Anaconda Copper Mining Co.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1925 (N.L.R.B. 1954)

ANACONDA COPPER MINING COMPANY 1925
ANACONDA COPPER MINING COMPANY and E. L . ROUSE AND EARL
FULLER
LUMBER AND SAWMILL WORKERS UNION, No. 3038, AFL and E. L.
ROUSE AND EARL FULLER. Cases Nos. 19-CA -841, 19-CA--84.1-1,
19-CB-254, and 19-CB=269. December 16,1954
Decision and Order
On January 12, 1954, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that Re-
spondents had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety. Thereafter the General Counsel filed exceptions to the In-
termediate Report and a supporting brief, Respondent Union filed a
reply thereto, and Respondent Company filed a brief in support of the
Intermediate Report. The Board has considered the Intermediate Re-
port attached hereto, the exceptions and the briefs, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
with the modifications and additions noted below.
1. As more fully set forth in the Intermediate Report, on or about
June 4, 1953, Respondent Union by letter requested Respondent Com-
pany to discharge Complainant Rouse, in accordance with the terms of
the union-security clause of the working agreement between them, be-
cause of Rouse's alleged delinquency in dues payments. On or about
June 5, Respondent Company notified Rouse of the Union's demand.
Thereafter on June 9, Rouse informed Respondent Company that the
Union's demand misrepresented the situation and that the Union had
refused to accept his tender of dues because he refused to pay an addi-
tional $1 assessment. On June 19, 1954, the Company, after discussing
the matter with representatives of the Union, informed Rouse that it
intended to follow the procedures of the union-security clause, where-
upon Rouse paid the full amount demanded.
Whether the $1 quarterly payment, which Rouse was thus forced
into paying, comes within the meaning of the term "periodic dues" as
that term is used in Section 8 (a) (3) and 8 (b) (2) of the Act is the
principal issue in this case.
On March 8, 1953, at a meeting of Respondent Union, called for the
purpose of voting on a motion to increase membership dues 50 cents
a month, the membership voted against the motion. After further
discussion, the following motion was made and seconded :
That we leave dues as they are $3.00 per member each month and
pay the $1.00 defense fund assessment in addition as we did in the
past making dues $10.00 per quarter.
11b NLRB No 256.
1926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This motion passed by a majority vote. The additional $1 per quarter
obligation, thus assumed, was to be payable for the second quarter
(April, May, and June) of 1953, and for each succeeding quarter for ari
undetermined period of time.
The Trial Examiner found it unnecessary to determine whether this
additional $1 quarterly payment was intended to be a dues increase or
an assessment, because, in his view, the fact that it was periodic,
uniformly levied, and was to be used for the purpose of meeting gen-
eral financial obligations of Respondent Union, brought it within the
scope of the term "periodic dues" in Section 8 (a) (3) and 8 (b) (2).
We disagree. The provisos on their face clearly limit their appli-
cation to dues, uniformly levied and periodically required. And even
if it be found necessary to go beyond the words of the Act itself, there
is nothing in the legislative history to indicate that Congress intended
the term "periodic dues" to include assessments as well. Furthermore,
as stated by the Board in the Union Starch case,'
Section 7 [of the Act] protects employees in their negative right
not to join or assist labor organizations, except to the extent that
that section is modified by the provisions of Section 8 (a) (3).
Section 8 (a) (3) is therefore an exception to Section 7. As Sec-
tion 7 expresses the legislative policy, the exceptions made in Sec-
tion 8 (a) (3) must, under general rules of statutory construction,
be strictly construed, to remove from the purview of Section 7 only
those "subjects expressly . . . freed from the operation of the
statute." 2 Sutherland, Statutory Construction (3rd ed.) Section
4933; 59 C. J. 1089.
By the enactment of these exceptions Congress intended to enable
unions effectively to deal with the problem of "free riders" while at the
same time ensuring that employees shall be relatively free to refrain
from joining or assisting labor organizations if that is their -desire.
Our decision that assessments do not come within the term "periodic
dues" leaves unions free to deal with the problem of "free riders,"
while at the same time it reflects the paramount importance Congress
attached to the right of employees generally to refrain from participat-
ing further in union activities.
In the light of the circumstances surrounding the adoption of the
motion to require members of the Union to pay an additional $1 per
quarter, particularly the membership's action in voting down a pro-
posed 50-cent increase in dues, and the wording of the motion that
passed which expressly stated that dues were to remain unchanged
and also referred to a similar assessment previously in force, we find
that the membership thereby intended to levy an assessment on the
members. Financial Secretary Kolppa's initial practice of receipting
1 Union Starch S Refining company, 87 NLRB 779, p. 784, footnote 12.
ANACONDA COPPER MINING COMPANY 1927
the additional $1 payment in the assessment column of the dues books,
while not a binding declaration of the Union's view of the nature of
the payment, is nonetheless indicative of the reasonableness of our in-
terpretation of the intention of the membership. Nor does the fact
that the payment was to be paid on a quarterly basis for an unde-
termined period of time convert it into a dues payment; indeed the dis-
parity in the periodicity of the quarterly payment and the monthly
dues payments militates against such a finding.
We cannot accept the Respondent's argument, which our dissenting
colleague apparently found persuasive, that in construing the statu-
tory proviso concerning the obligation to pay dues, the descriptive
adjective preceding the substantive noun must be given controlling
importance. The Act speaks of "periodic dues" but it does not fol-
low that all periodic union demands upon employees for money consti-
tute dues. No more, as Plato long ago explained, are all things mortal
because man is mortal.
We do not hold, of course, that this Union, or any other, may not
increase the periodic dues which all its members, covered by proper
union-security contracts, can be compelled to pay in order to keep
their jobs. All that the membership need do is express their desires
concerning dues in unmistakable terms. In this case, they expressly
voted not to increase the dues.
2. Respondent Union contends that despite the reversal of the Trial
Examiner's finding that the disputed payments come within the term
"periodic dues," the Board must nevertheless dismiss the complaint
against it on the ground that at the time of its request for the dis-
charge of Rouse, Rouse was delinquent in his April and May dues, and
had never tendered payment of such dues, except on the condition
that the Union accede to his version of what was due and owing for
the month of June.
There is some conflict between the testimony of Rouse and Kolppa
as to what occurred between them on June 3, 1953, when Rouse at-
tempted to pay his dues for the second quarter. Assuming Kolppa's
version to be the correct one, it appears that Kolppa told Rouse that
his dues were $10 per quarter. Union President Winters also told
Rouse that his dues were $10 per quarter and that he would have to
pay it. Rouse replied that he would pay $9 but not the extra $1, and
concluded the discussion with the statement that "I'll see about it."
On June 9, 1953, Rouse mailed a check for $9 with a notation that
it was in full payment of his April, May, and June dues. This check
was returned to him because it was not for the full amount demanded
by the Union.
We have found that the Union had no legal right to insist upon
the payment of the additional $1 quarterly payment because it was
an assessment and not dues. Rouse, as shown above, was willing to
1928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay $9 as dues for the months of April, May, and June and later sent
the Union a check for that amount. The Union indicated on
June 3 it would not be satisfied with only $9 and later returned Rouse's
check which had been mailed on June 9. By its actions on June 3
and by the later return of Rouse's check, the Union amply demon-
strated the fruitlessness of an actual tender of $9 on June 3, which
was all Respondent Union could legally require him to pay for the
months of April, May, and June, and which Rouse had indicated he
would be willing to pay. Under the circumstances, we find that
Rouse was under no duty to tender the dues for the months of April
and May separately; that indeed he had attempted to pay those dues.
Consequently Respondent Union's contention that it was justified in
demanding Rouse's discharge because of his failure to pay his April
and May dues is without merit.
We conclude, accordingly, under the circumstances of this case,
that by attempting to cause Respondent Company to discharge Rouse,
Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A) of
the Act.
3. We must now consider whether Respondent Company, in advis-
ing Rouse that it intended to follow the procedures of the union-se-
curity clause, despite its knowledge of Rouse's claim that Respondent
Union had refused to accept his regular monthly dues because he re-
fused also to pay an assessment, violated Section 8 (a) (3) and 8 (a)
(1). Respondent Company contends that it discussed Rouse's conten-
tion with responsible union officials, who assured it that Rouse was in
error, and that the Union would assume full responsibility for any lia-
bility which might accrue if the Union was mistaken, and that it could
not have pursued the matter any further than it did without commit-
ting an unwarranted intrusion in the internal affairs of the Union.
We find no merit to this contention. Respondent Company knew that
the Union's request for the discharge of Rouse was based on Rouse's
failure to pay, along with his regular monthly dues, an amount which
Rouse claimed was an assessment, and which the Union claimed was
dues. Respondent Company's investigation of this matter consisted
in nothing more than eliciting a reaffirmation of the Union's position.
Having chosen to rely on the Union's interpretation of the legality
of its action without any inquiry of the Union as to the factual basis
of its interpretation, Respondent Company must accept the conse-
quences of that interpretation being legally incorrect .2 We find, there-
fore, that Respondent Company had reasonable grounds for believing
that Respondent Union was requesting Rouse's discharge for reasons
other than his failure to pay dues. By indicating to Rouse that it ac-
2 Cf. Pape Broadcasting Company, 104 NLRB 29.
ANACONDA COPPER MINING COMPANY 1929
cepted the Union's position rather than his and thereby coercing
Rouse into paying an assessment, which legally he was not required to
pay, Respondent Company violated Section 8 (a) (3) and 8 (a) (1).
Allegations Concerning Earl Fuller
Both Respondents moved to dismiss the consolidated complaint in-
sofar as it involved allegations of unfair labor practices against Earl
Fuller. The Union contends that the charge filed by Fuller is an in-
sufficient basis for the issuance of a complaint, in that it makes no
allegation of unfair labor practices committed by Respondent Union
under either of Section 8 (b) (1), 8 (b) (2), or 8 (b) (5), the only
section dealing with unfair labor practices by a union against indi-
vidual employees. Respondent Company contends that its actions
with respect to Fuller amounted to no more than answering Fuller's
request for information, and that it in no way threatened to discharge
Fuller or discriminate against him with regard to his hire and tenure
of employment.
It is unnecessary for us to decide whether the charge fails to allege
an unfair labor practice by Respondent Union, for the evidence is
undisputed that Respondent Union at no time requested the Company
to discharge Fuller because of Fuller's refusal to pay the amount de-
manded of him and that therefore Respondent Union did not violate
the Act by its actions with respect to Fuller. The Act does not forbid
a union from demanding payment of money other than periodic dues,
it merely prevents a union from enforcing such demands by request-
ing an employer to discharge an employee who refuses to pay such
additional money. We also find that Respondent Company did not
violate the Act when it told Fuller that if Fuller were ever delinquent
in his dues and Respondent Union requested his discharge, Respond-
ent Company would abide by its contract with Respondent Union.
That statement was clearly a statement of a position Respondent Com-
pany had a right to take if such a eventuality occurred. We shall,
therefore, dismiss the allegations of the complaint which allege unfair
labor practices committed by Respondents against Earl Fuller.
THE EFFECT OF THE nNFAIR LABOR PRACTICES ON COMMERCE
The activities of Respondents as set forth above, occurring in con-
nection with the operations of Respondent Company, as set forth in
section I of the Intermediate Report, attached hereto, 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.
