Baker & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1946

68 N.L.R.B. 830 (N.L.R.B. 1946)

In the Matter of BAKER & COMPANY, INC. and INTERNATIONAL ASSO-
CIATION OF MACHINISTS, A. F. L.
Case No. 2-C-5771.-Decided June 21, 1946
DECISION
AND
ORDER
On January 28, 1946, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, on February 20, 1946, the respondent filed exceptions
to the Intermediate Report, and a supporting brief. On June 3, 1946,
the Board heard oral argument in Washington, D. C. The Board has
reviewed the rulings made by the Trial Examiner at the hearing and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.
The Board has considered the Intermediate Report, the respondent's
exceptions and brief, the oral argument, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the additions and modifications hereinafter
noted:
1. The Trial Examiner found, and we agree, that the four employees
involved herein were not members of the C. I. O. in good standing on
July 6, 1944, when the escape period under the maintenance-of-mem-
bership contract, referred to in the Intermediate Report, expired, and
that the respondent was not protected by the contract in discharging them
inasmuch as the contract did not require their discharge. In addition,
we are of the opinion that three of the four employees, Hedge, Feldt-
mann, and Procaccini, had, on that date, not only lost their good stand-
ing, but had resigned their membership in the C. I. O. All three of these
employees had ceased paying dues to the C. I. O. at least 5 months prior
to July 6, 1944, and each of them had made statements to various C. I. O.
officials before that date, indicating that they had resigned from mem-
bership. We do not believe, moreover, that the subsequent action of
68 N. L R. B., No. 110.
830
BAKER & COMPANY, INC. 831
Feldtmann in serving on the C. I. O.'s informal policy committee, and
the action of Feldtmann and Hedge in attending C. I. O. meetings,
amounted to a rejoining of the C. I. O. under the circumstances in
either case.
2. We are not, in the instant case, presented with a "dual-unionism"
situation, nor with the accompanying question of the duty of an em-
ployer to inquire into the reason for requested discharges. We are not
faced here with the question of whether an employer need delve into the
internal affairs of a union in the usual sense. Rather, we have before
us the question of the duty of the respondent to inquire as to the identity
of employees covered by the maintenance-of-membership provision in
its contract with the C. I. O. We are of the opinion that the respondent
had such a duty. When it failed to perform that duty and discharged
the four employees involved herein, it acted at its peril and violated
Section 8 (3) of the Act when the true facts were, as herein found,
that the contract did not require their discharge.
The maintenance-of-membership contract incorporated the terms of
the Regional War Labor Board Interim Directive Order of June 21,
1944, more fully set forth in the Intermediate Report, which provided
in part, that the C. I. O. immediately file a list of its members subject
to the maintenance-of-membership provision. No such list was furnished,
nor did the respondent request that the C. I. O. file such a list. The
Interim Directive Order, incorporated into the contract, also provided a
method by which disputes concerning the application of the maintenance-
of-membership provision could be arbitrated, but the respondent made no
attempt to make use of the method provided. Employees Hedge, Feldt-
mann, and Procaccini informed the respondent, when threatened with
discharge, that they were not members of the C. I. O. Their statements
to the respondent sufficiently warned it that these employees considered
themselves not to be covered by the maintenance-of-membership pro-
vision, and that it should take those steps provided by the contract for
determining who was covered by that provision. Employee Jaconski, who
was not in good standing on July 6, 1944, or thereafter, by reason of
dues arrearages antedating July 6, 1944, when threatened with discharge,
informed the respondent that her dues had been checked off by the
respondent from September through the month of her discharge, pur-
suant to written authorization by her. The respondent was thereby put
on notice of the possibilities that Jaconski was then a paid-up member
of the C. I. O. or that she had not been a member in good standing
on July 6, 1944. In either event, her discharge could not have been justi-
fied under the terms of the contract.
We are of the view that the respondent was not protected by the
contract in discharging Jaconski for the reasons indicated hereinafter.
