Aluminum Workers International Union

National Labor Relations Board - Board Decisions

Feb 1, 1955

111 N.L.R.B. 411 (N.L.R.B. 1955)

ALUMINUM WORKERS INTERNATIONAL UNION 411
WE WILL NOT cause or attempt to cause M . B. Morgan, his agents, suc-
cessors, or assigns, or any member of the PDC of A to discriminate in regard
to the hire or tenure of employment of G. J. McDaniels or any other employee
or prospective employee in violation of Section 8 (a) (3) of the said Act.
WE WILL NOT in any manner restrain or coerce employees of M. B. Morgan,
d/b/a M. B. Morgan Painting Contractor, his successors and assigns , in their
exercise of the right to self-organization , to form labor organizations , to join
or assist any labor organization , to bargain collectively through representatives
of their own choosing , to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any or
all such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL make G. J. McDaniels whole for any loss of pay suffered by reason
of the discrimination against him.
BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS
OF AMERICA , LOCAL 902, AFL,
Labor Organization.
Dated---------------- By----------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
ALUMINUM WORKERS INTERNATIONAL UNION, LOCAL No. 135, AFL
and LEONA H. BONESS. Case No. 13-CB-303. February 1, 1955
Decision and Order
On August 5, 1954, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor practices within
the meaning of Section 8 (b) (1) (A) and (2) of the Act and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the Intermediate Report and a
supporting brief.
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. However, the Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case and hereby reverses the Trial Examiner for the reasons
hereinafter noted.
The Trial Examiner found that the Respondent did not violate
Section 8 (b) (1) (A) and (2) of the Act by wrongfully causing the
discharge of Boness, the complainant. In reversing the Trial Exam-
iner, we do so solely on the ground that Boness, on September 9, 1953,
made a proper tender of dues which was rejected by the Respondent.
As we deem it unnecessary to consider the various grounds upon which
the Trial Examiner based his finding of no unfair labor practice,
we do not adopt his Intermediate Report other than that portion
which relates to the facts surrounding the discharge.
111 NLRB No. 63.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As set forth in the Intermediate Report, the Respondent Union's
constitution and bylaws provide for automatic suspension of members
after 2 months' delinquency in monthly dues, and further provide
that "the reinstatement fee for suspended members shall not be less
than fifteen (15) Dollars."' On September 1, 1953, the complainant
became automatically suspended from the Union. On September 9,
1953, the complainant tendered her dues for July, August, and Septem-
ber. These dues were returned to her on September 10, 1953, with a
note stating "no union dues acceptable except at union meetings." 2
Nothing was said about payment of a reinstatement fee. Not until a
subsequent tender of dues on September 24, 1953, which was also re-
fused, was she put on notice that the Union would not accept her dues
until she paid a $15 reinstatement fee. In fact, the record does not
indicate that prior to that time the Union had set the amount to be
paid under the reinstatement provision of its constitution and bylaws.
In view of the fact that Mrs. Boness tendered her delinquent and
current dues on September 9, 1953, acceptance of which was refused
for reasons unrelated to the payment of a reinstatement fee which was
not demanded until 2 weeks later, we find that the complainant on
that date did all that she was required to do to cure her delinquency.
We therefore conclude, contrary to the finding of the Trial Examiner,
that, as proper tender of dues was made prior to the Respondent
Union's request for discharge, and as this tender was refused by the
Respondent, the Respondent Union's subsequent act in causing the
complainant's discharge was unlawful and a violation of Section 8
(b) (1) (A) and (2) of the Act.'
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, which have been
found to constitute unfair labor practices occurring in connection with
the operations of the Company, described in the Intermediate Report,
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 of commerce.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist from this and
like and related conduct, and to take certain affirmative action designed
to effectuate the policies of the Act.
1 Emphasis supplied.
a Although a constitutional provision provides that dues are due and payable on the
first regular monthly meeting , it nowhere appears that a union member is precluded from
paying his dues other than at a union meeting, such as may be inferred from the Union's
note.
s See Biscuit and Cracker Workers Local Union No. 405, AFL, 109 NLRB 985.