1930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
- Having found that the Respondents, and each of them, have en-
gaged in unfair labor practices, we shall order that they cease and
desist therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
It has been found that Respondent Union attempted to cause Re-
spondent Company to discriminate against E. L. Rouse by request-
ing his discharge because of his refusal to pay an assessment, and that
by such action Respondent Union restrained or coerced employees of
Respondent Company in the exercise of the rights guaranteed in Sec-
tion 7. It has also been found that Respondent Company by indi-
cating to E. L. Rouse that it intended to comply with Respondent
Union's request for Rouse's discharge discriminated against Rouse
with respect to his hire and tenure of employment and by such action
Respondent Company interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7.
The General Counsel contends that as Respondent Company is re-
sponsible along with Respondent Union for the discrimination
against E. L. Rouse, both Respondents must be held jointly and
severally liable for the reimbursement of any money necessary to re-
store the status quo ante. The General Counsel also contends that
the Board should require Respondents to refund to any employee
who so requests, the $1 quarterly assessment. As to this latter conten-
tion, we do not believe it would effectuate the policies of the Act to
require a refund to any or all employees other than Rouse, absent a
specific finding that the individual employee had been unlawfully
coerced into paying the assessment. As to the former contention, we
do not believe it would effectuate the policies of the Act, under the
circumstances of this case, to hold Respondent Company jointly and
severally liable along with Respondent Union for the reimbursement
of E. L. Rouse of any monetary loss he has suffered. To do so would
permit Respondent Union to retain half of that which it had no right
to collect in the manner in which it did. As the amount is small, no
consideration of insuring that Rouse be made whole requires that
the Respondent Company be made jointly liable, for there can be no
doubt that Respondent Union is financially able to pay the amount
involved.
We shall therefore order Respondent Union to make E. L. Rouse
whole for any monetary loss he may have suffered as a result of the
discrimination against him, by refunding to Rouse a sum equal in
amount to the $1 quarterly payments Rouse has paid since June 4,
1953.
ANACONDA COPPER MINING COMPANY 1931
CONCLUSIONS OF LAW
Upon the foregoing findings of fact, and upon the entire record
in the case, we make the following conclusions of law :
1. The Respondent Company, Anaconda Copper Mining Company,
Butte, Montana, is an employer within the meaning of Section 2 (2)
of the Act, engaged in commerce and business activities which affect
commerce, within the meaning of Section 2 (6) and (7) of the Act.
2. The Respondent Union, Lumber and Sawmill Workers Union,
No. 3038, AFL, is a labor organization within the meaning of Section
2 (5) of the Act.
3. By causing Respondent Company to discriminate against E. L.
Rouse in violation of Section 8 (a) (3) of the Act, Respondent Union
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
4. By restraining and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent Union has engaged
in -and is engaging in unfair labor practices within the meaning of
Section 8' (b) (1) (A) of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of E. L. Rouse, thereby encouraging membership in Respondent
Union, Respondent Company has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8 (a) (3) of the
Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondent Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
7. Respondent Company has not engaged in unfair labor practices
within the meaning of Section 8 (a) (3) and section 8 (a) (1) against
Earl Fuller as alleged in the complaint.
8. Respondent Union has not engaged in and is not engaging in
unfair labor practices against Earl Fuller as alleged in the complaint,
'within the meaning of Section 8 (b) (2) and Section 8 (b) (1) (A) of
the Act.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent, Anaconda Copper Mining Company, Butte,
Montana, its officers, agents, successors, and assigns, shall:
(a) Cease and desist from:
(1) Encouraging membership in Lumber and Sawmill Workers
Union, No. 3038, AFL, or in any other labor organization of its em-
1932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, by discharging or threatening to discharge, or in any other
manner discriminating in regard to their hire, tenure, or any term
or condition of their employment.
(2) In any like or related manner interfering with, restraining, or
coercing its employees in their right to refrain from exercising the
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 condition of employment as authorized by
Section 8 (a) (3) of the Act.
(b) Take the following affirmative action:
(1) Post at its sawmill in Bonner, Montana, copies of the notice
attached hereto and marked "Appendix A." I Copies of said notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by the Respondent Company's repre-
sentative, be posted by it immediately upon receipt thereof, and be
maintained by it for a period of at least sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent Company to insure that said notices are not altered,
defaced, or covered by any other material.
(2) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the dates of this Order, what steps
it has taken to comply herewith.
2. The Respondent, Lumber and Sawmill Workers Union, No. 3038,
AFL, its officers, representatives and agents, successors, and assigns,
shall :
(a) Cease and desist from:
(1) Causing or attempting to cause Anaconda Copper Mining
Company, Butte, Montana, its officers, agents, successors, or assigns,
to discharge any employee for his failure to tender to the Respondent
Union any sum of money other than the periodic dues, uniformly
levied, as defined in the Act, or in any other manner causing or at-
tempting to cause that Company, its officers, agents, successors, or as-
signs, to discriminate against its employees in violation of Section 8
(a) (3) of the Act.
(2) Restraining or coercing employees of Anaconda Copper Min-
ing Company, Butte, Montana, its officers, agents, successors, or as-
signs, in the exercise of their right to refrain from any or all the con-
certed activities guaranteed to them by 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 condition of employment as
authorized by Section 8 (a) (3) of the Act.
3In the, event that this Order,is enforced by a decree of a United States Court of Ap-
peals, 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."
ANACONDA COPPER MINING COMPANY 1933
(b) Take the following affirmative action:
(1) Make whole E. L. Rouse for any loss of money that he may
have suffered because of the discrimination against him, in the man-
ner described in "The Remedy," above.
(2) Post in conspicuous places in its business office in Bonner, Mon-
tana, and in all other places where notices to members are customarily
posted, copies of the notice attached hereto and marked "Appendix
B." 4 Copies of said notice, to be furnished by the Regional Director
for the Nineteenth Region, shall, after being duly signed by official
representatives of Respondent Union, be posted by Respondent Union
immediately upon receipt thereof and maintained by it for a period
of sixty (60) consecutive days thereafter. Reasonable steps shall be
taken by the Respondent Union to insure that said notices are not al-
tered, defaced, or covered by any other material.
(3) Mail to the Regional Director for the Nineteenth Region
signed copies of the notice attached hereto as Appendix B, for posting,
the Respondent Company willing, at the office and place of business of
Respondent Company in Bonner, Montana, in places where Appendix
A is posted. Copies of said notice, to be furnished by the Regional
Director for the Nineteenth Region, shall, after being signed as pro-
vided in paragraph 2 (b) (2) of this Order, be forthwith returned to
the Regional Director for posting.
(4) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
MEMBER MURDOCK , dissenting :
I agree with my colleagues that the payments at issue in this case
are assessments and that the intent of the membership when they ap-
proved the motion
That we leave dues as they are $3.00 per member each month and
pay the $1.00 defense fund assessment in addition as we did in the
past making dues $10.00 per quarter.
was to institute a general assessment to be collected at periodic
intervals.
I disagree, however, with their conclusion that this assessment does
not come within the scope of the term "periodic dues" as used in Sec-
tion 8 (a) (3) and 8 (b) (2) of the Act.
This is the first case, to my knowledge, which squarely presents the
issue whether a general assessment , uniformly levied and periodically
collectible, comes within the scope of the term "periodic dues." The
Board has, however, strongly indicated that it believes general assess-
4 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals , 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."
1934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments of such nature are encompassed by the term "periodic dues."
In International Harvester 5 the Board found the assessments there
involved were not included within the term "periodic dues" because
under all the methods by which assessments could be levied under the
Respondent Union's constitution
... the time and amount of the assessment are variable and not a
matter of certain prediction. A standard dictionary defines
periodic in its principal meaning as "characterized by periods, oc-
curring at regular stated times, acting, happening or appearing
at fixed intervals ." 4 The assessments provided for in the contract
do not appear to contain any element of regularity or periodicity.
In these circumstances we fail to see any support for the con-
tention that such assessments are included within the phrase
"periodic dues" as enacted by Congress in 1947. [Emphasis
supplied.]
4 Webster' s Dictionary ( Second Edition Unabridged).
While the Board did not specifically state in the International Har-
vester case that if the assessments therein involved had been periodic
in nature it would have found them to be included in the term
"periodic dues," the decision clearly implies such a conclusion. For
if the Board had not so believed, it was entirely unnecessary for it to
examine Respondent Union's constitution to determine that "The as-
sessments provided for in the contract do not appear to contain any ele-
ment of regularity of periodicity." The short answer would have
been to state that it matters not how assessments are levied , or whether
they are periodic in nature, they are not included in the term "periodic
dues."
The test applied by the Board in the International Harvester case
does not exclude the assessment involved in the instant case, from the
term "periodic dues." 5 Nor is such a holding barred by the legislative
history. The only reference to assessments in the legislative history are
references to the famous De Mille assessment, principally by Senator
Ellender,7 which was a "one shot" assessment for a specific purpose and
not a continuing periodic assessment to meet general expenses and ob-
ligations of the union, and thus not typical of the situation before us.
Furthermore it should be noted that Senator Ellender's discussion of
5 International Harvester Co., 95 NLRB 730.
9 See also Continental Can Company, 98 NLRB 1252 , in which the Board said at page
1253, "However , we find nothing to indicate that the Steelworkers ' assessments contain
the elements of regularity or periodicity necessary to being them within the meaning of
the term 'periodic dues,' as used in the second proviso to Section 8 ( a) (3) of the Act.
We therefore [ emphasis supplied ] find, for the reasons set forth in the International Har-
vester case , that the provision quoted above goes beyond the permissive language of Sec-
tion 8 ( a) (3)."
7 93 Cong. Rec . 4136, 4258 , 2 Leg. Hist. LMRA, pp. 1061, 1062, 1068
ANACONDA COPPER MINING COMPANY 1935
the De Mille assessment occurred before the word "periodic" was added
to the Act. The word "periodic" was added by the conference commit-
tee.without any explanation or clarification in the conference report.'
In both bills originally passed by the House of Representatives and
the Senate, the pertinent sections applied to "dues and initiation fees
uniformly required." 9 The term dues was referred to as "regular
monthly dues" by Senator Ball,10 and merely as dues by Senator Taft
in explanatory statements 11 and in the Senate Report.12 It seems plain
that without the word "periodic" the proviso under consideration
would have embraced within its scope the normal regular monthly
dues. If the scope of the sections be limited to no more than the nor-
mal regular monthly dues, as the majority decision does, the word
periodic is given no meaning contrary to well-established principles of
statutory construction that each word of a statute will be given mean-
ing if possible.13 By interpreting the term "periodic dues" to include
general assessments of the type herein involved, so long as they are uni-
formly levied and periodically collectible, the word periodic is given a
meaning entirely consistent with the undisputed intention of Congress
to provide a method by which unions could deal effectively with the
problem of "free riders" 14 without imposing any unreasonable restric-
tion on the right of employees to refrain from joining or 'assisting labor
organizations. This does not mean, as the majority implies, that I
would find all "periodic union demands upon employees for money con-
stitute dues." I merely find that the general assessment here involved
which is uniformly levied and periodically collectible and is used for
"the maintenance of Respondent Union and its general upkeep," as
found by the Trial Examiner, is included within the term "periodic
dues." To find otherwise is to give controlling significance to the name
given a particular payment rather than to the nature of the payment.
Accordingly, for the reasons set forth above, I would find the $1
quarterly assessment at issue in this case to be a part of the Respond-
ent Union's "periodic dues . . . uniformly required as a condition
of acquiring or retaining membership," and would therefore affirm
the Trial Examiner's dismissal of the complaints.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
8 Conference Report No. 510 on H. R. 3020, pp. 41, 44; 1 Leg Hist. LMRA pp. 545, 548.
9 H. R. 3020, As passed House, 1 Leg. Hist. LMRA, pp. 158, 181; As passed Senate,
1 Leg. Hist. LMRA, pp 226, 240.
10 93 Cong Rec A2378; 2 Leg. list. LMRA, p. 1524.
n 93 Cong. Rec 3952, 4318, 2 Leg Host. LMRA, pp. 1010, 1097.
