Aluminum Workers International Union

National Labor Relations Board - Board Decisions

May 6, 1955

112 N.L.R.B. 619 (N.L.R.B. 1955)

ALUMINUM WORKERS INTERNATIONAL UNION 619
1. United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada,
Local 449, AFL, is not and has not been lawfully entitled to force or
require, by means proscribed by Section 8 (b) (4) (D), any employer
in Allegheny County, Pennsylvania, to assign leveling, aligning, and
setting of refrigerated display case work on any supermarket con-
struction project or any other store construction project to members of
said Local 449, rather than to carpenters or to members of Carpenters
District Council of Pittsburgh, Pennsylvania, and Vicinity, United
Brotherhood of Carpenters and Joiners of America, AFL.
2. Within ten (10) days from the date of this Decision and De-
termination of Dispute, the Respondent Union (Local 449) shall
notify the Regional Director for the Sixth Region, in writing, what
steps the Respondent has taken herein to comply with the terms of
this Decision and Determination of Disputes.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Determination of Disputes.
Aluminum Workers International Union , Local No. 135, AFL and
Leona H. Boness . Case No. 13-CB-303. May 6, 1955
SUPPLEMENTAL DECISION AND ORDER
On August 5, 1954, Trial Examiner Ralph Winkler issued his In-
termediate 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 Intermediate Report. Thereafter, the General Counsel filed-
exceptions to the Intermediate Report and a supporting brief.
On February 1, 1955, the Board issued its Decision and Order,'
to which a copy of the Intermediate Report was attached, in which it
reversed the Trial Examiner on the sole ground that Boness, on Sep-
tember 9, 1953, had made a proper tender of dues, and found that the
Respondent had violated Section 8 (b) (1) (A) and (2) of the Act
by causing the unlawful discharge of Leona Boness after she had made
a proper tender of back dues which was refused. The Board there-
fore ordered that the Respondent make Boness whole for any loss of
earnings suffered as a result of the discrimination practiced against her.
On February 15, 1955, the Respondent filed with the Board a
motion for reconsideration and/or remand, alleging, inter alia, that,
i 111 NLRB 411. Subsequently, on February 7, 1955, the Board issued an Order Cor.
recting Decision and Order.
112 NLRB No. 80.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since no action was taken by the Respondent with respect to Boness'
discharge until after she had been requested to pay, and had refused
to pay both her back dues and reinstatement fee, it is immaterial that
she had made an attempt to pay her dues on September 9, 1953, and,
accordingly, her September tender of dues does not render her subse-
quent discharge unlawful.
The motion for reconsideration is hereby granted, and the Board,
having reconsidered the matter, sustains its original Decision and
Order as noted herein, and, as a basis therefore, makes the following
findings :
1. As the complainant had, at the time when she tendered her back
dues on September 9, 1953,2 no knowledge of a specific reinstatement
fee then owing, she was not legally obligated to pay a fee, the amount
of which had neither been determined nor brought to her attention.
Therefore, as a tender of all her-back dues %vas made prior to the Re-
spondent's request for discharge, and was refused, we find, as we-did
in the original Decision, that on September 9, Boness made a proper
tender, by reason of which she was no longer delinquent as to back
dues and became automatically entitled to union membership in good
standing.' Accordingly, the subsequent act of the Respondent in
causing the complainant's discharge was unlawful and a violation
of Section 8 (b) (1) (A) and (2) of the Act.4
2. Even if the September 9 tender were not in itself sufficient basis
upon which .to forestall a lawful discharge for failure to pay union
dues, we still find without merit, as hereinafter noted, the Respondent's
argument raised in its motion for reconsideration.
As set forth in the Intermediate Report attached to the original
Decision and Order, the Respondent, on September 24, informed the
complainant for the first time that it would not accept her back dues
without the payment of a $15 reinstatement fee. On October 27, and
again on November 4, after Boness had several times tendered her
back dues but had refused to pay the specified $15 reinstatement fee,
the respondent requested her discharge. As the Company had ap-
parently not been advised as to whether Boness had been expelled
from the Union, the discharge request was not immediately acted
upon. On November 6, Boness sent the Respondent by registered mail
a letter allegedly containing 3 money orders covering her $15 rein-
Unless otherwise indicated, all dates refer to 1953
s The Respondent argued in its motion for i econsideiation that the theory upon which
the Board decided this case, namely, that the September 9 offer of back payment was proper
and the September 10 rejection unlawful, was not advanced or relied upon by the General
Counsel in the pioceedings before the Trial Examiner As the record discloses that the
sufficiency of the tender was in fact litigated by the parties before the Trial Examiner and
as we now find that the tender was sufficient, we find this contention without merit
6 We deem it unnecessary to find, and therefore delete the finding made in the earlier
Decision and Order, that the complainant became automatically suspended from the Union
on September 1.