She was not a member of the C. I. O. in good standing on July 6, 1944.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although she thereafter executed a card authorizing the check-off of
membership dues, from that time on, she maintained her membership
in the C. I. O. in accordance with the maintenance-of-membership pro-
vision of the contract. Had the respondent performed its duty to inquire
as to the contract's coverage or had it resorted to the arbitration pro-
visions of the contract to determine coverage, it might have avoided dis-
charging Jaconski and the other three employees.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Baker & Company, Inc., New-
ark, New Jersey, and its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Encouraging membership in Precious Metal Workers Union, Lo-
cal 668 of the International Union of Mine, Mill, and Smelter Workers,
affiliated with the C. I. 0., or any other labor organization of its em-
ployees, by discriminating against such employees in any manner in
regard to their hire, tenure of employment, or any term or condition of
employment, for failure to maintain membership in good standing in
such organization, unless such employee or employees shall be obligated
so to do under any contract entered into by the respondent pursuant to
and in conformity with the Regional War Labor Board Interim Direc-
tive Order of June 21, 1944, or unless such employee shall be obligated
hereafter so to maintain membership in good standing in a labor organi-
zation under the provisions of a valid contract then existing between the
respondent and such labor organization. '
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Clarence Hedge, Fred Feldtmann, Ellen Procaccini,
and Josephine Jaconski immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their seniority
and other rights and privileges, including such vacation accruals and
over-all automatic pay adjustments as would have accrued to them absent
the respondent's discrimination against them;
(b) Make whole Clarence Hedge, Fred Feldtmann, Ellen Procaccini,
and Josephine Jaconski for any loss that they may have suffered by
reason of the respondent's discrimination in regard to their tenure of
employment, by payment to each of them a sum of money equal to the
amount which each normally would have earned as wages from the date
of the discriminatory discharge to the date of the respondent's offer
of reinstatement, less the net earnings of each during said period;
(c) Post at its Newark and East Newark, New Jersey, plants, copies
BAKER & COMPANY, INC. 833
of the notice attached hereto, marked "Appendix A." Copies of said
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the respondent's representative, be
posted by the respondent immediately upon receipt thereof, and main-
tained by it for 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 to insure that
said notices are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the respon-
dent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent discouraged membership in International Association of
Machinists, A. F. L., within the meaning of Section 8 (3) of the Act,
be, and it hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
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, we hereby notify our employees that:
We will not encourage membership in Precious Metal Workers
Union, Local 668 of the International Union of Mine, Mill, and
Smelter Workers, affiliated with the C. I. 0., or any other labor
organization of our employees, by discriminating against such em-
ployees in any manner in regard to their hire or tenure of employ-
ment, or any term or condition of employment, for failure to main-
tain membership in good standing in such organization, unless such
employee or employees shall be obligated so to do under any contract
entered into'by Baker & Company, Inc. pursuant to and in con-
formity with the Regional War Labor Board Interim Directive
Order of June 21, 1944, or unless such employee shall be obligated
hereafter so to maintain membership in good standing in a labor
organization under the provisions of a valid contract then existing
between Baker & Company, Inc., and such labor organization.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority and other rights and privileges
834 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
enjoyed, and make them whole for any loss of pay suffered as a
result of the discrimination:
CLARENCE HEDGE ELLEN PROCACCINI
FRED FELDTMANN JOSEPHINE ,JACONSKI
BAKER & COMPANY, INC.
Employer.
Dated ........................
By ........................
(Representative ) (Title)
NOTE -Any of the above-named employees presently serving in the
Armed Forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after dis-
charge from the Armed Forces.
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
John J Cuneo, Esq, of New York City, for the Board.
Samuel L Rothbard, Esq, 1060 Broad St., Newark, N. J, for the CIO.
Samuel R Isard, Organizer, 972 Broad St, Newark, N. J, and Wilfred McCleane,
Business Representative for District 40, 700 South 14th St., Newark, N J, for
the A. F. L.