12 Senate Report No. 105, 80th Cong. p. 7; 1 Leg list. LMRA, p. 413.
13 2 Sutherland , Statutory Construction , Section 4926.
11 See discussion of legislative history in Union Starch if Refining Company, 87 NLRB
779, 785, 786 , and particularly footnotes 14, 15, and 17.
1936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
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 our employees that :
WE WILL NOT encourage membership in Lumber and Sawmill
Workers Union, No. 3038, AFL, or in any other labor organiza-
tion of our employees, by discriminating in any manner in regard
to their hire, tenure of employment, or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the right to refrain from any
or all of the concerted activities guaranteed them by 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
condition of employment, as authorized by Section 8 (a) (3) of
the Act.
All our employees are free to become or remain members of the
above-named Union, or any other labor organization, except to the ex-
tent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the amended Act. We will not discriminate
in regard to hire or tenure of employment of any employee as to whom
membership in a union holding such a contract has been denied or
terminated for reasons other than the failure of the employee to ten-
der the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership.
ANACONDA COPPER MINING COMPANY,
Employer.
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.
Appendix B
To ALL MEMBERS OF LUMBER AND SAWMILL WORKERS UNION, No. 3038,
AFL, AND TO ALL EMPLOYEES OF ANACONDA COPPER MINING COM-
PANY AT ITS MILL IN BONNER, MONTANA
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 cause or attempt to cause Anaconda Copper Min-
ing Company, Butte, Montana, its officers, agents, successors, or
ANACONDA COPPER MINING COMPANY 1937
assigns, to discharge employees for such employees' failure to
tender to this Union any sum or money in excess of the periodic
dues uniformly levied, as defined in the Act, or in any other man-
ner cause or attempt to cause that Company, its officers, agents,
successors, or assigns, otherwise to discriminate against its em-
ployees in violation of Section 8 (a) (3) of the Act.
WE WILL NOT restrain or coerce employees of Anaconda Copper
Mining Company, Butte, Montana, in the exercise of their rights
to refrain from any or all the concerted activities guaranteed to
them by Section 7, except to the extent that such right may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment, as authorized by Section
8 (a) (3) of the Act.
WE WILL make E. L. Rouse whole for any loss of money he may
have suffered because of the discrimination against him.
LUMBER AND SAWMILL WORKERS UNION,
No. 3038, 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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
After an investigation of charges duly filed in these cases by E. L. Rouse, Earl
Fuller, John McKay, and Robert McKay, designated herein as the Complainants,
the General Counsel of the National Labor Relations Board, in the name of the
Board , caused the Regional Director of its Nineteenth Region, Seattle, Washington,
to issue a consolidated complaint on September 8, 1953; the Anaconda Copper
Mining Company , of Butte, Montana, was named therein as the Respondent Em-
ployer , and Lumber and Sawmill Workers Union, No. 3038, affiliated with the
American Federation of Labor, was designated as the Respondent Union. They
will be so called in this report.
In substance , the consolidated complaint alleged that the Respondent Employer
had engaged and continues to engage in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, as amended and reenacted by the
Labor Management Relations Act of 1947, 61 Stat. 136, designated herein as the
Act, and that the Respondent Union engaged and has continued to engage in unfair
labor practices affecting commerce, within the meaning of Section 8 (b) (1) (A)
and (2), and Section 2 (6) and (7) of the same statute. Copies of each charge,
the Regional Director 's order that the cases be consolidated , the consolidated com-
plaint, and a notice of hearing were duly served upon the Respondent Employer,
the Respondent Union, and the Complainants previously noted.
With respect to the unfair labor practices , the consolidated complaint alleged, in
substance : (1) That the Respondent Union, on or about June 15, 1953, and
thereafter, had caused or attempted to cause, and is now causing , the Respondent
Employer to discriminate against the Complainants to encourage membership in
the Respondent Union, by causing or attempting to cause the Respondent Employer
to discharge the employees involved for reasons other than their failure to pay the
periodic dues and initiation fees uniformly required as a condition precedent to the
338207-55-vol. 110-123
1938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acquisition or retention of union membership, (2) that the Respondent Employer,
on or about June 15, 1953, and thereafter-at the demand of the Respondent Union
and for the reasons previously stated-discriminatorily threatened to discharge the
Complainants unless and until they complied with the discriminatory conditions
established by the Respondent Union, thereby causing these employees to comply
in order to retain their employment; (3) that the Respondent Union, by its course
of conduct as described, restrained and coerced the employees of the Respondent
Employer, at its operations in and near Bonner, Montana, in the exercise of rights
guaranteed them by the statute; and (4) that the Respondent Employer and the
Union thereby engaged and have continued to engage in unfair labor practices af-
fecting commerce within the meaning of the Act, as amended.
The Respondent Employer's answer, duly filed, admitted the jurisdictional allega-
tions of the complaint, but denied the status of the Respondent Union as a labor
organization and went on to deny the commission of any unfair labor practices.
Despite this answer, the Union's status as a labor organization within the meaning
of the statute was later stipulated. My findings, in accordance with the stipulation,
are set forth elsewhere in this report. The answer of the Respondent Union, also
duly filed, admitted its status as a labor organization within the meaning of the
statute, but denied the commission of any unfair labor practices. Affirmatively it
admitted an attempt to cause the Respondent Company to require E. L. Rouse to
pay the periodic dues uniformly required of all union members or, in the alterna-
tive, to discharge the employee pursuant to the provisions of a union-security agree-
ment executed in conformity with the statute. The Respondent Union, however,
specifically denied any effort to cause employer discrimination, in any manner,
against Earl Fuller, John McKay, or Robert McKay.
Pursuant to the notice previously cited, a hearing on the consolidated complaint
was held at Missoula, Montana, on October 15 and 16, 1953, before me, as a duly
designated Trial Examiner. The General Counsel and the Respondent Employer
were represented by counsel, and the Respondent Union by its business representa-
tive. All of the parties were afforded full opportunity to participate, to be heard,
to examine and cross-examine witnesses, and to introduce evidence pertinent to the
issues.
At the outset of the case, a motion to strike all references to John McKay and
Robert McKay in the consolidated complaint, offered on behalf of the General
Counsel, was granted without objection. The Union's motion, offered in conjunc-
tion with its answer, for a severance of the cases involving it and the Respondent
Employer, was thereafter withdrawn; its concurrent motion to strike any references
to Earl Fuller in the consolidated complaint, however-on the asserted ground that
the action of the Respondent Union with respect to this employee involved no
restraint or coercion within the meaning of the statute-was denied. At the close
of the General Counsel's presentation, a motion to dismiss the consolidated com-
plaint entirely, insofar as it involved the Respondent Employer, was also denied.
Thereafter, however, at the close of the testimony, a motion by the General Counsel's
representative to conform the pleadings to the proof in certain formal respects was
granted without objection.
Each of the parties argued orally in response to questions; their arguments have
been embodied in the stenographic transcript. Each of the parties also, reserved
the right to file a brief or a memorandum of points and authorities. In accordance
with these reservations, briefs have been received from the General Counsel, the
Respondent Employer, and the Union involved.
Upon the entire record in the case, and upon my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT EMPLOYER
The Anaconda Copper Mining Company, a Montana corporation, designated for
the balance of this report as the Respondent Employer or Respondent Company, is
engaged in the mining and smelting of copper and other ores, the business of logging,
the production of timber products, and other allied enterprises, in various States of
the United States and in other nations. In the course of normal operations, its
lumber division, which operates the sawmill at Bonner, Montana, with which this
case is immediately concerned, ships lumber products, valued in excess of $100,000
annually, out of the State.
The Respondent Company's answer admits that it is engaged in commerce and
activities which "affect" commerce within the meaning of Section 2 (6) and (7)
of the Act. I so find.
ANACONDA COPPER MINING COMPANY 1939
II. THE RESPONDENT UNION
Lumber and Sawmill Workers Union, No. 3038, affiliated with the American
Federation of Labor, is a labor organization within the meaning of Section 2 (5)
of the Act, as amended, which admits employees of the Respondent Company to
membership.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The contract
The Respondent Company and the Union have, for a number of years, main-
tained a contractual relationship. Throughout 1953, the period with which this
case is immediately concerned, that relationship was defined and given expression
in a trade agreement originally executed on August 4, 1951. As executed, it was to
take effect retroactively on June 1, 1951, and it contained a provision that it was to
c ,.itinue in effect for 1 year, and from year to year thereafter, subject to notice by
either party of a desire to change, terminate, or modify its terms. Certain modifica-
tions were, in fact, negotiated by the parties on June 16, 1952, with respect to
wage rates; none of the modifications, however, affect the situation now presented
for decision. The agreement contains a provision with respect to union security
which reads, in pertinent part, as follows:
ARTICLE III-UNION SECURITY
The Company reserves the right to select all new employees. Within thirty
(30) days after the date of signing of this agreement, or after the date of hire,
whichever is later, each employee employed within the bargaining unit desig-
nated . . . including any employee not a member of the Union at the date
this agreement is signed, shall tender to the Union his initiation fee and regular
monthly dues as a condition of continued employment. The term "dues" as
used herein means the payments uniformly required of all employees to retain
membership in the Union, and does not include fines.
Prior membership in the Union, and prior employment by the Company,
shall have no bearing on the employee's privilege during the thirty (30) day
period.
Should the Union request the discharge of any employee for failure to tender
his initiation fee or regular monthly dues, it shall submit such request to the
Company in writing, and the Company, after a period of not to exceed fifteen
(15) days, must discharge said employee, unless during such interval he tenders
to the Union such initiation fee or monthly dues.
This provision of the trade agreement between the Respondent Company and the
Union has remained in effect, without modification, since it was negotiated. The
circumstances which attended its adoption have not been detailed in the record; no
contention that its terms contravene the basic policies of the statute, or that it was
adopted without regard to the requirements of Section 8 (a) (3) of the Act, has
been advanced in the instant case, however. For all relevant purposes in connection
with this matter, therefore, its validity may be assumed.
2. The relationship between the Respondent Union and its District Council
The Respondent Union, with a number of other local unions, maintains member-
ship in the Montana District Council of Lumber and Sawmill Workers Unions, of
the United Brotherhood of Carpenters and Joiners of America, designated as the
District Council elsewhere in this report. Insofar as the record shows, it has main-
tained such membership for a number of years. The available evidence with respect
to the relationship between the Respondent Union and the District Council, which
I now propose to summarize, is limited in the main to the testimony offered by Robert
C. Weller, the District Council's secretary-treasurer, and the business representative
of its constituent local unions. It has not been disputed, and I believe it to be en-
tirely worthy of credit.
In March 1946, the District Council established a defense fund, intended to pro-
vide financial assistance to the members of any local union unemployed because of
a strike or lockout. The fund, which still exists, has consistently been restricted to
such use.
1940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears to have been established through an assessment of $5 on each member
of an affiliated local union . At the same time , the District Council called for an
equivalent assessment of $5 per member to be levied by each local for the purpose
of establishing local union defense funds, to be used only for assistance to members
of the particular local in the event of a strike or lockout. Under the plan as adopted,
the District Council undertook a commitment, in all such cases, to match the defense
fund of the local involved in any strike or lockout under way.'
