitted $1.00 monthly to each member
who attended the regular monthly meeting" he admitted this $1 is given to the
member when the meeting is over. Further he admitted that if a person who
could not attend the meeting because of sickness or some other legitimate excuse
and he notifies the officers to that effect at the next monthly meeting, they give that
person back that $1 also.
Mr. Vicknair testified that he was informed that dues were increased for two
reasons, that is to increase the union treasury and to increase attendance at the
union membership meetings.
Dollie White, employed by Dixie as a gizzard cutter, credibly testified that she
was a member of the Respondent, that her monthly dues prior to 1961 were $3
and that since February 1962 they have been $4 and have been deducted from her
paycheck and that her shop steward told her the increase from $3 to $4 was,
just only to get the people out to the meetings and if you come to the meeting
she will get your dollar back." She was asked if she meant the $1 increase in dues
to which she replied, "the dollar increase, the increased dollar will be refunded
to you if you come to the meeting." [Emphasis supplied.] This witness signed an
authorization to deduct $3 from her salary for dues but did not authorize a deduc-
tion of $4.
Ora Mae Riley has been employed by Dixie for about 5 years as a chicken grader.
She testified that she was a member of Respondent but had never paid any union
dues herself before 1962, and no union dues had been deducted from her salary
prior to 1962. Dixie had paid these sums of money itself. However starting in
February 1962, Dixie had been deducting $4 a month from her paycheck. When she
received paycheck in February which had the first dues deduction of $4, she and 8 or
10 other employees went to Mr. Boswell, the general manager of Dixie. They
asked him about the $4 being taken out of the paychecks and he told them he had
received a letter that the dues "would be increased from $3.00 to $4.00 per month and
that there was nothing that he could do about it." She asked Mr. Vicknair why the
dues were raised from $3 to $4 and he told her, ". . . that it was for the purpose
of making the people come out to meetings .. Mrs. Riley testified that O. B.
Comager told her it was his idea to have the $1 taken out of the paychecks and "it
was only to make us come to the meetings, and if we came to the meetings we would
get our $1.00 back." [Emphasis supplied.] "0. B." told this to the meeting in March
at the time when Mrs. Riley attempted to get a reduction of the dues from $4 to $3.
Union officers were present at this meeting. Respondent's president at that time,
Willie Robertson, required those who attended the meeting to sign their names on a
tablet.
She testified that before February 1962, Mrs. Boswell told a group of the employees,
including Mrs. Riley, that he would not make these employees pay union dues when
they did not want to join the Union but that Dixie would pay the dues for them.
Because Dixie was paying the dues for her, she signed a card joining the Union and
considered herself a member because, ".. . it was his money and he was not getting
it back and he was doing it as a favor."
Lillian Howard, employed by Dixie as a lung puller , corroborated the testimony of
Mrs. Riley and in particular testified that "0. B." stood up and explained the reason
for raising the dues was "for getting members to attend the meetings . If they
attended the meetings the dollars would be returned at the meeting each month."
[Emphasis supplied.]
The practice of the Company in deducting the dues, as stipulated to by the parties,
was to deduct the dues from the last paycheck the employee receives in a month
and the dues deducted from that last paycheck were the dues for the preceding
month.
Lutishia Dixon, Respondent's recording secretary, was called as a witness by
Respondent and testified that the dues were raised from $3 to $4 at the January
meeting and the purpose for the dues increase "was to increase the attendance of
the members to come out and for the raising of the treasury, to build a treasury."
She testified that no vote had been taken by the membership on returning $1 to a
member that attended the meeting. However I do not credit this testimony as
the minutes of the meeting prepared by her for the meeting on January 15, 1962,
states "Mr. O. B. put the question about the member paying $4 00 per month every
time he or she doesn't come to meeting, and if he or she comes to meeting, he will
receive the sum of $1.00 back at the meeting." She was confused in her testimony
because although the minutes show the vote was taken at the January meeting, her
testimony was to the effect that it was in February when a vote was taken. Yet the
letter to Dixie dated January 17, 1962, refers to the fact that beginning February 1,
1962, the dues would be $4 per member per month. When presented with the
UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 777
copies of the minutes of the meeting she changed her testimony and testified that the
increase in dues was voted on in the January meeting. She testified that starting in
March a list was kept of the people who attended the meetings ; that $ 1 was paid in
cash to each member ; and that no receipt was taken for this sum.
Johnnie B. Wilson, Respondent 's treasurer , testified that the dues increase of $4
was effective for the month of February but the return of, "the $1.00 out of the
$4.00" first took place at the March meeting. She also testified that the Respondent
had two reasaons for raising the dues namely , "to try to get the members to come
out to the meetings . To build up the treasury." She testified that instead of issuing
receipts that those attending the meeting would sign in and when the meeting was over
their names would be called and they would be presented with $1. Also that the
$1 refund was given to anyone who had a "legal" excuse for not having attended
the meeting.