Karl Huber, Esq, 113 Astor St., Newark , N. J., for the respondent
STATEMENT OF THE CASE
On a second amended charge duly filed November 20, 1945, by International
Association of Machinists , A. F. L., herein referred to as A F. L., the National
Labor Relations Board, herein called the Board, on November 27, 1945, by the
Regional Director for the Second Region (New York City, New York), issued its
complaint against Baker & Company, Inc., herein called Respondent , alleging that
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) and (3) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint , together with copies of the
second amended charge and a notice of hearing, were duly served upon Respondent,
the A. F. L., and Precious Metal Workers Union, Local 668, of the International
Union of Mine, Mill and Smelter Workers, affiliated with Congress of Industrial
Organizations , herein called the C. I. O.
Concerning unfair labor practices , the complaint alleges that on or about
February 13, 1945, Respondent discharged Clarence Hedge, Fred Feldtmann,
Ellen Procaccini and Josephine Jaconski , employed at Respondent 's East Newark
plant, and that since such discharges Respondent has failed and refused to, and
continues to refuse to reinstate the said employees to their former or substantially
equivalent positions or employment for the reason that they failed or refused
to join or remain members of the C. I. 0., and that by such acts Respondent has
discriminated and is discriminating in regard to the hire or tenure or terms or
conditions of employment of the employees above named , thereby encouraging
membership in the C . I. O. and discouraging membership in the A . F. of L. and
BARER & COMPANY, INC. 835
engaging in an unfair labor practice within the meaning of Section 8 (1) and (3)
of the National Labor Relations Act.
In its answer duly filed, Respondent admits the allegations of the complaint
concerning its corporate existence and the nature, character and extent of the
business done by it. It admits that it discharged the employees named on or about
the date named but alleges that it did so pursuant to the provisions of an agree-
ment duly entered into between Respondent and the C. I. O , and that in discharging
the employees named, it did not discriminate and is not discriminating in regard
to their hire or tenure of employment or terms or conditions of employment or
that it has encouraged or is encouraging membership in the C. 1. O. or any other
union or has discouraged or is discouraging membership in the A. F. of L. or
any other union.
Pursuant to a notice of hearing issued by the Regional Director for the Second
Region and duly served upon the parties, a hearing on the complaint was held
at Newark, New Jersey, on January 14 and 15, 1946, before the undersigned,
R N. Denham, the Trial Examiner duly designated by the Chief Trial Examiner.
The Board, the C I O , and Respondent appeared and were represented by
counsel. The A F. L. was represented by duly designated official representatives.
The C. I. 0 in entering its appearance filed concurrently therewith a motion for
leave to intervene herein on the ground that the issues concern a contract to
which it is a party. The motion for leave to intervene was granted . Thereafter
all parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to present evidence pertinent
to the issues At the close of the hearing an informal discussion of the issues
was held on the record All representatives of the interested parties waived the
right to file briefs with the Trial Examiner.
On the basis of the foregoing and on the entire record, after having heard and
observed the witnesses and considered all the evidence offered and received, the
undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Baker & Company, Inc., is and since December 22, 1903, has been a corporation
duly organized under and existing by virtue of the laws of the State of New
Jersey, maintaining its principal office and place of business at 113 Astor Street
in the City of Newark, together with two plants in the City of Newark and one
in the City of East Newark, all in Essex County, New Jersey.