ALUMINUM WORKERS INTERNATIONAL UNION 413
We shall order the Respondent to make Leona Bones' whole for any
loss of pay suffered by her as the result of the Union' s unlawful con-
duct, by paying to her a sum of money equal to the amount she would
normally have earned as wages from the date the discrimination oc-
curred to the date she is reinstated by the Corporation in accordance
with the latter's normal business operations. In computing the
amount of back pay due to the Charging Party for this period, the
customary formula of the Board set forth in F. W. Woolworth Com-
pany, 90 NLRB 289, shall be applied. As the Trial Examiner did
not find that the Respondent Union had discriminated against the
Charging Party, the period from the date of the Intermediate Report
to the date of the Order herein shall, in accordance with our usual
practice, be excluded in computing the amount of back pay due her'
We shall further provide that the Union may terminate its liability
for further accrual of back pay to the Charging Party by notifying
the Corporation and the Charging Party that it has no objection to
her reinstatement. The Union shall not thereafter be liable for any
back pay accruing after 5 days from the giving of such notice.'
In addition to computing the back pay due Leona Boness, the Re-
spondent shall deduct from the amount payable to Boness such sum
as would normally have been deducted from her wages for deposit
with State and Federal agencies on account of social security and other
similar benefits. The Respondent shall pay to the appropriate State
and Federal agencies to the credit of Boness, and The Metal Ware
Corporation, a sum of money equal to the amount which, absent dis-
crimination, would have been deposited to such credit by the Corpora-
tion, either as a tax upon the Corporation or on account of deductions
made from Boness' wages by the Corporation on account of such social
security or other similar benefits.'
CONCLUSIONS OF LAW
1. The Metal Ware Corporation , a Wisconsin corporation, is en-
gaged in commerce within the meaning of the Act.
2. Aluminum Workers International Union, Local No. 135, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. By restraining and coercing employees of the Company in the
exercise of rights guaranteed by Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
4. By causing and attempting to cause The Metal Ware Corpora-
tion to discharge Leona Boness, Respondent Union has engaged in,
d Utah Construction Co., 95 NLRB 196.
s Pinkerton's National Detective Agency, Inc., 90 NLRB 205; Local Union 595, Inter-
national Association of Bridge, Structural and Ornamental Iron Workers, AFL, 109
NLRB 73.
6 Pen and Pencil Workers Union, Local 19593, AFL , 91 NLRB 883.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is engaging in, unfair labor practices within the meaning of Sec-
tion 8 (b) (2) of the Act.
5. The aforesaid labor practices affect commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
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 the Respondent, Aluminum Work=
ers International Union, Local No. 135, AFL, and its officers, repre-
sentatives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause The Metal Ware Corporation
to discriminate against its employees in,violation of Section 8 (a) (3)
of the Act.
(b) Restraining or coercing the employees of The Metal Ware
Corporation in the exercise of any right guaranteed in Section 7 of
the Act, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify Leona Boness and The Metal Ware Corporation, in writ-
ing, that the Respondent withdraws all objections to the employment
of Leona Boness and that it requests The Metal Ware Corporation to
offer Boness immediate and full reinstatement to her former or sub-
stantially equivalent position.
(b) Make whole Leona Boness for any loss of earnings suffered
since November 19, 1953, by reason of discrimination against her, in
the manner set forth in the section entitled, "The Remedy."
(c) Post at its business office in Two Rivers, Wisconsin, and all
other places where notices to its members are customarily posted, cop-
ies of the notice attached hereto marked "Appendix." ° Copies of
said notice, to be furnished by the Regional Director for the Thir-
teenth Region, shall, after being duly signed by an official representa-
tive of the Respondent Union, be posted immediately upon receipt
thereof and maintained for a period of sixty (60) consecutive days
thereafter in conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall be taken by
the Respondent Union to insure that said notices are not altered, de-
faced, or covered by any other matter.
I 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."
ALUMINUM WORKERS INTERNATIONAL UNION 415
(d) Mail to the Regional Director for the Thirteenth Region signed
copies of the notices attached hereto marked "Appendix," for posting,
The Metal Ware Corporation willing, at said Corporation's Two Riv-
ers, Wisconsin, plant, in places where notices to employees are cus-
tomarily posted.