Business Representative Weller testified without contradiction, and I find , that it
was the "intention" of the District Council and the local unions to use the defense
fund to finance any strike that might occur within the territory of the District Coun-
cil, and then to replenish the fund as needed, from time to time, by the levy of an
assessment on each member of the Council's constituent local unions, in an amount
proportionate to that expended. In 1948, such a strike did occur, and the defense
fund of the District Council was used to provide financial assistance to the strikers.
At the end of the strike, an assessment of $1 was levied on each member of the or-
ganization's constituent local unions to replenish the District Council's fund. Since
that time, insofar as the record shows, no special assessments have been levied on
the members of any constituent local union by the District Council, for this or any
other purpose.
When the District Council's defense fund was established, the Respondent Union,
according to Weller, did collect and remit the $5 assessment for the fund, from each
of its members. It did not, however, collect the $5 assessment required to establish
a local union defense fund. Its omission in this respect appears to have been called
to the attention of the Respondent Union's members in 1947, at a regular meeting-
at which time Business Representative Weller explained that unless the members es-
tablished a local union defense fund in an amount equivalent to $5 per member based
on the Union's membership in March 1946, they would not be able to qualify for
financial assistance from the District Council's defense fund in the event of their
involvement in a strike or lockout. The Respondent Union, however, levied no assess-
ment; instead, its members adopted a motion to build up a local union defense fund
by transfers from its general fund. As adopted, the motion called for the transfer
of any amounts over $1,100 in the local Union's general fund in any 1 month, until
the amount required for a local union defense fund had been reached.
Again in 1948, when the $1 assessment was levied in the name of the District
Council to replenish its defense fund, the Respondent Union did not levy an assess-
ment; it appears to have paid its share to the District Council out of its general fund
and its ordinary receipts in the form of initiation fees and dues.
No payments to the District Council's defense fund were made by the Respondent
Union or any other constituent local after the $1 assessment levied in 1948, until
October 1950. In January of that year, the District Council at a convention, had
adopted a proposal for regular quarterly payments by each constituent local into the
District Council defense fund. (There is some testimony, in the record, that a goal
of $50,000 had been set with respect to the fund, and that the quarterly payments
would be required until the fund reached that amount . The testimony, however,
appears to have been grounded in rumor. I have made no findings, therefore, with
respect to any limitation on the size of the defense fund or the expectations of union
officials and members as to when the quarterly payments might end.) Later in 1950,
the District Council's proposal was ratified, with certain modifications, by the local
unions. The first payments under the proposal were received in October 1950, for
the third quarter of that year-the months of July, August, and September. Regu-
lar payments to the District Council defense fund have been made, since that time,
by the Respondent Union and all other local unions affiliated with the District Coun-
cil, as noted.
Originally, in convention, the District Council had voted for a quarterly assess-
ment of $1, payable by each member of the Council's constituent local unions. As
ratified, according to Weller, the plan called for quarterly remittances from each
local union-the amount due in each quarter to be computed on the basis of the
average number of members in good standing during each of the 3 months in the
quarter, less the number of members unemployed as much as 2 months during the
period in question . The sum of $1 per "member" was to be remitted to the District
Council, therefore, on the basis of the local union's "net membership" thus
computed.
'These arrangements with respect to District Council and local union defense funds
appear to have been ratified by the membership of all the constituent local unions voting,
in accordance with the bylaws of the District Council, in a referendum ballot.
ANACONDA COPPER MINING COMPANY 1941.
Business Representative Weller's testimony establishes that many officers and
members of the District Council and its constituent local unions refer to these quar-
terly payments as "defense fund assessments"; as a witness, Weller expressed the
opinion that this designation developed because of the fact that the District Coun-
cil's defense fund had been established initially by a special assessment , and the
fact that it had been thereafter replenished-on at least one occasion-by an addi-
tional special assessment , levied upon the individual members of each constituent
local union . His testimony in this connection, however, would appear to involve
inference and opinion . The business representative's contention that the quarterly
payments required of each local union for the maintenance of the District Council
defense fund are misnamed as assessments would not appear to be entitled to evi-
dentiary weight-but his testimony that the payments are so designated , habitually,
by a number of the officers and union members involved has not been contradicted.
I so find.
When the quarterly payments to the District Council defense fund began-effec-
tive as of the third quarter of 1950-each constituent local union of the District
Council made its own arrangements with respect to increased revenue, in order to
meet the burden of the required payments. According to Weller, some locals in-
creased their periodic dues as much as 50 cents per month. Some locals increased
dues in the amount of $1 per quarter. And others adopted a "Defense Fund As-
sessment" of $1 per quarter to be levied upon all members. The Respondent Union,
the record shows, followed the latter course. Business Representative Weller, as a
witness, expressed the opinion that the Respondent Union's requirement that all of
its members pay an "assessment" of $1 per quarter in fact involved an addition to
the uniformly required periodic dues of the Union, payable on the same basis as other
dues despite its designation as an "assessment" by the officers and membership. This
interpretation of the situation, as we shall see, constitutes the cornerstone of the
Respondent Union's argument in the present case; its validity will be considered
elsewhere in this report.
At the Respondent Union's regular meeting in December 1951, the $1 "assess-
ment" was terminated, effective as of January 1, 1952. At the meeting, specifically,
the membership voted to eliminate the $1 quarterly payment required of each
member in favor of a dues increase of 50 cents per month, and to meet the organiza-
tion's quarterly committment with respect to the District Council defense fund out of
its augmented general funds. The Union's dues, at the time, stood at $2 50 per
month, the membership therefore had been paying $8.50 per quarter-$7 50 as
nominal dues and $1 as an "assessment" or extra payment. By its action in De-
cember 1951, the Respondent Union increased its dues for the new calendar year
to $3 per month, or $9 per quarter.
Throughout the period now under consideration-subsequent to the inception
of the quarterly defense fund payments by the Council's constituent local unions,
and up to the period in 1953 with which this case is immediately concerned-the Re-
spondent Union through its designated officer, most recently Financial Secretary
Earl Kolppa, regularly submitted two financial reports to the District Council. The
first of these, a monthly report, was prepared to inform the District Council of the
Union's total membership, the number of its members in good standing at the end
of the month, and the number of persons at work under permits issued by the Union
during the month. On the basis of these figures Financial Secretary Kolppa was
required to advise the District Council of the total amount due it in settlement of the
Respondent Union's obligation to remit initiation fees, and per capita taxes at the
rate of 75 cents for each permit worker and union member in good standing, at the
end of the month. Secondly, as the record shows, Kolppa was required to submit,
and did submit, a quarterly defense fund report to the District Council. In con-
formity with the formula previously noted, the report form called for data as to the
number of union members in good standing for each month of the particular quarter
involved, the average number of union members during the quarter, and the number
of such members not employed at the trade for any 2 months during the quarter.
The report form, as received in evidence, indicates that Financial Secretary Kolppa
was required to subtract the latter figure from the average membership figure for
the quarter, and to report a remittance in the amount of $1 each for the resultant
"balance" of the membership.
The available evidence establishes without contradiction, and I find, that Financial
Secretary Kolppa regularly submitted these reports, as they were prepared, to the
treasurer of the Respondent Union, W. B. Leibel, and that Treasurer Leibel-when
served with a copy of the quarterly defense fund report in addition to Kolppa's
regular monthly report-customarily remitted the total amount shown as due, in
each report , in a single check drawn against the general funds of the Respondent
Union and made payable to the Montana District Council, as noted.
1942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record also shows that the Respondent Union's own defense fund, established
in accordance with the District Council's 1946 directive, has shown a balance of ap-
proximately $2,000 for some time, and that Treasurer Leibel makes no routine
transfers to the fund, now, from the Respondent Union's general funds. Insofar
as the record shows, in fact, the Respondent Union's own defense fund would appear
to be a dormant account. I so find.
The constitution and bylaws of the Montana District Council provide that its
local union affiliates "shall establish" dues of not less than $2.50 per month for all
beneficial and semibeneficial members. Insofar as the record shows, the Respondent
Union has always set its dues at a level which satisfies this requirement. The testi-
mony of Business Representative Weller, however, establishes that:
Historically, Local 3038 has maintained lesser, or cheaper, dues than other
Lumber and Sawmill Workers' Local Unions in the area having the same costs
of operation and the same obligations to meet from their revenues.
From the point of view of the District Council, this situation would appear to have
impaired substantially the Respondent Union's ability to "assume its fair share of
the financial responsibilities" regularly assumed by the Council's other constituent
locals. Secretary-Treasurer Weller testified that he took a "personal interest" for
several years in various efforts to persuade the membership of the Respondent Union
to increase the dues of the organization. Prior to the period with which this case
is immediately concerned, however, these efforts appear to have met with no
success.
B. The general course of events
1. The action of the Respondent Union on the suggested dues increase
On February 8, 1953, while in Missoula, Business Representative Weller attended
a meeting of the Respondent Union at which he again explained , to the membership,
the reasons why they ought to increase the local dues. Weller's testimony estab-
lishes that he reported the dues of the Respondent Union to be 50 cents per month
less than those "prevailing" throughout the District Council area; he suggested that
the Respondent Union increase its dues by at least that amount. A motion to that
effect was made, and the officials- of the Respondent Union decided to send out
notices, as required by its bylaws, to advise all of the union members that a pro-
posal to increase its regular dues by 50 cents per month would be voted upon at
the organization 's next regular meeting.
Pursuant to notice, the meeting was held on March 8, 1953. Business Repre-
sentative Weller was in attendance. His testimony establishes that he explained,
at length, the need for a dues increase; his remarks appear to have been intended
to convince the membership of the Respondent Union that the proposed increase
would put the organization on a "sounder financial basis" and that it could improve
the status of its own treasury thereby, substantially.
The pending motion to increase dues 50 cents a month was thereafter put to a
vote, by secret ballot. It did not pass. As soon as the results of the vote were
announced however , a "number" of the members took the floor to express the
opinion that some dues increase ought to be adopted . One member, unidentified
in the record, moved that the dues be increased by 25 cents per month. (Such an
increase , as the record shows, would only have enabled the Respondent Union to
compensate for the additional drain on its general funds occassionel by a recent
increase in the District Council 's per capita tax, in the amount of 25 cents per mem-
ber, which had become effective in September of the previous year.) The motion
appears to have been discussed at some length . Anton Iverson , a former union
official , raised a question , I find , as to the propriety of such a motion , at the time,
in view of the demonstrated unwillingness of those present to approve the dues
increase called for in the notice previously sent to the members. He was advised,
however, that any motibn to increase the dues of the Respondent Union, in an
amount not in excess of that specified in the notice, would be in order and could
properly be adopted if the membership so desired. Thereafter, however, in the
light of further discussion as to whether a 25-cent increase would be sufficient, the
motion was withdrawn.
At sometime during the discussion, I find, Gene Gendrow, a union trustee,
declared in words or substance that "the only thing to do " would be to reinstitute
the "dollar assessment" previously levied . A discussion followed . At some point,
I find , President Winters of the Respondent Union , in the chair , asked Gendrow,
in words or substance, "Do you make that as a motion ?" Gendrow replied in the
affirmative . But the discussion , I find , continued. Some time later, after further
ANACONDA COPPER MINING COMPANY 1943
discussion estimated by Gendrow as approximately one-half hour in duration, he
restated his motion . As restated and seconded, it appears in the minute book of
the Respondent Union as follows:
Moved & Seconded: that we leave dues as they are $3.00 per member each
month and pay the $1 .00 defense fund assessment in addition as we did in the
past making dues $10.00 per quarter.
Without further argument or debate the motion was put to a standing vote, and
carried. The added obligation thus assumed by the membership was to become
effective on the first of the following month, for the second quarter of the year-i. e.,
for the months of April, May, and-June.