ALUMINUM WORKERS INTERNATIONAL UNION 621
statement fee, and her current and delinquent dues.' The Respondent
refused the tender. Finally, on November 19, pursuant to the new re-
quest by the Respondent, the Company discharged the complainant.
Because the Trial Examiner concluded that October 27, the date of
the Respondent's first discharge request, was the "cut-off" date, he
found it unnecessary to resolve the issue of whether the November 6
tender by Boness included the reinstatement fee. Upon the facts here-
in recited, and particularly in view of the undisputed fact that Boness
purchased and signed the $15 money order on November 6, and sent
the envelope containing her dues by registered mail to the Respondent
on that (late, there appears to be insufficient evidence in the record to
overcome Boness' corroborated testimony that she included the $15
money order in the envelope. Accordingly, we find that Boness did
in fact tender her current and delinquent dues and the specified $15
reinstatement fee on November 6, and that the tender was refused by
the Respondent.
The Trial Examiner, relying upon an earlier Board decision,' in
effect found that a belated tender does not forestall a valid discharge.
However, we hold that a full and unqualified tender made anytime
prior to actual discharge, and without regard as to when the request
for discharge may have been made, is a proper tender and a subse-
quent discharge based upon the request is -unlawful.' Accordingly, as
we have found that the complainant herein tendered her back dues and
reinstatement fee on November 6; that the Respondent thereafter re-
fused to accept this tender; and that the complainant was subsequently
discharged pursuant to the Respondent's request on November 19, we
hold without merit the fact that the Respondent had requested the dis-
charge on October 27, and find that the complainant, in making the
maximum tender demanded by the Union 8 before her actual discharge,
6 Boners testified, as corroborated by other General Counsel witnesses, that on the morn-
ing of November 6, upon the advice of the Company secretary, and with $15 advanced to
her by the secretary, Bones' and another employee went to the post office, made out a $15
money order, enclosed it along with 2 other $6 money orders. 2 explanation slips, and her
dues hook, in an envelope and mailed it to the Respondent The Respondent admits receiv-
nip on November 6, the envelope enclosing the 2 $6 money orders, but claims that it con-
tained no money order covering the X15 icinstatement fee Sometime thereafter, Tetzlaff,
president of the Respondent Union, attempted to give the envelope back to Boness who
refused to accept it On or about November 18, Tetzlaff turned the envelope over to the
company president along with a new request for Boness' discharge The company presi-
dent in turn, gave it to lioness when she was discharged on the following day. Boness
and the eompanv secretary testified that the $15 money order was among the contents of
the envelope when it was returned to Boners on November 19 The envelope, the explana-
tion slips, and photostatic copies of the 2 $6 money orders and the November 6, $15 money
order, are part of the record in this ease
0 Chisholm -Ruder Company. Ine . 94 NLRB 508
To the extent that this decision is inconsistent with the Chssholnz -Ryder case , that case
is hereby overialed
8 We may assume, and need not decide, the legality of requiring the payment of the
particular reinstatement fee here involved See Food Machines y and Chemical Cot pot anon,
99 NLRB 1430
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was protected against discharge based on the Respondent's request.
We conclude, therefore, that the Respondent Union's act in causing the
complainant's discharge was a violation of Section 8 (b) (1) (A) and
(2) of the Act.
As the effect of the unfair labor practices upon commerce, the
remedy, the conclusions of law, and the Order of our original Decision
and Order are not inconsistent with our findings herein, we hereby
adopt them as part of this Supplemental Decision and Order.
MEMBER LEEDOM took no part in the consideration of the above Sup-
plemental Decision and Order.
Sutherland Paper Company and United Paper Workers of Amer-
ica, CIO, Petitioner . Case No. 7-RC-2677. May 6, 1955
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Emil C. Farkas, hearing offi-
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) andSection 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of all production and maintenance
employees at the Employer's Kalamazoo, Michigan, operations. The
Independent, which has represented all production and maintenance
employees since 1937, and the Paper Makers, are in substantial agree-
ment with the unit position of the Petitioner. The Printing Pressmen,
however, seeks to sever from the existing production and maintenance
unit all printing and cutting pressmen, feeder operators, their assist-
ants, helpers, and apprentices. Local 507 desires to represent the same
1 The following labor organizations were permitted to intervene at the hearing : Inde-
pendent Union of Sutherland Paper Company Employees, Inc, herein called Independent ;
International Brotherhood of Paper Makers, AFL, herein called Paper Makers , Interna-
tional Printing Pressmen & Assistants' Union of North America, AFL, herein called Print-
ing Pressmen , and Painting Specialties & Paper Products Union, Local 507, affiliated with
International Printing Pressmen & Assistants' Union of North America, AFL, herein called
Local 507.
112 NLRB No. 88.