(e) Notify the Regional Director for the Thirteenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
Appendix
NOTICE TO ALL EMPLOYEES OF THE METAL WARE CORPORATION, Two
RIVERS, WISCONSIN, AND TO ALL MEMBERS OF ALUMINUM WORKERS
INTERNATIONAL UNION, LOCAL No. 135, AFL
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 the employees that :
WE WILL NOT cause or attempt to cause The Metal Ware Corpo-
ration to discriminate against employees in regard to their hire
or tenure of employment, or any term or condition of employment,
in violation of Section 8 (a) (3) of the National Labor Relations
Act.
WE WILL NOT restrain or coerce employees of The Metal Ware
Corporation in the exercise of any right guaranteed under Sec-
tion 7 of the Act, including the right to refrain from engaging in
any or all of the activities guaranteed thereunder, except to the ex-
tent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole Leona Boness for any loss of earnings suf-
fered as a consequence of the discrimination against her.
WE WILL notify Leona Boness and The Metal Ware Corpora-
tion, in writing, that we have no objection to the employment of
Leona Boness and request that the Company offer to her im-
mediate and full reinstatement to her former or substantially
equivalent position.
ALUMINUM WORKERS INTERNATIONAL UNION,
LOCAL No. 135, AFL,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by Leona H. Boness, an individual, the General Counsel for the
National Labor Relations Board issued a complaint on April 22, 1954, alleging that
Respondent Local No. 135, Aluminum Workers International Union, AFL, has vio-
lated Section 8 (b) (1) (A) and (2) of the Labor Management Relations Act, 1947,
61 Stat. 136, herein called the Act. Copies of the complaint and the charge were
served upon Respondent Local, and Respondent Local has filed an answer denying
the commission of the unfair labor practices alleged.
Pursuant to notice, a hearing was held in Two Rivers, Wisconsin, on May 26, 1954,
before the duly designated Trial Examiner. The General Counsel and the Respond-
ent were represented by Counsel and all parties had full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the is-
sues. The parties were given opportunity at the close of the hearing to present
oral argument, and both the General Counsel and the Respondent have filed briefs
with the Trial Examiner. Motions by the Respondent to dismiss the complaint are
disposed of in accordance with the following findings of fact and conclusions of law.
Upon the record in the case, and upon observation of the demeanor of witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Metal Ware Corporation, herein called the Company, is a Wisconsin corpora-
tion with a plant in Two Rivers, Wisconsin, where it is engaged in the manufacture
of kitchenware and electrical appliances. The value of the Company's interstate pur-
chases and shipments in 1953 exceeded $250,000 and $1,000,000, respectively.
I find that the Company is engaged in commerce within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent Local 135 entered into certain union-
security agreements in 1953 and thereafter caused Leona Boness to be discharged in
November 1953 because of her failure to maintain her union standing as allegedly
required by such agreements. The General Counsel attacks the legality of the agree-
ments and the discharge on the ground that Respondent Local 135 had never achieved
compliance with the filing and affidavit requirements of Section 9 (f), (g), and (h)
of the Act until after the discharge in question.
Section 8 (a) (3) provides, in pertinent respects, that an agreement which re-
quires union membership as a condition of employment following the "effective date
of such agreement" is unlawful unless the "labor organization . has at the time
the agreement was made or within the preceding 12 months received from the Board
a notice of compliance with Section 9 (f), (g), and (h)... .
A. Organizational and contract history of Respondent Local 135
In May 1952 the Company entered into a 2-year collective-bargaining agreement
with Federal Labor Union #20678, International Council of Aluminum Workers
Unions, AFL. Federal Labor Union #20678 was in compliance with Section 9 at
the time, and it maintained such compliance until December 31, 1952. This May
1952 contract covered the usual matters of collective bargaining, including a pro-
vision that all employees covered by the agreement shall, as a condition of employ-
ment, be "members in good standing" in the Union and that new employees shall
become such members after 30 days' employment.
In February 1953, the International Council, with which Federal Labor Union
#20678 was affiliated, was chartered as an International Union by its parent or-
ganization-the American Federation of Labor-and its name became Aluminum
Workers International Union, AFL. This change from International Council to In-
ternational Union did not come about because of any rival unionism or organizational
schism or defunctness or the like; rather, the change was a normal organizational de-
velopment under American Federation of Labor aegis and was in fulfillment of that
portion of the Council's preamble which provided that the Council was organized
under the American Federation of Labor "for the purpose of obtaining an Interna-
tional Charter from the American Federation of Labor."