The available evidence with respect to the Respondent Union's March meeting
reveals a substantial conflict as to the precise language of the motion put to a vote
and adopted. Goebel Dishman, the General Counsel's principal witness in this
connection testified positively as follows: That Gendrow, in the course of the dis-
cussion, had said, "Well, the only thing to do is to put the dollar assessment back
on"; that he had then been asked by President Winters if he intended his observa-
tion as a motion ; that he had replied in the affirmative ; that the motion thus pre-
sented had been seconded ; and that it was this motion , and not a restatement of
it, which the membership had adopted. He insisted that it was this motion to which
Iverson had objected, rather than the earlier motion for a 25-cent increase. Dish-
man could not recall any motion couched in the language of the official minutes-
but admitted that he could not recall everything that occurred. Several other
witnesses for the General Counsel testified with respect to Gendrow' s original observa-
tion or suggestion, and his subsequent assent to its consideration as a motion. They,
too, were unable to recall any subsequent restatement of the motion. They in-
sisted, indeed-as did Dishman-that there had been none. Gendrow did not deny
the remarks thus attributed to him, but insisted that he had rephrased his motion
before the vote-after a brief conversation with Dishman, in fact-and that the
minutes of the Respondent Union correctly state the motion finally put to the mem-
bership. And his testimony, in turn, was corroborated by that of several officers
and members of the organization. An inspection of the minute book reveals a
marked difference between the penmanship of the hand which recorded the initial
portion of the motion, and that of the hand in which the final words, "making
dues $10.00 per quarter" are written. Although a physical inspection of the minute
book will not support a definitive conclusion that the terminal words noted were
recorded at a different time, or by a different individual, their "cramped" appear
ance-in marked contrast to the free-flowing penmanship used to record the initial
words of the motion-certainly could support an inference that the final words of
the motion, "making dues $10.00 per quarter" as recorded, represent an after-
thought. For reasons hereinafter to be noted, however, I have accepted Gendrow's
testimony and that of the union officials-despite the questionable appearance of
the minute book-as an accurate reflection of the membership's intent when it
adopted the motion. In a larger sense, nevertheless-which I propose to explore
at length elsewhere in this report-the conflict is really immaterial. Whether the
extra payment required of the Respondent Union's membership was voted as a
"defense fund assessment" or as a "dues increase" the basic issue presented for
determination , in short , remains, in my opinion , unaffected.
As a witness for the General Counsel, Dishman also testified with respect to a
conversation he had with President Winters of the Respondent Union on March 9
at the Respondent Company's plant . Dishman , according to his own report, char-
acterized as "strange" the action of the union membership in rejecting the motion
for a 50 cent dues increase and then approving the imposition of an obligation
which amounted , in effect , to a 33 -cent monthly dues increase . President Winters
is alleged to have replied that if the matter had been brought up as a "dues" increase,
the membership would probably have rejected it. At this point in the conversa-
tion , apparently, Dishman observed that the Respondent Union had made a "mis-
take" by voting for the change as an assessment rather than as dues, and that they
might have trouble in the collection of an extra dollar from some members. Win-
ters, in words or substance , is alleged to have said that the manner in which the
increase was voted made no difference , that the membership would have to pay it
anyway, and that that was "all there was" to it.
President Winters, as a witness , was not called upon to affirm or deny Dishman's
testimony in this connection . Although my observations with respect to Dishman as
a witness have led me to conclude that his recollection of the Union 's March meeting
cannot be considered completely reliable, his testimony , as summarized above, with
respect to the comments of the union president was given without hesitation or qualifi-
1944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation . I do not consider the comments attributed to President Winters by Dishman
indicative of an acceptance of Dishman 's views with respect to the nature of the extra
payment required of the Union 's membership . Even if the matter were material,
therefore , I would not consider the conversation between President Winters and Dish-
man probative , on the issue of whether the extra payment was voted as an "assessment"
or a "dues" increase . The incident , as recited by Dishman , contains elements of
plausibility , however. I have, therefore , credited his testimony with respect to the
conversation in question.
Later on the same day, Dishman's testimony shows, Winters advised him that
the executive officers of the Respondent Union had conferred at noon; Winters is
alleged to have said, "This is all fixed up now," in conclusion. The available evidence
with respect to this conversation, also stands without contradiction. I find it worthy
of credit.
In connection with the present case, however , its significance is somewhat uncertain;
perhaps it could be said to provide some basis for an inference that the executive
officers of the Respondent Union had taken action calculated to eliminate all doubt
as to the character of the $1 quarterly charge as a dues increase, but such an in-
ference would be entirely speculative-supported in the record only by Dishman's
hearsay testimony.
At the Respondent Union's regular April meeting, in accordance with conven-
tional parlimentary procedure, the minutes of the March meeting were read by
Recording Secretary Johnson. They included a report on Gendrow's motion and the
action taken on it by the membership, in the language and form already quoted.
President Winters asked if any of the members had additions or corrections to offer
with respect to the minutes. None were offered-and the Respondent Union' s presi-
dent, I find, declared that the minutes would stand approved as read.
There appears to have been a consensus, if not a specific directive that the first $1
quarterly payment would become due and payable on April 1 for the second quarter
of the year-i. e., for the months of April, May, and June. The record shows, and
the parties have stipulated, that Financial Secretary Kolppa, when called upon to re-
ceipt the dues books of members in connection with their second quarter payments,
entered the $1 quarterly payment for the second quarter on the page in each member's
dues book set aside to record "Fines and Assessments" paid Specifically, it would
seem to be amply clear, and I find, that Kolppa receipted the dues books of all mem-
bers who paid their monthly dues and the second quarterly "assessment" as follows:
$3 per month was shown as paid, for each of the 3 months in the quarter, on the
"Dues" page of each member's dues book, and $1 was shown as paid, opposite an
appropriately dated entry, on the "Fines and Assessments" page of each receipted
book.
2. The refusal of E. L. Rouse to make the extra quarterly payment
On or about June 3, 1953, E. L. Rouse, an employee of the Respondent Company
and a union member since July 1947, conferred with Financial Secretary Kolppa at
the Respondent Company's recreational hall or "lunch room" in Bonner, Montana,
with respect to the payment of his second quarter's dues. Upon the entire record,
it is indicated and I find, that Rouse approached Kolppa with a declaration of his
intention to pay dues for the second quarter; that Kolppa requested $10 to settle the
obligation in full; that Rouse, in effect, questioned the Respondent Union's right to
require the payment of the $1 quarterly charge approved by the membership; that
Kolppa then called over President Winters and apprized him of the position which
Rouse had taken; that Winters told Rouse, in words or substance, that the dues were
$10 per quarter, and that he would have to pay the extra $1 in order to continue in
Respondent Company's employ, and that Rouse demurred and terminated the conver-
sation.
The record reveals a substantial conflict between the testimony of Rouse and that
of Kolppa and Winters as to the general course of their talk. Rouse, in substance,
testified that he had been informed of his obligation to pay $10 and that he had
questioned the purpose for which the "other" dollar was required; that Kolppa had
identified it as an "assessment " for the District Council 's defense fund ; that he had
tendered a $20 bill to pay $9 for 3 months' dues; that Kolppa and Winters had refused
to accept his money on that basis ; that he had refused to make the $1 quarterly
payment; and that he had then picked up his $20 bill and left the hall, with the obser-
vation that he had at least "offered" to pay his "regular " monthly dues. Kolppa de-
nied any tender by Rouse. His version of the conversation would indicate that Rouse
had been informed of his "dues " obligation for the second quarter in the amount of
$10; that he had immediately protested ; that President Winters had then been called;
that Rouse had been told he would have to pay the entire sum required in order to
ANACONDA COPPER MINING COMPANY 1945
continue in the Respondent Company's employ; and that Rouse had refused to pay
the sum requested, offering only $9 to settle his obligations for the second quar-
ter in full. If credited, Kolppa's testimony would indicate that the "extra payment" re-
quired for the second quarter had been identified, expressly, as a "dues increase" and
not as a defense fund assessment. For reasons to be set forth at length elsewhere
in this report, I have regarded this conflict as immaterial, and I have made no at-
tempt to resolve it. In sum and substance, Rouse and Kolppa appear to have dis-
cussed the extent of his obligation in terms of the amount required to establish his
membership in good standing for the second quarter. Kolppa appears to have in-
sisted that a $10 payment would be required, and the president of the Respondent
Union appears to have supported his position. Rouse, in the ultimate analysis, merely
refused to recognize his obligation to pay the full sum demanded.
3. The Union's request for the discharge of Rouse
On June 4, James E. Johnson, the Respondent Union's recording secretary, dis-
patched a letter to the Respondent Company, at the request of Kolppa, with respect
to Rouse's situation. It read as follows:
Pursuant to Article III of our working agreement with you, this is to advise
that E. L. Rouse, an employee of the Company, is delinquent in the payment of
the Union Dues and/or Initiation Fees to Local 3038.
The Union Dues referred to above only includes the periodic dues uniformly
required of all members as a condition of retaining membership in Local 3038.
Unless paid in full within 15 days of your receipt of this letter, we request the
discharge of the above-named employee as provided by Article III and without
further recourse.
The Company appears to have received the letter on the day it was written. On
the same day, Sales Manager H. R. Dix of the Company's lumber department dis-
patched a letter to Rouse, advising him of the fact that Johnson's letter had been
received. The last two paragraphs of the letter were quoted. Dix, however, gave
no other indication of the Respondent Company's position with respect to the Union's
request.
Rouse received the Respondent Company's letter on June 5. On Tuesday or
Wednesday of the following week he visited the office of H. F. Root, the manager of
the Respondent Company's lumber division. Declaring that his visit had been moti-
vated by the Company's letter, Rouse informed Root that he had attempted to pay
his dues, but that the Union had refused to accept his "regular monthly dues" be-
cause of his refusal to pay a $1 assessment. Rouse insisted that Johnson's letter mis-
represented the situation, since he had never refused to pay his "regular monthly
dues" and had only disputed his alleged obligation to pay the "assessment" in
question? In the light of his contention, Rouse advised Root that he would appre-
ciate a statement of the Company's position from James Dickey, its "attorney" in
charge of labor relations matters. Root declared, I find, that he expected to be in
personal contact with Dickey shortly; and he suggested that Rouse return on Friday
of the.following week for a reply.
In the meantime, on or about June 9, Rouse had again attempted to settle his
obligation to the union for the second quarter of the year by the transmittal of a
check in the amount of $9 to Financial Secretary Earl Kolppa. The check appears
to have borne a notation indicative of its submission in full settlement of Rouse's
obligation with respect to his April, May, and June dues. In a letter dispatched on
the 11th of the month, Kolppa returned the check. His message to Rouse read as
follows:
Enclosed herewith your check in the amount of $9, which you have "ear-
marked" April-May-& June Dues.
This check is being returned because there is an arrearage owed by you to
Local 3038 of $1.00 for the Second Quarter of this year.
You are well aware that dues of this Local Union are now $10.00 each quar-
ter. This $10.00 dues is levied equally on all members of which you are one.
Therefore, correct this check to include the $1.00 arrearage and return.
Rouse, insofar as the record shows, took no immediate action. He appears to have
been awaiting the Company's statement of its position.
2 Root, I find, gave no indication of his own opinion as to whether an assessment or
a dues obligation was involved.