C. Conclusions as to Why the Dues Were Increased to $4
I conclude from the above testimony that the resolution raising the dues from $3 to
$4 was passed at the regular meeting of the membership on January 15, 1962; the
increased dues were paid beginning February 1, 1962 ; and starting at the regular
meeting in March , Respondent had refunded $1 to each person who attended a regular
-monthly meeting. I further find that one of the reasons the dues were raised to $4
was to make the members attend the meetings . In making this finding I credit the
testimony of Mrs. Riley and Lillian Howard as to what O. B. Comager told them as to
why the dues were raised. This is corroborated by the meeting minutes of January 15,
1962 , that a union member would pay $4 if "... he or she doesn 't come to meeting,
and if he or she comes to meeting , he will receive the sum of $ 1.00 back at the
meeting."
I find that the membership decided to give back $ 1 of the new $4 dues to each
member who attended a regular monthly meeting and this decision was made at the
same time and was part of the decision to raise the dues to $4. The use of the
language, "he will receive the $1 .00 back at the meeting," shows the raise in dues was
only to fine nonattending members because the raise would be returned to members
attending the meeting . In effect there was no raise at all for members attending
meetings and for excused members.?
The General Counsel submits that the practice standing alone of increasing the
union dues from $3 to $4 and the return of $1 to each member who attended the
meetings would be sufficient to make a finding that a fine was being imposed against
members who did not attend union meetings . I find it unnecessary to rule on this
point as it is clear from the above evidence that the facts substantiate a conclusion that
it was the Respondent's intent , when establishing and enforcing this policy, that it was
to be a scheme to fine members for nonattendance at union meetings.
The Respondent 's theory apparently is that the dues increase should not be con-
sidered a fine because first , the dues were increased not only to encourage attendance
at meetings , but also to build up the Union 's treasury; and second , that the decision to
remit $ 1 to each person who attended the monthly union meeting was not made nor
even discussed until the February meeting, which was 1 month after the Union voted
to increase its dues.
Considering the second proposition first Respondent 's witnesses Dixon and Wilson
were the only ones that testified that the refund was first broached in February but,
as noted above , I do not credit this part of their testimony . Their testimony was
evasive and I was no impressed by their demeanor. They impressed me with being
interested in the legal position of Respondent more than in the bare truth. Addi-
tionally , the very minutes of the meeting of January refers both to the raising of the
dues from $3 to $4 and to the return of $1 to members who attend the meetings.
On the other hand, the minutes of the February meeting make no reference of remit-
ting $1 dues to members who attend the meeting . The only reference in the minutes
of this month came under "unfinished business" and related to returning $ 1 to mem-
bers who could not attend because of sickness . Inasmuch as this came under the
category of "unfinished business" I must conclude that the membership had previously
9I do not credit the testimony of Respondent 's witnesses such as that of the treasurer,
Johnnie B. Wilson, that no vote had been taken on giving a $1 refund to those attending
the meeting but rather that only the officers agreed that it would be a good idea to give
a $1 refund. Johnnie B . Wilson was asked "by what authority did you give the $1 00
back to the people if it was not voted on." She replied , "Well, since all of the officers had
agreed it would be a good idea to give them $ 1 00 refund , see, we went on and did it
We didn't have a vote by anybody."
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided for the remission of $1 to each member who attend the monthly meeting and
that the action of February was nothing more than the expansion of existing policy.
As to the first proposition that the increase in dues was not a fine because, in
addition to wanting to encourage attendance at meetings , Respondent wanted to
increase its treasury, the General Counsel argues that Respondent's conduct was in
no way motivated by a desire to build up its funds. I find merit in this position.
By the very nature of the practice, an increase in Respondent's funds was dependent
upon the failure of the system to encourage attendance at union meetings-a reason
the practice was commenced. Any fine has a secondary effect of building up the
treasury when the proscribed act is committed. In any event, it is immaterial, as
the General Counsel maintains, that there are two reasons why Respondent would
adopt a plan if one of the reasons is found to be illegal. By conditioning employ-
ment upon the payment of a fine for nonattendance at union meetings, the Act is
violated.