Shortly after receiving its charter, Aluminum Workers International Union, AFL,
held its constitutional and first annual convention in March 1953. Accredited repre-
ALUMINUM WORKERS INTERNATIONAL UNION 417
sentatives from all federal labor unions affiliated with the Council, including Federal
Labor Union #20678, were present, and they adopted the International Union's con-
stitution, with some differences between the constitutions of the Council and the In-
ternational Union. The International Union constitution prescribes bylaws for its
local union affiliates, article XII of such bylaws providing, in part, that:
All federal labor unions of workers within the jurisdiction of the International
Union which are in existence at the time this constitution is adopted, shall affil-
iate with this International Union within thirty (30) days. In so affiliating, such
federal labor unions shall relinquish their federal charters and seals and obtain
local union charters and seals from the International Secretary-Treasurer, and
all persons holding good standing membership in such federal labor union shall
become members of the Local Union receiving such charter. Any such fed-
eral labor union affiliating with the International Union shall retain its entire
assets, including its real, personal and intangible property, and including all col-
lective bargaining agreements, and all of its liabilities, but in connection with
all such assets, agreements, and liabilities and for all other purposes such federal
labor union affiliating with the International Union shall take all necessary steps
to effect a change in its name and number to conform with the name and num-
ber appearing on the Local Union charter issued it by the International Union.
Such federal labor unions having established defense funds may preserve, main-
tain and continue such funds upon affiliation with the International Union.
In March 1953, after the International Union's constitutional convention, mem-
bers of Federal Labor Union #20678 unanimously approved the change from Coun-
cil to International and, in accordance with the aforestated article XII, they ob-
tained a new charter and seal from the International and became Aluminum Workers
International Union, Local No. 135, AFL. At or about the same time in March
1953, the membership of Respondent Local No. 135 also unanimously adopted a
local constitution and bylaws-identical in substantial respects to the constitution
and bylaws of Federal Labor Union #20678. The officers of Federal Labor Union
#20678 automatically carried over as officers of Respondent Local No. 135 without
an election, and Respondent Local 135 otherwise carried over, with unbroken con-
tinuity, the internal functioning and financial position of Federal Labor Union
#20678. As in the case of the Council and International, the change in name from
Federal Labor Union #20678 to Local No. 135 was merely an organizational inci-
dent stemming from the grant of an International charter to the Council, and not
because of any rival unionism or schism or defunctness at the local or any other
level.
The constitution adopted by Respondent Local 135 in March 1953 provides, among
other things, that members are in good standing "until expelled or suspended and
not reinstated" (Federal Labor Union #20678 had an identical constitutional pro-
vision); that members are "automatically suspended upon becoming two months
delinquent in dues" (Federal Labor Union #20678 had a 3-month period); that
Respondent shall not accept any dues until the member first pays any reinstatement
fee owed by such member (Federal Labor Union #20678 had an identical pro-
vision); and that the reinstatement fee for suspended members shall not be less
than $15 (Federal Labor Union #20678 had a similar provision).
Also, in March 1953, the International Union advised the Board of its change
in name from International Council, and the International Union has been in com-
pliance at all times since April 1953.1 The organization entitled Local No. 135,
Respondent herein, first achieved compliance under such name in April 1954.
The Company and Respondent Local No. 135 maintained the aforementioned
1952 agreement upon Respondent's change in name in March 1953. In May 1953
they agreed upon, and in December 1953 they executed, a "Supplement" to the
1952 agreement which, it is recalled, ran until May 1954. The 1952 supplement
provided that "the identification of the `Union' (in the May 1952 Contract) shall
be Aluminum Workers International Union, Local No. 135"; that articles V, IX,
and X of the May 1952 agreement, dealing with vacations, grievances, and wages
be amended in certain respects, effective May 18, 1953; and that article XI, the
duration clause of the 1952 agreement, be amended by adding a provision that,
effective as of September 15, 1953, the Union and the Company agree to extend
the "present contract" to May 16, 1955, with reopening for wages and fringe benefits
in accordance with article X of the contract. No amendment or other reference
was made to other substantive provisions of the May 1952 agreement, including the
union-security provisions thereof. And in settlement of a strike begun in late August
1 Based on information from the Board's compliance section in Washington, D. C.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1953, Respondent Local 135 and the Company executed a "Settlement Agreement" on
September 15, 1953, in which the parties agreed upon the method of recalling em-
ployees; amended article IX of "the existing Labor Contract" to contain a no-strike
provision (identical with a provision contained in the aforementioned Supplement);
and also agreed to extend the "present contract" to May 16, 1955 (as similarly
provided in the supplement).