Respondent engages in the business of refining, manufacturing, selling, and
distributing precious metals and instruments for use by various arts and industries
During the year ending October 30, 1945, Respondent purchased, transferred and
had delivered to its plants in Newark and East Newark, raw materials consisting
chiefly of precious metal valued in excess of $1,000,000, of which about 75 percent
was transported in interstate commerce to the State of New Jersey. During the
same period, it refined and manufactured at its plants in Essex County, New
Jersey, finished products valued in excess of $1,000,000, of which approximately
75 percent was transported in interstate commerce to other States of the
United States.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, affiliated with the American Federation
of Labor, and Precious Metal Workers Union, Local 668 of the International
696966-46-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union of Mine , Mill and Smelter Workers, affiliated with the Congress of Indus-
trial Organizations , are labor organizations admitting to membership employees
of Respondent at its plants in Essex County, New Jersey.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues and their setting
The only issue involved is whether the four discharged persons were, in fact,
subject to discharge under a maintenance of membership provision in the contract
between the C. I. O. and Respondent .1 In the main, there is little dispute as to
the facts.
For more than 6 years prior to September 1943, Respondent's employees had been
represented by an independent union for collective bargaining purposes. On or
about September 3, 1943, that organization disbanded and most of its members
concurrently joined C. I. O. A subsequent card check reflected a majority repre-
sentation by C. I. 0., as a result of which, negotiations for a contract were soon
started. These negotiations resulted in an impasse on many major questions, one
of which was the closed shop and check-off issue, resulting in the controversy being
referred to the War Labor Board on December 16, 1943. The tripartite panel to
whom the case was assigned, held formal hearings and, in due course issued its
recommendations, from which both parties appealed.
On June 21, 1944, the Regional War Labor Board handed down its "Interim
Directive Order," making disposition of the various issues, among which were
the following:
8. Union Security
(a) Maintenance of membership.-The Union is awarded the standard
maintenance of membership provision as adopted by the National War Labor
Board on November 27, 1943, a copy of which, adapted to this case, is
annexed hereto and made part of this Interim Directive Order.
(b) Check off.-The Company shall deduct from their wages and turn over
to the proper officers of the Union, the initiation fees and Union dues of all
such members of the Union as individually and voluntarily certify in writing
that they authorize such deductions. Such authorization shall apply for the
duration of the contract.
The standard maintenance of membership provision referred in the directive
and attached to and made a part thereof, reads as follows :
MAINTENANCE OF MEMBERSHIP PROVISION
(Adopted by National War Labor Board, Nov. 27, 1943)
(a) All employees who, on July 6, 1944, fifteen days after date of Directive
Order, are members of the Union in good standing in accordance with its
constitution and by-laws, and all employees who become members after that
date, shall, as a condition of employment, maintain their membership in the
Union in good standing for the duration of the collective agreement in which
this provision is incorporated, or until further order of the Board
1 There is no evidence of any antagonism by respondent toward union activities among its
employees It is conceded the discharged employees were competent and satisfactory employees
whose services respondent desired to retain, and, aside from the fact, incidentally touched upon
during the hearing, that in January 1945, a month preceding their discharge , the four em-
ployees here involved had joined the A. F L., there is no suggestion that dual unionism
entered into the discharges.
BAKER & COMPANY, INC. 837
The Union shall, immediately after the aforesaid date, furnish the Regional
War Labor Board with a notarized list of its members in good standing as of
that date.
The Union, its officers and members shall not intimidate or coerce employees
into joining the Union or continuing their membership therein.
(b) If a dispute arises as to whether an employee (1) was a member of
the Union on the date specified above or (2) was intimidated or coerced
during the fifteeen-day "escape period" into joining the Union or continuing
his membership therein, such dispute may be submitted for determination by
an arbitrator to be appointed by the Regional War Labor Board. The decision
of the arbitrator shall be final and binding upon the parties.
(c) If a dispute arises as to whether an employee (1) has failed to main-
tain his membership in the Union in good standing after the aforesaid date, or
(2) was intimidated or coerced into joining the Union after the aforesaid
date, such dispute may be submitted for determination by an arbitrator to be
selected in the manner provided by the contract of the parties, or if no such
provision exists, to be selected by special agreement. In the absence of such a
contract provision or special agreement, the arbitrator will be selected by the
Regional War Labor Board, on due application. The decision of the arbitrator
shall be final and binding upon the parties.