In The Electric Auto-Lite Company,8 the Board concluded that an increase in
dues constituted a fine for nonattendance at union meetings . In that case the union
had duly passed a motion increasing the regular monthly dues from $1.50 to $2
for the announced object of encouraging attendance at meetings by exonerating
members attending meetings from payment of the 50-cent increase while requiring
absentee members to pay this amount to the union. In that case the union did
not notify the employer that union dues had been increased nor did the union
ever collect monthly dues, as such, in the increased amount. The General Counsel
contends that the Auto-Lite case is not distinguishable from the instant case. He
points out the minor difference that in Auto-Lite the members were exonerated from
paying additional "dues" if they attended the union meeting, while, in the instant
case, all members paid the additional "dues" but those attending the meetings were
returned the increased charge.
In reaching its decision in Auto-Lite the Board stated: 9
Like the Trial Examiner, we believe that, regardless of the means adopted to
institute this charge, the necessary and intended effect was to fix a penalty
upon those members who did not attend the monthly meetings. We cannot
consider such a charge, with the conditions attached, as regular monthly
dues. In our opinion, it is nothing other than a fine.
In the instant case , Respondent deliberately raised the monthly dues for the
purpose of returning the raise to members who attended the meeting. Accordingly
it must of necessity impose a penalty against members for not attending the union
meetings.
The Board has held that
If the union imposes . . . qualifications and conditions for membership [other
than the payment of periodic dues and initiation fees] with which [an employee]
is unwilling to comply, such an employee may not be entitled to membership,
but he is entitled to keep his job. Throughout the amendment to the Act,
Congress evinced a strong concern for protecting the individual employee in a
right to refrain from union activity and to keep his job even in a union shop.
Congress carefully limited the sphere of permissible union security, and even
in that limited sphere accorded the union no power to effect the discharge
of nonmembers except to protect itself against "free rides." (Union Starch &
Refining Company, 87 NLRB 779, 784; enfd. 196 F. 2d 1008 (C.A. 7); cert.
denied 342 U.S. 815).
Likewise the rights guaranteed individuals are endangered of being diminished
if a labor organization is permitted to maintain a discount system The Eighth
Circuit of Appeals in Spector Freight System, Inc.,19 commented on the Auto-Lite
case above as follows:
It is possible that a "discount" system of fixing dues would be open to abuse,
inasmuch as dues could be set at higher figures, with discounts allowed for
compliance with various internal rules of the Union, thus indirectly accom-
plishing foreseeable collection of fines or performance of union duties.
The Board has held that a labor organization restrains and coerces employees
within the meaning of Section 8(b)(1) (A) when it demands that employees pay
8 92 NLRB 1073; enfd. 196 F. 2d 500 (C.A. 6) ; cert. denied 344 U S 823.
B 92 NLRB at 1074.
10 273 F. 2d 272, footnote 3.
UNITED PACKINGHOUSE, FOOD, ETC., LOCAL 673 779
fines under the guise of a dues "discount" system.ll The "rebate" system in the
instant case has the same effect as the "exoneration" 12 system in the Auto-Lite case
or the "discount" system in the Bakery case. All three systems are merely guises
to defeat the purposes of the Act. All three systems are merely methods utilized
to collect fines in the name of dues. Patently, all three systems defeat the Act's
purposes, since labor organizations were authorized to make the payment of periodic
dues and initiation fees a condition of employment only in an effort to prevent "free
rides." 13
As the payment of the dues under the contract, was a condition of employment
and as the Respondent had notified Dixie that it expected to enforce the contract
and since the increase amounted in effect to a fine, the Respondent's demands on
employees to pay the $1 increase in "dues" constituted restraint and coercion
within the meaning of Section 8(b) (1) (A) of the Act. So long as union member-
ship is a condition of employment, fines cannot be collected rather only "periodic
dues . . . uniformly required ..
Section 8(b) (2) of the Act makes it an unfair labor practice for a labor organiza-
tion ". . . to cause or attempt to cause an employer to discriminate against an em-
ployee in violation of subsection (a)(3) ... I believe that if an employer
withheld $1 from the pay of his employees who refused to attend union meetings,
even if he received no request from a union to do so, he would obviously and unlaw-
fully encourage union activity in violation of Section 8(a) (3) of the Act. According-
ly, Respondent by causing and attempting to cause Dixie to deduct a fine from the
employees' pay violated Section 8(b)(2) of the Act since by this conduct the
Respondent caused Dixie to discriminate against his employees in order to encourage
membership and activities in behalf of Respondent. While there is no evidence in
the record which shows that the specific intent of the Company in deducting the $1
fine was motivated by a desire to discriminate against its employees, such lack of
proof is not fatal, since the act, itself, proved the discrimination. 14
Similarly, the Radio Officers' case stands for the proposition that it is immaterial
that some of the employees are already members of the labor organization.