B. Contract and compliance issues
The General Counsel asserts that Respondent Local 135 is a "new" labor organiza-
tion which did not come into being until March 1953; and he thereupon claims that
the 1953 supplement and settlement agreement were "new" agreements with such
"new" organization, which "new agreements" incorporate the union-security pro-
visions of the 1952 agreement of Federal Labor Union #20678. Accordingly, con-
tends the General Counsel, these 1953 union-security agreements were unlawful
because of Respondent's failure to achieve Section 9 compliance until April 1954.
As these agreements were unlawful for such reason, the General Counsel continues,
they may not justify Respondent's causing the discharge of Boness in November
1953 for her loss of "good standing" in the Union as such contracts require. The
General Counsel concedes, however, apart from compliance considerations, that
the foregoing contract conditions of employment, including dues and reinstatement
fee requirements, are otherwise valid. See Food Machinery and Chemical Corpora-
tion, 99 NLRB 1430.
Respondent claims that it and Federal Labor Union #20678 are one and the same
labor organization and it accordingly denies that the 1953 supplement and settle-
ment agreement were made by it as a "new" labor organization. Respondent there-
upon asserts that the only material compliance date is the effective date of the 1952
agreement upon which it relies in justifying its conduct as to Boness, and it claims
in this connection that it was in compliance at that time under the name of Federal
Labor Union #20678 and was therefore entitled to invoke the 1952 agreement against
Boness. Because, however, this organizational relationship asserted by Respondent
relates to the ultimate issue as to whether the 1952 compliance status of Federal
Labor Union #20678 inures to the benefit of Respondent Local 135 in 1953, the
General Counsel claimed at the hearing that such issue and related evidence is beyond
the proper scope of this proceeding in view of the established principle that com-
pliance matters are solely for the Board's administrative determination and may not
be litigated in complaint or representation cases. See Coca-Cola Bottling Company
of Louisville, Inc., 108 NLRB 490, N. L R B v. Sharples Chemicals, Inc., 209 F.
2d 645, 650-651 (C. A. 6); American Rubber Products Corp. v. N. L. R. B., 214 F.
2d 47 (C. A. 7).
The nonlitigabihty rule asserted by the General Counsel was formulated in cases
where a party sought to attack the Board's administrative determination as to the
compliance status of either a petitioning union in a representation context or a charg-
ing union in an unfair labor practice proceeding. Here, however, the General
Counsel alleges noncompliance of a party respondent and predicates the unfair labor
practice allegation on such ground. It would seem a deprivation of due process to
deny a party respondent an opportunity to litigate the merits of the very matter
at issue. Moreover, the litigability of compliance matters in the present context
seems warranted by the so-called "fronting" cases, where parties are permitted to
show that a noncomplying union is the real party in interest in whose behalf a
nominal petitioner or charging party filed a petition or charge. See American
Rubber Products Corp. v. N. L. R. B., supra. For what Respondent seeks to do
here is to show that its organization was the real party in interest to the 1952 con-
tract and to Federal Labor Union's compliance status, by whatever name it be
called. I therefore deny the General Counsel's motion to strike the evidence set
forth above respecting the organizational nexus between Respondent Local 135 and
Federal Local Union #20678. And I also reject the General Counsel's additional
contention that the Board is itself precluded from looking beyond the name of a
labor organization in determining its compliance status under a different name.
Under the General Counsel's view, should a labor organization change only its name
while it is in compliance with Section 9, the same organization newly named would
automatically and for all purposes fall out of compliance until it makes a com-
pletely new filing under its new name, no matter what the circumstances may be.