Any party desiring to post or otherwise publish an official explanation by
the National War Labor Board of the foregoing maintenance of membership
provision may use the attached form of notice. A statement of the procedure
to be followed in administering the maintenance of membership provision, in
the absence of some other procedure agreed to by the parties, is also attached.
In compliance with the above, Respondent duly posted, on or about June 27,
1944, a notice concerning the maintenance of membership requirements, and
attached thereto, the statement of procedure referred to in the last paragraph of
the foregoing. This notice and statement or explanation reads as follows :
BAKER & CO., INC.,
NEWARK, N J, June 27, 1944.
To Mr.
Subject ............... ...
NOTICE
The National War Labor Board has issued a directive order dated
June 21, 1944 providing, "among other things, for maintenance of member-
ship in the Union and voluntary check-off.
MAINTENANCE OF MEMBERSHIP IN THE UNION
The order provides that any employee who is a member of the Union
on July 6, 1944, or who thereafter joins the Union, must maintain his
Union membership as a condition of employment for the duration of the
proposed contract between the Company and the International Union of
Mine, Mill and Smelter Workers, Local 668, C. I. 0.
A copy of an explanatory statement issued by the War Labor Board as
part of the directive order is attached hereto. Read it carefully as it will
affect your status for the duration of the proposed contract.
CHECK-OFF
The order provides that the Company shall deduct from your wages and
turn over to the Union the initiation fees and Union dues of all Union
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members who individually and voluntarily certify in writing that they
authorized such deduction.
Any such written authority applied for the duration of the proposed
contract.
BAKER & Co., INC.,
By (s) ALVIN WILLIAM
EXPLANATORY STATEMENT OF MAINTENANCE OF MEMBERSHIP PROVISION
APPROVED BY NATIONAL WAR LABOR BOARD, NOVEMBER 26, 1943
The National War Labor Board, Region 11, has directed that a Mainte-
nance of Membership clause be included in the terms and conditions
governing the relationship between the parties.
Briefly, the Maintenance of Membership clause provides as follows:
1. If you are a member of the Union in good standing, you will be re-
quired as a condition of employment to maintain your good standing in
the Union for the duration of the contract, unless, before July 6, 1944,
you notify the Union in writing that you desire to withdraw from mem-
bership. Your Union dues will also be deducted from your pay each month,
unless you withdraw membership before
2. If you join or reaffiliate with the Union after July 6, 1944, you will be
required as a condition of employment to maintain your good standing in
the Union for the duration of the contract, and your union dues will be
deducted from your pay each month.
3 If you are not now a member in good standing, this order does not
require that you join the Union, but you are free to make application
to join.
4. If you have any question as to whether you are now a member of the
Union, or wish to be informed as to whether the Union regards you as a
member, inquire at the Union, office or of the Departmental Steward or
other appropriate Union official.
(This notice or copies thereof may be posted or otherwise published by
the Company or the Union or both jointly.)
Following the directive of June 21, 1944, there were some further incidental
proceedings before the War Labor Board and also further negotiations between
Respondent and the Union. These eventually resulted in a contract, on December
21, 1944, which provided that it should "take effect on September 3, 1944, be
retroactive to September 3, 1943, except as otherwise indicated, and shall continue
until September 3, 1945, at 12:00 o'clock noon " It also contained an automatic
renewal provision.
Concerning maintenance of membership and check-off, the contract, which
followed the War Labor Board directive by 6 months and was executed 51 months
after the expiration of the escape period, in Article I, Section 2, provides:
2. In accordance with a R. W. L. B. Directive Order2 all employees who
now are or who hereafter become members of the Union during the period
of this agreement shall remain members of the Union in good standing as a
condition of employment for the duration of this agreement; and the Company
shall deduct from the wages and turn over to the proper officers of the Union
the initiation fees and Union dues of all such members of the Union who
individually and voluntarily certify in writing to the Company that they author-
' The Interim Directive Order above quoted is the only one dealing with this subject.