D. Implicit Modification of the Collective-Bargaining Agreement
The complaint alleges and the answer admits that the employees of Dixie have
been and are required to pay the $1 increase in monthly "dues" (i.e., a fine) as a
11 Bakery & Confectionery Workers, International Union of America , Local 12, 115
NLRB 1542; enforcement denied 245 F. 2d 211, 212 (C.A. 3) (in the absence of a show-
ing that $1 increase did not represent dues).
12 The system used in Auto-Lite is not a true discount system as was used in the Bakery
case . The Auto -Late system might better be described as an "exoneration " system and
lies between the "discount" in Bakery and the "rebate" system in the instant case. Like
this case and unlike Bakery, the motion passed in Auto-Late actually raised all members'
dues by 50 cents and contained no proviso for a discount . Like Bakery and unlike the
case at bar , in Auto-Lite all the members did not pay the same amount of dues In this
latter respect Auto -Lite can be distinguished from Bakery by how a member escaped
paying the additional charge. In Auto-Lite all members' dues were the regular dues
(I e., dues prior to the increase ) plus the standard increased amount, but one was "ex-
onerated" from paying the increased amount ( i.e., fine ) if he performed the act the union
required ; i e , attended the union meeting for the month . In Bakery, the dues for a
member who paid them in the month in which they accrued, was charged the regular rate
(amount before the motion was passed ) of dues; however, for members who failed to pay
their dues during the month in which they accrued, the "dues" were regular dues plus
the increase ( i.e., fine).
13 See the Legislative History of the 1947 amendments as discussed in Union Starch &
Refining Company , supra.
14 Both the Board and the courts have recognized that proof of certain types of dis-
crimination satisfied the intent requirement. This recognition that specific proof of in-
tent is unnecessary where employer conduct inherently encourages or discourages union
membership is but an application of the common law rule that a man is held to intend
the foreseeable consequence of his conduct .... Thus an employer 's protestation that
he did not intend to encourage or discourage must be unavailing where a natural con-
sequence of his action was such encouragement or discouragement . Concluding that en-
couragement or discouragement will result, it is presumed that he intended such con-
sequence. In such circumstances intent to encourage is sufficiently established . (Radio
Officers' Union, etc., 347 U.S. 17.)
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment. The General Counsel submits that Respondent and Dixie
implicitly modified their collective-bargaining agreement so as to require the payment
of this fine as a condition of employment. Accordingly it is the General Counsel's
position that by maintaining and enforcing the agreement as modified, Respondent
additionally violated Section 8(b)(1)(A) and (2) of the Act.15 I do not agree.
I do not feel there was any modification of the collective-bargaining agreement.
The collective-bargaining agreement is good on its face and as soon as Respondent
ceases and desists from including the payment of a fine with dues as a condition
of employment the unfair labor practice will cease. The side agreement, however,
is invalid as noted above, and I will order it discontinued.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations 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 obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Respondent does now and since February 1, 1962, has
been charging dues of $4 per month and refunding $1 per month to members who
attend the monthly meeting and having found that this amounts in effect to a fine
of $1 per month to members who do not attend the meeting and having found
that the payment of this fine is conditioned upon employment of the member, it
will be recommended that Respondent be required to cease giving effect to the side
agreement dated February 2, 1961, between it and J-M Poultry Packing Company,
Inc., requiring certain employees to pay union dues or requiring the employer to
pay the dues for them; that the resolution of Respondent adopted in the union
meeting of January 15, 1962, raising the dues to $4 and refunding the $1 to
members attending meetings be rescinded in accordance with Local 611, Interna-
tional Brotherhood of Teamsters, etc (White Baking Company), 125 NLRB 1392,
1394; and that the membership be fully informed that no like or related action
should be taken in the future.
In order to remedy Respondent's unlawful conduct, I shall recommend that
Respondent reimburse the employees for all dues in excess of $3 per month
collected after February 1, 1962, and not returned to members who attended
the monthly meetings. Also in accordance with the Board's decision in Isis Plumb-
ing & Heating Co., Inc., 138 NLRB 716, and Quality Coal Corporation, et al., 139
NLRB 492, I shall include an allowance for interest thereon, such interest to be com-
puted in the manner set forth in Seafarers International Union, 138 NLRB 1142.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. J-M Poultry Packing Company, Inc., d/b/a Dixie Broiler Company is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
3. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, Respondent has engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act.
4. By causing or attempting to cause Dixie to discriminate against an employee
in violation of subsection (a) (3) by deducting a fine from the employees' pay,
Respondent has engaged in unfair labor practices within the meaning of Section
8(b)(2) 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.]
'6 Convazr, a Division of General Dynamics Corporation , et al, 111 NLRB 1055; en-
forcement denied on other grounds 241 F. 2d 695 (C A 9).