I cannot accept such asserted proposition of law which would, in effect, strip the
Board of the exercise of all judgment in compliance matters regardless of unusual
or mitigating considerations and which would thus limit the Board's function in
these respects solely to that of a clerk even in a case where alleged noncompliance
is the very basis upon which a complaint has been issued.
ALUMINUM WORKERS INTERNATIONAL UNION 419'
A change in name, or constitutional changes such as were made here and which
a union may make without changing its name, or a change in the name of its-imme-
diate parent affiliate, all within the structure of the same parent federation (in this
case, the American Federation of Labor), do not, without more, change the essential
character of a labor organization or affect its status under the Act.2 I conclude,
therefore, that the International Council and the International Union are the same,
labor organization and that Federal Labor Union #20678 and the Respondent are a
unity as well, and that the "continuity of organization" between these organizations
was preserved despite the changes in question. See Continental Oil Co. v. N. L. R. B.,
supra. Respondent Local 135 was therefore the labor organization party to the
May 1952 contract after March 1953. (See cases cited in footnote 2, above.) And
I further conclude upon all the foregoing, that the compliance and contractual
status of Respondent Local 135 is that of Federal Labor Union #20678 within the
circumstances of this case, and that it was therefore entitled to performance of the
union-security provisions of the 1952 agreement.
The General Counsel further asserts in his brief that, even on the assumption that
Respondent Local 135 occupies the same compliance and contractual position as
Federal Labor Union #20678 and was therefore not a "new" labor organization
when it agreed upon the supplement and settlement agreement in 1953, this supple-
ment and settlement agreement were unlawful, nevertheless, because they renewed
the 1952 union-security provisions during a period (May and September 1953) when
Respondent's compliance had lapsed. (It is recalled that Federal Labor Union
#20678 went out of compliance on January 1, 1953, and that Respondent Local 135
did not come into compliance under such name until April 1954.) However, neither
the 1953 supplement or settlement agreement purport to amend or otherwise affect
the union-security provisions of the May 1952 contract except to extend the effective
term of such provisions until May 1955. As the 1952 agreement was effective until
May 1954, the actual effect of the 1953 supplement and settlement agreement, inso-
far as union-security provisions are concerned, is only to provide for an extension
which does not become operative until May 1954. Nor is Tacoma Harbor Lumber
and Timber Co., 108 NLRB 912, upon which the General Counsel relies, authority
for a contrary interpretation. Unlike the May 1952 contract under consideration
here with its fixed original term of 2 years, the contract in the Tacoma case had no
fixed term; rather, it provided that it "remain in full force and effect as a continuing
agreement" and it was still in operation at the hearing date in that case, more than
13 years after its execution in 1940. The Board's holding that the Tacoma contract
was renewed within the meaning of Section 102 and.8 (a) (3) of the Act on each of
the 13 occasions when the parties agreed to raise wages during the 13 years of the
contract's operation is, therefore, not controlling on the situation at issue in this
case.
The validity of a union-security agreement which does not become operative until
a future specified date depends, I find, on the compliance status of the contracting
union when the provisions become operative and not when the contract is executed.
The situation in this respect is the same, in principle, as a union-security agreement
which postpones the effective date of such provisions until the contracting union
achieves compliance. See Northwest Magnesite Company, 101 NLRB 85, 87-88.
As the union-security provisions of the 1953 supplement and settlement agreement
did not become operative until May 1954, their validity turns on Respondent's com-
pliance status in May 1954; and in May 1954 the Respondent was in compliance with
Section 9 of the Act.
I therefore conclude that the union-security provisions of the May 1952 contract
were lawfully operative in Respondent Local 135's favor in November 1953 when
Boness was discharged and I further find that Respondent Local 135 did not violate
the Act by entering into the 1953 supplement and settlement agreement as alleged
by the General Counsel.
C. The alleged discriminatory discharge
The Respondent changed its constitution and bylaws in March 1953, as already
indicated, to provide automatic suspension of members after 2 months' delinquency
2N L R B v. Harris-Woodson Co, Inc, 179 F. 2d 720, 723 (C. A. 4) ; Continental Oil
Co V N L R B, 113 F. 2(1 473, 477 (C A 10), cert denied on this point, 313 U. S 212;
Ohio Hoist and Manufacturing Company, 108 NLRB 561; New Jersey Oyster Planters
and Packers Association, Inc, 101 NLRB 538; Charles Beck Machine Corporation, 107
NLRB 874.