BAKER & COMPANY, INC. 839
ize such deduction, and any such authorization once filed with the Company
shall be irrevocable during the term of this agreement.
Copies of the contract were posted on the bulletin boards in March, 1945, about
a month after the discharges here under consideration.
The four employees here involved joined the C. I. 0. in September 1943, at
which time each of them was given a copy of the 1942 constitution of the Inter-
national Union of Mine, Mill and Smelter Workers, with Local Union By-Laws
Appended. Although there were amendments to the Constitution and the draft of
Local Union By-Laws, made at the 1943 and 1944 annual conventions, the four
persons here involved testified and it was not controverted, that the only copy
of the constitution which they had ever seen was a copy of the 1942 constitution
and by-laws heretofore referred to.
Each of the constitutions of 1942, 1943, and 1944 of the International Union
contains the following section under the Article "Duties and Privileges of
Members"
Each member, to be in good standing in his local Union and the International
Union, shall pay to the financial secretary of his local Union such per capita
tax and assessments as are required by or levied in accordance with this
constitution, and such dues, assessments or fines as may be levied by the local
Union.
Thereafter the constitution frequently refers to the rights of members "in good
standing" and also provides for the deprivation of rights in numerous places
throughout the Constitution, of members and officers who shall be in arrears for
2 months or more in the payment of their dues. While it is thus indicated that any
arrearages in dues payments may impair a member's good standing, these latter
provisions definitely place a member with arrears of 2 or more months, in bad
standing.
As heretofore noted, the constitution of the International Union has appended
to it certain standard By-Laws to govern the locals. In connection with these, the
Constitution recites:
These by-laws may be amended by local unions to suit their local require-
ments as a local union sees fit to amend them. All amendments, however, must
be in compliance with the International constitution.
These by-laws, as they are, shall govern local union until such time as proper
amendments are made to them by local unions.
The Union By-Laws appended to the 1942 Constitution contains the following
as Article VIII, Sections 2 and 3:
2 Dues for each member shall be due on the first day of each month and
past due on the first day of the following month.
3. Any member being 2 or more months in arrears with his dues shall not
be allowed a voice or vote in the affairs of the local, and shall be automatically
dropped as a member of the local and be reinstated only upon payment of
the reinstatement fee and such other penalties as the local may impose.
The Constitutions and By-Laws of 1943 and 1944, copies of which never came
to the hands of any of the four persons here involved, show Section 3 to have
been amended to read as follows :
Any member being 2 or more months in arrears shall not be allowed a
voice or vote in the affairs of the local union.
but make no changes in the other provisions above referred to.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is unquestioned that all employees within the appropriate unit represented
by the C. I. O. were not members of the C. I. 0., either at the time it became the
bargaining representative in September 1943, or at any subsequent time. Not-
withstanding the directive of the Regional War Labor Board of June 21, 1944
required the Union to file with the Regional Office of the War Labor Board a list
showing its membership in good standing among the employees of Respondent
as of the close of the escape period, July 6, 1944, no such list was ever filed, nor
did the C. I. O. ever supply Respondent with any list of a similar character. On
the other hand Respondent up to the time of the discharges herein considered,
had never requested such a list. Ross Bayes, assistant to the President of Re-
spondent, stated, while testifying, that Respondent at no time had any knowledge
as to which of the employees were members of the Union; that it had no informa-
tion whether any of them had taken advantage of the provisions of the escape
clause ; nor any knowledge concerning those who, between September 1, 1943
and February 13, 1945, were or were not members in good standing of the
C. I. O. Respondent accepted the word of the C. I. O. without question on all
such matters and did not attempt to require the C. I 0 to supply it with any
information concerning its membership or their standing. Bayes stated that
Respondent felt it had no right to inquire into this phase of the C. I 0 's business
and did not want to initiate a controversy by raising the question.