1946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Earl Fuller's inquiry
At sometime during this period, Rouse appears to have discussed this situation,
and the Union's position with respect to his dues obligation, with Earl Fuller, a fellow
employee. Fuller was not a union member. The record establishes, however, that
his financial obligations as a "permit" worker approved by the Respondent Union,
under the terms of its agreement, were fully satisfied. His status as a company
employee therefore, insofar as the Union was concerned, appears not to have been
in question . Fuller sympathized with Rouse's position in regard to the alleged as -
sessment . As a result of their conversation, he volunteered to send a letter of inquiry
with respect to the matter to James Dickey, at the Respondent Company's main
office. His letter, as dispatched on June 9, read as follows:
Dear Mr. DICKEY:
I would like [your opinion] on relations of the working [ agreement] at
Bonner.
In March the Local voted down a rise in dues, the next item of [business]
was an [assessment ] of $1.00 per [quarter], this is carried in dues books of
members as $3 00 credit each month and $1.00 [assessment] credited on the
[opposite] page of the dues book
E. L. Rouse has offered to pay $3.00 per month. This was refused by the
Union, [immediately] a notice by the Company to pay within 15 days the
Union Dues. Mr. Rouse has sent a check to the Union covering same month
dues by registered mail.
I sent a check for $6 00 marked for June and July dues and they returned
it today.
Under this agreement will we be discharged and when?
[The brackets, above, enclose words misspelled in the original.]
Fuller's letter concluded with the observation that he had still not signed up with
the Union and that he was deprived of privileges as an employee.
The letter from the Union to which Fuller referred was received in evidence.
It had been dispatched on June 9 by Financial Secretary Kolppa. In terms substan-
tially similar to those later used by Kolppa in his letter to Rouse, Fuller was in-
formed that his check for $6 was being returned since it had been "ear-marked" for
June and July dues and could not be credited to his account. Fuller was informed
that the dues of the Respondent Union amounted to $10 a quarter and that he
owed the sum of $1 for the second quarter. He was asked to make out a new
check for $7 or to return the $6 check with another dollar, after which he would
be credited with "the dollar owed of the second quarter" and his June and July dues.
5. Further developments
On June 18, 1953, representatives of the Respondent Company and the Union
met to negotiate certain matters in connection with their agreement.3 At sometime
during the conference Business Representative Weller raised a question as to the
Company's intentions with respect to the discharge of Rouse. He was informed by
Root that Rouse had challenged the accuracy of the Union's notice that he,was a
dues delinquent, contending that his delinquency related only to the matter of the
$1 assessment. The union representatives were informed, in substance, that Rouse
did not believe the "assessment" to be a part of his dues obligation.
Root, as a witness, described himself as "reluctant" to dismiss Rouse, and ex-
pressed the opinion that his reluctance to take such action had probably been
apparent.
Weller as the principal spokesman for the Respondent Union, advised the Re-
spondent Company's manager that Rouse was in error, that the amount in dispute
had been voted as a dues increase, and that his obligation to pay it could be en-
forced under the union-security provisions of the current agreement . At some point
in the discussion , I find, Dickey observed that he had received an inquiry from Fuller
with respect to the matter in issue. The business representative appears to have
3 James Dickey, in his capacity as assistant to the western vice president of the Respond-
ent Company, Root, Dwight Hughes-the Company's timekeeper at Bonner-and a Mr.
Bright, an observer for the Timber Products Manufacturers Association, were present for
the Company. Business Representative Weller, President Winters, Recording Secretary
Johnson, and at least two other employees of the Company were present as union
representatives.
ANACONDA COPPER MINING COMPANY 1947
replied that Fuller was not yet involved in any dues delinquency, but that his let-
ter of inquiry could be taken as an indication that he might be. Weller assured the
company representatives that the Union considered Rouse to be delinquent only
with respect to his "dues" obligation, within the meaning of that term as used in
their agreement-and went on to assure the Company that the Union, if held in
error with respect to its contention, would assume full responsibility for any liabili-
ties incurred in connection with Rouse's discharge.
Someone, possibly Root, asked whether the Union's contention, and its commit-
ment with respect to Rouse, ought not to be recorded in written form. Dickey,
however, observed that a good-faith relationship between the Company and the Re-
spondent Union required the former to accept the word of the union representa-
tives upon occasion-and no attempt, therefore, was made to press for a written
union commitment.
Insofar as the record shows, no one at the conference requested the union rep-
resentatives to explain or justify their contention that the $1 charge protested by
Rouse involved a dues increase rather than an assessment. No company representa-
tive, in short, requested a further "clarification" of the Union's position. The dis-
cussion, in its totality, appears to have involved nothing more than an assertion by
the Company that it expected to observe article III of its union agreement, and an
assertion by the Union that Rouse's case involved only "dues" and would be gov-
erned by that article of the contract.
On the morning of Friday, June 19, Dwight Hughes, the Respondent Company's
timekeeper, sent for Rouse. He was informed, in substance, that the Company's
letter of June 4, addressed to him upon receipt of the Union's request with respect
to his discharge, would have to "stand"; that the officials of the Respondent Com-
pany had decided that the union-security clause in its agreement with the Respondent
Union would "hold" in the case; and that the firm would have to follow the regular
procedure outlined therein if Rouse failed to adjust the matter of the delinquency
with his labor organization .4
Rouse immediately prepared a check in the amount of $10, dated it currently-
the 19th being the last day of his 15-day grace period under the agreement-and
submitted it, with his dues book, to a guard at the Company's plant for transmittal
to Financial Secretary Kolppa. The check was marked on its face, I find, to show
that it covered "Dues and Assessments for second quarter April, May and June."
The check appears to have been accepted by Kolppa, however, without question.
When Rouse received his receipt dues book it showed-in accordance with Kolppa's
practice in other cases-that $3 had been paid for each of the 3 months in the
second quarter of the year as "dues" and that $1 had been paid as a "fine or assess-
ment" for the quarter in question.
Hughes, the record shows, also spoke to Earl Fuller on the morning of the 19th.
Dickey, I find, had shown him Fuller's letter at the conference on the previous day
and had instructed him to advise Fuller that the Company would have to "abide"
by the union-security clause in its agreement if circumstances ever arose which
might require its application, as to him. Fuller was so informed. According to
Fuller, Hughes told him "that as far as he was concerned we would have to pay
this dollar assessment, that he had no way of determining what it was, but he was
told to tell me that it would have to be paid." This testimony with respect to the
timekeeper's remarks, though more detailed than that offered on behalf of the
Respondent Company, is not inconsistent with the version offered by the Company's
witness. For reasons to be noted elsewhere in this report, I find it unnecessary to
determine whether Hughes referred to the extra quarterly payment as an "assess-
ment" or whether he actually said that the Company had no way to determine
whether it involved an assessment or a dues increase. Fuller declared that he would
pay his dues under protest. The record shows that he made out a second check in
the amount of $1 earmarked as a "pressure payment" and that he mailed it with
his original $6 check, to the Union's financial secretary.
Subsequently Fuller received receipts for each of the amounts he paid. No re-
quest for his discharge as a result of the questions raised by him was ever made by
the Respondent Union or received by his employer.
b The record establishes that Dickey and Root had instructed Hughes, at the confer-
ence , to inform Rouse as soon as possible that, in their opinion, he and the Company would
have to "abide" by the union-security clause in connection with his delinquency. The
testimony of Rouse with respect to the timekeeper's remarks indicates that he identified
the Company's decision, when requested, as a decision reached by Root and Dickey. I so
find.
1948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The change in the Union's record procedure
As previously noted, Financial Secretary Kolppa was currently receipting all dues
books to show $ 9 paid as dues for the year 's second quarter, and $ 1 paid as an
assessment . All payments for the second quarter and some tendered for the third
quarter of the year appear to have been so receipted . Kolppa testified , in effect,
that he had followed the practice in question because he had followed it in connec-
tion with the earlier 1950-1951 assessment , and because it had seemed natural and
"convenient" to resume his prior routine. I credit his testimony , and have concluded
that the method he used to receipt the dues books was-in sum and substance-
adopted without thought of its significance in relation to the problem of the present
case. Late in July-apparently after the charges filed in this case had come to
the attention of the Union and its business representative-Kolppa changed his
procedure . The record establishes that he did so at the suggestion of Business
Representative Weller. Since the change , he has been receipting the dues books of
paid up union members to show $4 paid as dues for the month in which the payment
was made, and $3 paid as dues for each of the other months in the quarter.
7. The September meeting
At the Union's regular September meeting, President Winters took cognizance of
the apparent conflict, in the minds of some union members, with respect to the
nature and purpose of the $1 quarterly payment. He requested , I find, that the
minutes of the March meeting be read . The disputed motion was read , inter alia,
in the form noted previously in this report. There appears to have been general
recognition of the fact that the motion , as read from the minutes , called for a "dues"
increase . Despite an intimation by two members at least, that the minutes-as
read-might not reflect , accurately, the motion adopted in March, it was pointed out
that the minutes-as read-had previously been read in April , and that they had been
approved as then read. No effective challenge addressed to the motion-as
read-appears to have been made.
C. Conclusions
1. The statutory policy
The Act, as amended, provides that it shall be an unfair labor practice for a labor
organization or its agents-
. . . to cause or attempt to cause an employer . . . 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 uniformly required as a condition of ac-
quiring or retaining membership . [ Emphasis supplied.]
Employers are likewise forbidden to discriminate in regard to hire or tenure of em-
ployment , or any term or condition of employment , to encourage or discourage
membership in a labor organization , except to the extent that such action may be
permitted or required of them under union-security clauses in agreements executed
in conformity with certain conditions precedent , established , and defined in the Act,
as amended . The statute provides , however , that no employer may justify discrimi-
nation against an employee for nonmembership in a labor organization-
. if he has reasonable grounds for believing that membership was denied
or terminated for reasons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as a condition of ac-
quiring or retaining membership . [ Emphasis supplied.]
Viewed in the light of this statutory policy, the issue presented for determination
may be phrased , therefore , as follows: Did the Union 's request for the discharge of
Rouse involve an "attempt to cause" the Respondent Company to discriminate against
him on some ground other than his failure to tender the "periodic dues . uni-
formly required " of the Respondent Union's members as a condition precedent to
the acquisition or retention of membership ? For the purpose of the instant case,
it may be taken as datum that the Union 's request for the discharge of Rouse in-
volved a unilateral determination , immune from collateral attack, that his "mem-
bership" in good standing had been "terminated" as a result of his indicated refusal
to tender the extra $1 payment required. The Electric Auto-Lite Company, 92
NLRB 1073 , 1078, footnote 11. Insofar as the Respondent Company is concerned,
there would seem to be no question with respect to the validity of the union-security
ANACONDA COPPER MINING COMPANY 1949
clause in its agreement with the Respondent labor organization Any discrimina-
tion with respect to the tenure of Rouse 's employment , therefore , to encourage
membership in the Respondent Union, would appear to be privileged-unless the
General Counsel has been able to show, upon a preponderance of the testimony
taken, that the Respondent Company or its agents had reasonable grounds for a
belief that Rouse 's "membership" in good standing had been "terminated " for a rea-
son other than his failure to tender the periodic dues uniformly required as a condi-
tion precedent to the acquisition or retention of a union membership status.
A complete determination of the issue thus presented would seem to call, at the
outset, for a decision as to whether the amount which Rouse failed to tender consti-
tuted a part of the "periodic dues . . . uniformly required " by the Union as a con-
dition precedent to the acquisition or retention of membership status. To that ques-
tion , therefore , this report now turns.