344056-55-vol 111-28
4 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in monthly dues, as compared with the 3-month period theretofore provided. Mem-
bers iiiiammously approved this change together with other constitutional matters at
the March 1953 membership meeting, and Respondent further advised its members
to this effect by a notice which was posted on the employee bulletin board at the
plant immediately after the change was effective. Each month from the time this
2-month suspension rule went into effect, the Union also posted a notice on the bulle-
tin board listing the names of all members who were delinquent and those who would
be delinquent by the end of the month.
Boness was a union member during her entire employment period of 3 years with
the Company. Her dues were paid up only through June 1953 when her name ap-
peared on the delinquency list posted by Respondent on the plant bulletin board on
August 10, 1953. The Respondent asserts, and the General Counsel admits, that
Boness would be automatically suspended and subject to valid discharge under exist-
ing contract requirements-apart, that is, from the General Counsel's compliance
contentions which I have rejected-unless she tendered her dues before September
1. Boness did not again tender dues until on or about September 10, by which time
she was automatically suspended, and Respondent returned the $6 money order for
the $2 monthly dues for July, August, and September, which Boness had mailed to
Respondent on that occasion. Boness, at that time, also owed a minimum $15 rein-
statement fee because of her automatic suspension for dues delinquency and, as also
stated above, such fee must be paid before arrearages are acceptable. Boness ten-
dered her arrearages to Respondent Local a week later, but again without tender of
the reinstatement fee, and the tender was refused.
On September 21, 1953, Respondent requested the Company that Boness and sev-
eral other named employees be notified of their dues delinquencies and that they
would be subject to discharge unless they regained their good standing in the Union
within a 5-day grace period. Edna Griep, a company official, replied to Respondent
the next day that "our employees are aware of the fact that they need to be in good
standing in the Union" and that the named employees had left their dues at the com-
pany office where they were available to the Union. Such deposit by Boness did not
include a reinstatement fee and Respondent Local 135 did not pick up her dues at
^Gnep's office.
At a union meeting on September 24, 1953, Boness again tendered her $6 arrear-
ages without a reinstatement fee, whereupon Respondent President Lester Tetzlaff
informed Boness on this occasion that the Respondent would not accept her dues
without payment of a $15 reinstatement fee. Boness told Tetzlaff that she did not
have to and "wouldn't" pay a- reinstatement fee and Respondent refused Boness'
tender once more. Boness testified this was the first time she was advised she would
have to pay a reinstatement fee .3 On or about October 10, Boness again tendered
her dues for July, August, and September together with dues for October, November,
and December. Boness advised Respondent on this occasion that she would not pay
,the $15 reinstatement fee, whereupon Respondent again refused Boness' tender.
Finally, on October 27, 1953, and Boness still not having tendered her reinstate-
ment fee, the Respondent notified the Company to discharge Boness for failure to
pay her dues. The Company did not act on the Respondent's request, and on Novem-
ber 4 the International's secretary-treasurer, William Cowley, renewed to Company
-Official Griep the Union's request that Boness be discharged. Immediately after this
conversation between Griep and Cowley the Company sent Cowley a telegram stat-
ing: "Re demand for discharge of [Boness], up to now we have not received notice
that [she has] been expelled from the Union." On receipt of this wire, Cowley noti-
fied Griep that Boness had automatically lost her union standing upon failure to pay
her dues; and Cowley once more demanded Boness' discharge and suggested that the
,company attorney get in touch with the Respondent's attorney, Herbert Thatcher.
8 Boness testified that she was aware of the automatic suspension rule for dues delin-
quency even under the Federal Labor Union's bylaws, but that she had not been aware
of the change from the 3 to 2 months period in such connection. She testified that dur-
ing her entire 3 years' employment she paid her dues on the third month of the 3-month
period, however, the record shows that her first dues payment, after the 2 months rule
was in effect, was made, in May 1953 for the months of April, May, and June. This sole
variation in Boness' payments was in accord with the new 2-month's rule. Boness did not
deny actual knowledge that her name appeared on Respondent's August delinquency
notice at the time of such posting.
ALUMINUM WORKERS INTERNATIONAL UNION 421
The Company meanwhile advised Respondent that it would not discharge an em-
ployee for dues delinquency until such employee were expelled from the Union.
On November 5, according to the testimony of Griep and the stipulated testimony
of Company Attorney Murphy, Murphy thereupon reported to the Company that he
had discussed the matter with Thatcher and that Thatcher had allegedly advised
Murphy to have Boness send her reinstatement fee and her dues to the Respondent.
Thatcher testified that he merely told Murphy that Respondent Local 135 had a right
to demand an employee's discharge for nonpayment of uniform reinstatement fees,
and he denied advising Murphy to have Boness tender her reinstatement fee and
dues.
On November 6, according to the testimony of Boness and other witnesses for the
General Counsel, Boness allegedly sent the Respondent by registered mail three
money orders covering her reinstatement fee and her monthly dues for July through
December. According to Respondent's witnesses, this registered mail contained
monthly payments only and no reinstatement fee. Whether or not a reinstatement
fee was enclosed, Respondent refused the tender. By letter dated November 18, 1953,
the Respondent advised the Company that Boness had been expelled from union
membership and it again requested her discharge. The Company discharged Boness
the following day.
D. Further findings and conclusions as to Boness
The General Counsel admits, by way of recapitulation, that apart from compliance
matters, the dues (including reinstatement fee) requirements of the contract were a
valid condition of employment and that Boness was automatically suspended from
good standing on September 1 and was thereupon subject to lawful discharge unless
she tendered her reinstatement fee before the Respondent requested her discharge.
(See Chisholm-Ryder Company, Inc., 94 NLRB 508, to the effect that a belated
tender does not forestall a valid discharge.) The cutoff date in the present case,
therefore, is October 27 when the Respondent made its first discharge request. It is
irrelevant and therefore unnecessary to decide whether Boness tendered a reinstate-
ment fee on November 6; even if she did, the Respondent is not to be prejudiced be-
cause the Company failed to comply with Respondent's proper demand on October 27
and instead imposed an expulsion condition not required by the contract.
The General Counsel further asserted at the hearing, however, that Respondent
Local 135 had waived the reinstatement fee and it relied in this connection on Griep's
version of the Thatcher-Murphy conversation, the fact that the August 10 delin-
quency notice did not specifically state that Boness would have to pay a reinstate-
ment fee if she failed to pay her required dues before September 1, and the fact that
Respondent did not mention a reinstatement fee when it rejected Boness' tenders in
early September and before September 24. The General Counsel has apparently
abandoned these bases for a waiver for he does not rely on them in his brief, and I
shall not discuss them further except to state that I consider them without merit. In
his brief, however, the General Counsel does urge a waiver on the basis of Respond-
ent's constitutional requirement that "the reinstatement fee for suspended members
shall not be less than $15." Asserting that this requirement is ambiguous in that it
does not specify a "definite" reinstatement fee, the General Counsel now contends
that Boness "could [not] be required, for discharge purposes, to pay a reinstatement
fee until such time as the Union determined and communicated the exact amount of
the reinstatement fee." Accordingly, asserts the General Counsel, Boness' tender of
dues in September and before the amount of the reinstatement fee was specified on
September 24 constitutes a waiver of any reinstatement fee and makes the prior
September tenders proper.
Certainly, Boness' tailure to pay her dues before September and her consequent
loss of "good standing" cannot be attributed to any claimed ambiguity in the amount
of the reinstatement fee. And that Respondent did not specify such amount early in
September also could not have prejudiced her, for it did notify her of the precise
amount on two later occasions before requesting her discharge. This is scarcely a
waiver situation . Compare Busch Kredit Jewelry Co., Inc., 108 NLRB 1214.
I conclude, therefore, that Respondent did not waive Boness ' reinstatement fee and
that Respondent did not otherwise cause her discharge in violation of the Act. No
other unfair labor practices having been found, I shall recommend that the complaint
be dismissed in its entirety.
[Recommendations omitted from publication.]