2. The contentions
The General Counsel contends , essentially , that the $1 quarterly payment de-
manded of every union member for the second quarter of the year and subsequent
quarterly periods was voted as an "assessment" and not as a dues increase. It is
asserted , at the outset , that Gendrow 's motion was offered after a motion to increase
the regular "dues" had been defeated ; that, as presented to the membership , it called,
in terms, for the reimposition of an assessment ; that it specifically differentiated the
sum to be paid from the regular monthly dues ; and that it made no reference to
the amount involved as a part of the Union's regular dues. Secondly , it is contended
that a number of the union members understood the motion , as adopted , to call for
an assessment rather than a dues increase-and that President Winters, after the
event, had in effect recognized the justice of such an interpretation . Thirdly, the
General Counsel points to the fact that Financial Secretary Kolppa clearly demon-
strated the views of the union leadership with respect to the nature of the required
quarterly payment when he receipted the dues books of those who paid it on a
page reserved to record "Fines and Assessments " paid, as distinguished from dues.
And finally, it would seem to be the General Counsel 's contention that the Union's
view of the quarterly payment as an "assessment " was confirmed by its request for
the discharge of Rouse in June-before he became a dues delinquent under the terms
of the organization 's constitution and bylaws , but after the expiration of the period
within which "assessments" supposedly became due and payable .5 The position of
the General Counsel in this connection would appear , in substance , to involve a con-
tention that Rouse was not scheduled to become dues delinquent under the terms
of the Respondent Union 's constitution and bylaws until the end of June, if his regu-
lar monthly dues remained unpaid as of that date, and that-as of June 4-his "ar-
rears" could , of necessity , relate only to the unpaid "assessment" involved in the
$1 quarterly payment
As opposed to these contentions , the Union argues that Gendrow 's motion, al-
though it referred to a previous "dollar assessment" by its terms , should be con-
strued in its totality, and in the light of the circumstances which led to its presenta-
tion, as a motion for a dues increase ; that the membership so understood the mo-
tion, as evidenced by the absence of an attempt on the part of any member present
at the Respondent Union's April meeting to offer an amendment or correction of
the previous month 's minutes as read, that Kolppa's treatment of the quarterly pay-
ment as an "assessment" when he receipted dues books involved nothing more than
a carryover , in the absence of instructions , of his practice with respect to the earlier
"Defense Fund Assessment" previously noted ; that his practice in this connection
was modified in July, after the Respondent Union was put on notice that a sub-
stantial question with relation to the nature of the quarterly payment had arisen;
that his practice with respect to the dues records ought to be regarded , in any event,
as immaterial ; and that any references to Rouse as a member in "arrears" or dues
delinquent , under the Respondent Union's constitution and bylaws, ought to be taken
at face value.
e Under article VIII , section 4 , of the Respondent Union 's constitution and bylaws
monthly dues are made payable on the first of each month , but members are not constd-
ered in "arrears" with respect to their beneficial membership in the organization until the
end of the month in which they owe a sum equal to 3 months ' dues . Under section 3
of the aforesaid constitution , however , assessments are declared to be payable within 3t
days after the date on which they are levied , and members not paying such assessments
are to be considered dues delinquent.
1950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the course of his argument , Business Representative Weller of the Union-when
taxed with the provisions of its constitution with respect to arrearages in the payment
of "assessments" within 30 days and dues arrearages after 3 months-pointed to the
fact that section 5 of article VIII , in the Respondent Union 's constitution and bylaws
requires members to pay each month 's dues not later than the first day of the follow-
ing month in order to remain eligible for employment under union -shop working
agreements , and directs the financial secretary-after the first day of each month-to
notify the proper employer of any member not eligible for employment under the
constitutional provision , with a request that the member be discharged within 15
days unless all dues ( including the current month 's dues ) are paid within the time
specified . In the Union 's brief, also , it is pointed out that Rouse had failed or re-
fused to pay his regular dues for the first 2 months of the quarter, with respect to
which no assessment or dues increase allegedly was applicable ; the "extra dollar"
payment is described as payable at any time during the quarter , and thus not due be-
fore the end of the quarter . The Union contends , therefore , that no dues delinquency
involving the quarterly $ 1 payment could have arisen , or be the subject of corre-
spondence on the part of its financial secretary , during the third month of the quarter,
and that any references to Rouse's "arrears" must have related to his unpaid April
and May dues.
I have considered each of the contentions summarized above, as advanced on be-
half of the General Counsel and the Respondent Union. In the main, I have found
them to be concerned with immaterial matters. Their acceptance or rejection, in my
opinion , would be of no assistance to the Board in its effort to determine the basic
question presented for decision.
3. Analysis
This Board has had occasion , in a number of representation cases under its gov-
erning statute , to consider whether contracts which require the payment of regular
monthly dues and "assessments" as a condition of continued employment fall within
the permissive language of the second proviso to Section 8 (a) (3) of the Act, as
amended . It has uniformly held that they do not-and that such contracts , there-
fore, cannot serve to bar the resolution of an otherwise genuine question with respect
to representation . International Harvester Company, Foundry Division ( Louisville
Works), 95 NLRB 730; Continental Can Company, 98 NLRB 1252; Federal Tele-
phone and Radio Corporation, 98 NLRB 1324; National Malleable and Steel Cast-
ings Company, 99 NLRB 737. In the International Harvester case, supra, which set
the pattern in this respect , the Board had occasion to consider at length the legislative
history of Section 8 (a) (3)'s second proviso. If found , in substance , that Congress
had intended to legislate with respect to the failure or refusal of employees to pay non-
periodic assessments , even though uniformly levied, as a basis for discharge or other
discrimination against employees . The assessments defined by the contract in issue
as collectible on pain of discharge , in the International Harvester case, were "general
assessments" uniformly levied against all members of the union involved . The Board,
however, found expressly that they were not "periodic" and that the contract which
provided for their payment as a condition precedent to continued employment, there-
fore, exceeded the permissive language of the statute . Its decision in this connec-
tion read as follows:
The constitution of the [ union] . . . provides that assessments may be levied
in the following ways: ( 1) By the executive board of the International acting
independently , up to 1 dollar per member annually; ( 2) By the local unions, in
certain situations and under specified conditions ; and (3 ) By the executive board
with the approval of a majority of all the union members , in any amount and at
any time. Under each of the methods, the time and the amount of the assessment
are variable and not a matter of certain prediction . A standard dictionary de-
fines periodic in its principal meaning as "Characterized by periods , occurring
at regular stated times, acting , happening or appearing at fixed intervals." The
assessments provided for in the contract do not appear to contain any element of
regularity or periodicity . In these circumstances we fail to see any support
for the contention that such assessments are included within the phrase "periodic
dues" as enacted. . . .
The vice, in short, of any contractual arrangement which provides for the payment
of general assessments , however uniformly levied, as a condition of continued em-
ployment , is to be found in the absence of regularity or "periodicity" as the Board has
defined the term.
In the Federal Telephone case, the Board found that the contract urged upon it
as a bar required the payment of "special dues" as a condition precedent to con-
ANACONDA COPPER MINING COMPANY 1951
tinned employment . It also found , however , that the "special dues" consisted of
fines levied on individual members for their failure to attend meetings. This
fact-of course-would seem to be sufficient to differentiate the problems implicit
in the case from those in the case at bar . And the General Counsel 's reliance upon
the case, therefore, would seem to be misplaced. Fines obviously cannot be said
to fall within the concept of "periodic dues . uniformly required ," as used in
Section 8 (a) (3)'s second proviso. Pen and Pencil Workers Union, 91 NLRB
883; The Electric Auto-Lite Company, 92 NLRB 1073; Westinghouse Electric Cor-
poration , 96 NLRB 522. The difficulty in these cases would seem to be obvious.
Fines, by their very nature, have a sporadic and "personal " quality; it would seem
to be entirely clear that, intrinsically, they could not be periodic or uniform in their
application.
In the present case, however, we are confronted with a financial requirement which
is, by its terms, periodically collectible and uniformly levied. There is no reliable
evidence that the obligation involved is limited in time, insofar as the record shows,
it was voted for an indefinite period, subject to change , decrease , elimination, or
further increase at the discretion of the Union 's membership . It would seem to
meet every term laid down in the statute to define the obligations collectible from
union members , on pain of discharge , under a union -security clause; yet the Gen-
eral Counsel contends , in effect, that the $1 quarterly payment here in issue should
be excluded from the concept of "periodic dues . uniformly required" because
it was designated as a "dollar assessment " in the motion passed by the membership;
because certain members and officials of the Union may have referred to it as an
assessment , and because the financial secretary of the Respondent Union recorded
its receipt as an "assessment" paid, in the dues books of the membership , before being
made aware of the fact that his action had influenced, in part at least, a decision
by certain employees to present the issue for determination by this agency.
I find no merit in these contentions . They attribute undue significance to form,
as opposed to substance . In the course of oral argument , the General Counsel's
representative conceded , at one point , that the basis of the complaint in this case
would disappear if the Union were to reenact its requirement with respect to the
quarterly $ 1 payment and designate it, expressly, as a part of the Union 's "periodic"
dues. Does this indicate that the General Counsel considers the vice in the present
situation to lie in the use of the word "assessment" rather than "dues" to designate
the payment in issue? Would any attempt to enforce the regular payment of an
extra $1 per quarter , in addition to the Union 's established monthly dues, subject
the Union in equal measure to the proscriptions of the Act, if it were designated as
a duty? A fee? A contribution? A donation? A subscription? A toll? A
tax? A levy? Or a tithe ? Is it the absence of a proper incantation , duly noted
in the union 's minute book, which renders the sum involved here uncollectible
under its agreement with the employer involved ? I cannot believe that Congress
anticipated invocation of the statutory sanctions at the Board 's disposal merely
because of a labor organization 's failure to designate as "dues" a periodic financial
obligation uniformly required of its membership.
In the Electric Auto-Lite case, it may be noted , the Board found-expressly-that
fines levied on particular union members who failed to attend the meetings of the
organization there involved could not be made part of the union 's "periodic dues"
payments , within the meaning of the statute , by a constitutional definition of the
"dues" concept which included such levies . I find no reason, in logic , to reject
the obverse of that proposition-to the effect that a union cannot , by its failure
to designate a particular levy as dues, remove it from the "dues" concept as statu-
torily defined.
In oral argument , when taxed with these considerations , the General Counsel's
representative advanced an alternative argument. He presented a contention, in
effect , that the quarterly payment in issue ought not be considered a part of the
"periodic dues . . . uniformly required" because of the fact that it had been sepa-
rately levied , for a specific purpose. If I have apprehended this contention cor-
rectly, the General Counsel 's representative does not argue that the "assessment"
falls outside of the permissive language of the statute merely because it was voted
to assist the Respondent Union in the discharge of its obligations with respect to
the District Council's defense fund; he would argue, apparently, that any regular
payment required of a union 's membership to serve a designated purpose ought to be
excluded from the "periodic dues" concept-without regard to uniformity of its
application-if levied separately and apart from the organization 's regularly stated
dues requirement.
I find the contention deficient in merit . Even if it could be assumed , arguendo,
to have some general validity , I would have to find it inapplicable here. The record
1952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishes , without contradiction , that the Respondent Union's obligation to the
defense fund of the District Council did not require per capita quarterly remittances.
Under the terms of the proposal approved by its constituent locals in 1950 , the obli-
gation imposed in the name of the District Council involved no individual charges;
it was expressly defined as an obligation of the Council 's affiliated local organza-
tions. They, in turn, have been required to satisfy that "standing " obligation, ob-
viously, out of their general funds. The testimony of Business Representative
Weller establishes , and I have found, that each of the Council 's constituent locals
was left free to determine for itself the manner in which its general funds might be
augmented , in order to make possible the satisfaction of the additional burden
assumed in connection with the quarterly payments required for the District Coun-
cil's fund. In the case of the Respondent Union, the necessary adjustment-after
a 21/2-year period of experimentation-called for a per capita payment by each
member of $ 1 per quarter in addition to the Union's regularly established monthly
dues.
Rudolph Treichel , a witness for the General Counsel , testified that Gendrow, in
the course of discussion , had referred specifically to the fact that the Respondent
Union would have to figure out a way to bring its dues "up" to where they "be-
longed" so that the Union could maintain itself in "good standing"; Treichel 's version
of Gendrow 's motion indicates that Gendrow moved to put the dollar assessment
"on" and to "use " it with the Union's regular dues , to maintain good standing most
probably, of course, with the District Council. I so find.
It is clear , however , and I have found, that these quarterly payments , when made,
were not earmarked for any "special " or particular purpose. When collected, they
became a part of the "general funds" of the organization . As such they were inex-
tricably commingled with other funds derived from the Union 's monthly dues levy
and any initiation fees collected . The testimony of Treasurer Leibel establishes,
without contradiction , that he received money from Kolppa once a week, in "lump"
sums, and that Kolppa never has to account for the origin of any funds he turns
over , or specify the purpose for which they have been collected . Treasurer Leibel
makes no direct allocations of the money he receives ; it all goes, I find, into the
Union 's general fund . Whatever may have motivated the membership of the
Respondent Union therefore , in its approval of the quarterly levy, the funds col-
lected as a result certainly cannot be traced , in a legal sense, through the general
funds of the Union to the District Council 's fund.
There can be no doubt , upon the entire record, that the Respondent Union's
obligation to contribute to the District Council defense fund, when taken in con-
junction with its other obligations , represented a substantial drain upon its financial
resources , and that the quarterly payment called for by the March vote of the
Union's membership was specifically intended to enable the organization 's treasury
to meet the obligation in question . Such a conclusion , however, is not equivalent
to a finding that the sums collected by virtue of the $1 quarterly levy were "ear-
marked" for a specific purpose. The record , considered as a whole, will not sup-
port any such contention.
On the facts , therefore , the argument to which our attention has been directed,
would seem to have no application. I so find.
Even when considered in vacuo, however , the General Counsel's argument is
unpersuasive . Essentially , it may be reduced to this- If the funds required by a
labor organization are raised by a uniform levy and collected at regular and periodic
intervals , in the form of a single sum from each member, they may be collected on
pain of discharge , under a union-security agreement otherwise valid , without regard
to the use or uses td which the money will be put. But if the union has provided
for the collection of the money it needs in two or more sums, separately levied, with
provision for the "earmarking " of one such sum, in whole or in part , for any desig-
nated purpose , payment of the latter sum by individual members may not be en-
forced by threats of discharge under a union security contract otherwise valid, even
though each of the amounts to be collected may be uniformly levied and periodically
due. Such a policy would bottom the enforcement of the Act and the effectuation
of its objectives upon semantic differences in union minute books . I cannot believe
that Congress intended , or would approve , such a result.
As the Board has pointed out, in the Electric Auto-Lite case, it is not the "means
adopted" to institute a particular charge which ought to be determinative , but its
"necessary and intended effect" in imposing a personal penalty, a nonrecurring
liability, or a regular and recurrent obligation.
The distinction , in practice , between periodic dues" and "assessments" has rarely
been a subject of judicial discussion. Some decisions in the field, however, would
appear to be worthy of note. The concept of "dues" for example , has been defined
ANACONDA COPPER MINING COMPANY 1953
to refer to the obligation which members of an organization assume to pay a sum,
usually fixed by its bylaws, at recurring intervals, for the maintenance of the organ-
ization and its general upkeep, Thompson v. Wyanduch Club, 127 N. Y. S. 195, 200,
Greenwald v. Chiarella, 57 N. Y. S. 2d 765, 769. In other cases, the concept of an
"assessment" has been said to imply a burden imposed in invitum, [i. e., compul-
sory] and a single act, as distinguished from recurring acts-an essential element
of the "dues" concept as above defined. Fresh Meadow Country Club v U. S,
17 F. Supp. 400, 401 (D. C. N. Y.); In re Monroe Chapter No. 57 0. E. S., 228
N. Y. S. 248, 255. In another case, which involved an interpretation of these con-
cepts under the Federal internal revenue statutes, dues were defined as the stated
amounts which club members may be obligated to pay periodically for the continu-
ing privilege of membership, while an assessment was said to involve a specific de-
mand or request by a club, addressed to its membership as a whole-or to a class
of members-for a "certain sum" payable in stated proportions by each member.
Garden City Gold Club v. Corwin, 57 F. 2d 283, 286 (D. C. N. Y.). The distinc-
tions thus drawn are revelatory-and, in my opinion, crucial. The terms with which
we are here concerned have also been considered, at some length, in a number of
cases involving the taxation of "dues or membership fees" under the Federal internal
revenue laws. The test evolved in these cases, however, to distinguish between
"dues and membership fees" on the one hand and "assessments" on the other, does
not appear to be particularly relevant in the context of the instant matter. I have,
therefore, refrained from a detailed consideration of the cases in question. See
White v. Winchester Country Club, 315 U. S. 32, Merion Cricket Club v. U. S.
315 U. S. 42; Hardt v. McLaughlin, 25 F. Supp. 684, 686 (D. C. P. A.); Weld v.
Nichols, 9 F. 2d 977.
In the only other case revealed by research which even approximates-on its
facts-a problem comparable to the one now presented for decision, the court de-
clared that:
neither the word "dues" nor the word "assessment" should be used as a
slogan to express a meaning foreign to the one which patently was intended
by all parties interested in its interpretation. Conceivably the word "dues" may
be used as a cover for the collection of a sum which, when viewed in the light
of surrounding circumstances, is actually and in legal sense nothing more than
an assessment. Likewise, the word "assessment" may be used in such a sense
that its intended meaning, viewed in the light of surrounding circumstances, is
nothing more or less than fees or dues. . The question presents itself here
as to what was really meant by this annual so-called assessment of the Club.
In making answer, we may resort to the practical construction of the parties
and to the plan, purpose and effect of the process by which the periodical pay-
ment of dues for the privilege of membership was provided. . . . The fact ap-
pears without contradiction, that this so-called assessment was to cover the ex-
penses for the ensuing year and not to cover expenses already incurred. This
sum by fair construction constitutes "fees" or "dues" . I think that the
word "assessment" as used in plaintiff's by-law . is a misnomer. Fair and
legal construction of the by-law here involved, leads to the conclusion that it
was really a provision for the regulation of annual dues. [Emphasis supplied.]
Rainbow Falls Fish and Game Club v. Clare, 29 N. Y. S. 2d 948, 950-951.
In my opinion, the periodic character of the $1 quarterly payment, and the fact that
it is uniformly levied, ought to be dispositive of the issue this case presents for de-
cision. If any residual doubt could be said to remain, however, the considerations
suggested in the quoted decision, and others to which reference has been made
would seem to be entirely sufficient to resolve all questions. The "assessment" with
which we are concerned obviously involves nothing more than a payment, at re-
curring intervals, for the maintenance of the Respondent Union and its general up-
keep. And there can be no doubt that it was intended to enable the Respondent
Union more readily to meet a continuing obligation, rather than to dispose of a
fixed and determined liability, already incurred. In terms of the statute which this
Board is called upon to construe and apply, and by every standard which judicial
ingenuity has been able to devise for the resolution of similar questions, the quar-
terly payment here in issue ought to be classified as a part of the Respondent Union's
"periodic dues . uniformly required" as a condition precedent to the acquisition
and retention of membership In oral argument, the General Counsel effectively
conceded that Congress must have intended to "legitimatize" financial demands by
a union which relate to the ordinary connotation of dues, "the ordinary connotation
of dues being a levy of monies for the usual and ordinary purposes of union busi-
338207--55 -vol. 110-124
1954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness." I have found no reason, in law or logic , to doubt that the maintenance of a
defense fund is a usual and ordinary activity on the part of a labor organization.
The General Counsel 's representative has attempted , with notable energy and
perspicacity-as this report shows-to differentiate the alleged "assessment" involved
in this case from the periodic "dues" levied by the Respondent Union on a monthly
basis. Every such attempt however , in my opinion , has involved the elaboration
of a distinction without a difference . In the fulfillment of its statutory obligation
and in order to deal "justly" with the respondent unions and employers cited in these
cases, the Board must eschew such Byzantine logomachy . Distinctions grounded in
differences of language or form , as opposed to differences of substance , will never
effectuate the objectives of the Act, as amended.
Upon the entire record, therefore, I find that the $1 quarterly payment required of
Rouse and the other union members , pursuant to motion , constituted a part of the
"periodic dues . uniformly required" as a condition precedent to the acquistition
and retention of union membership. The Union , accordingly , was privileged to con-
sider Rouse a dues delinquent when apprised of his unwillingness to make the $1
quarterly payment , and to demand his discharge as such , under the terms of its
union-security agreement with the Respondent Company, in the event of his failure
to meet the obligation in question within 15 days after notice. The constitution and
bylaws of the Union , as previously noted , provided in effect that members would be
considered in "arrears" insofar as their membership rights were concerned only after
their delinquency covered dues for a 3-month period-but went on to provide that
members would be subject to a union demand for their discharge under any ap-
plicable union-security agreement , if 1 month in arrears . And it would follow, of
course-if the obligation in question did involve dues rather than an assessment-
that the Respondent Company, after the receipt of assurances from the responsible
union officials with whom it customarily dealt , could not have had "reasonable
grounds" for a contrary belief. This being the case, its oral declaration to Rouse,
through Timekeeper Hughes, of its intention to abide by the terms of the union-
security clause in its trade agreement , cannot be said to have involved discrimina-
tion with respect to his tenure of employment , or that of any other employee, to en-
courage union membership , or interference , restraint , and coercion with respect
to their exercise of rights statutorily guaranteed.
Since my conclusions with respect to the nature of the obligation at issue are dis-
positive of the case, I have found it unnecessary to consider whether Fuller or any
other company employee "stood in the shoes" of Rouse as a victim of union or
employer unfair labor practices . Insofar as the Union is concerned, however, it may
be noted that its contentions with respect to Fuller have been most ably and persua-
sively briefed . And since I have found the Respondent Company's belief-with re-
spect to the nature of the obligation which the Respondent Union sought to enforce-
to be consistent with the facts , it would seem to be unnecessary for me to consider
any questions-otherwise implicit in the case and persuasively argued by Employer's
counsel-as to the reasonableness of the Company 's belief that it was being called
upon to enforce , by threat of discharge , nothing more than a "dues" obligation. The
Company relied primarily upon Westinghouse Electric Corporation (Sunnyvale
Plant ), 96 NLRB 522 , in connection with the argument that it had no reasonable
grounds on which to base a contrary belief.
Upon the entire record , and in the light of the considerations herein set forth, it is
my opinion that the complaint in this case ought to be dismissed , and I shall so
recommend.
Upon the foregoing findings of fact , and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. The Respondent Company , the Anaconda Copper Mining Company, is an em-
ployer within the meaning of Section 2 (2) of the Act , engaged in commerce and busi-
ness activities which affect commerce , within the meaning of Section 2 (6) and (7)
of the Act, as amended.
2. The Respondent Union, Lumber and Sawmill Workers Union, No. 3038, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act, as amended.
3. The Respondent Company has not engaged in unfair labor practices as alleged
in the complaint , within the meaning of Section 8 (a) (1) and ( 3) of the Act, as
amended.
4. The Respondent Union has not engaged in unfair labor practices as alleged in
the complaint , within the meaning of Section 8 (b) (1) (A ) and (2 ) of the Act,
as amended.
[Recommendations omitted from publication.]