Against this background, the question which here presents itself is whether
employees who became members of the C. I. O. in September 1943 but who were
more than 2 months in arrears on dues payments by the expiration of the escape
period on July 6, 1944, were subject to the maintenance of membership provisions
of the contract of December 21, 1944, and were thereafter required to maintain
their membership in good standing by the regular monthly payment of dues, plus
making up all delinquencies and assessments theretofore accrued 3
The C. I. O. points to the language of the contract above quoted which, it will
be noted departs from the language of the Regional War Labor Board directive
that, whereas the language of the directive and its explanatory attachments reads:
All employees who, on July 6, 1944, fifteen days after date of Directive
Order, are members of the Union in good standing [italics supplied] . in ac-
cordance with its constitution and by-laws, and all employees who become
members after that date shall as a condition of employment maintain their
membership in the Union in good standing etc
the contract reads:
In accordance with a RWLB Directive Order all employees who now are or
who after become members of the Union [italics supplied] during the period
of this agreement shall remain members of the Union in good standing as
a condition of employment etc.
On the basis of this difference in language the C. I. O. contends that the re-
quirement of maintenance of membership in good standing and the privileges of
the escape clause have been changed by mutual agreement of the C. I. O. and
Respondent, and apply not only to such members of the Union as were in good
standing on July 6, 1944 but to all persons who were then members of the Union
by virtue of having once accepted membership, regardless of delinquencies, and
who had not, prior to July 6, 1944, either terminated their membership by formal
3 In In re Phelps Dodge Copper Products Corporation, Habershaw Cable and Iron Division, and
William Scullion, 63 N. L. R. B. 686, this question was presented : It was there found that lack of
good standing because of non-payment of dues, at the expiration of the escape period exempted
the employee from the maintenance of membership requirement of the contract.
BARER & COMPANY, INC. 841
resignation or had it terminated by some affirmative act of the Union in dropping
them from its rolls. I can find no merit in this contention, notwithstanding the
contract was submitted to the War Labor Board and a resolution of approval of
such contract passed by that Board.
The contract was negotiated and finally executed 51/2 months after the escape
period had expired. All the notices, directives of the War Labor Board and
explanations which were brought home to the employees in June and July 1944
pertaining to the maintenance of membership provisions and its effect and applica-
tion , limited the applicability of the maintenance of membership requirements to
those who were members of the Union "in good standing" on July 6, 1944, and
who prior to that date had failed to terminate their membership in the Union
under the provisions of the escape clause.
The contract of December 21 contains no escape provision but affirmatively
recites that the maintenance of membership section is included in the contract
pursuant to the directive of the Regional War Labor Board, which is limited as
above noted On this point of membership "in good standing," the contract is
ambiguous and unclear, but it must be read and construed in the light of the cleat
meaning of the War Labor Board directive, and in such manner as will not
prejudice irretrievable rights acquired under that directive, nor impose obliga-
tions clearly not contemplated by it. In short, Section 2 of Article I of the con-
tract must be construed as if it read:
In accordance with an RWLB directive order, all employees who on July 6,
1944 were members of the Union in good standing or who thereafter became
or shall become members of the Union during the period of this agreement, etc
Counsel for C. I. O. contends that in this union a member remains a member
in good standing regardless of the non-payment of his dues until such time as, by
affirmative action of the Union , he has been expelled or formally dropped from
the rolls .4 If such is true , an employee could not lose his good standing and
with it, his right to continued employment as was claimed in this case by both
C. I. O. and Respondent, except by affirmative action which was not taken here
The International Representative of the C. I. O. who services the local union
here involved, testified that it is customary in the formative stages of a local,
up to the time it obtains a firm hold on its membership and on the situation in
general , to disregard the dues payment requirements and to deal leniently with all
the employees who have signed application cards or membership cards, and not to
enforce the dues payment requirements until the union is firmly established
James Davidson, who was president of the local union when the discharges here
involved took place but who no longer is an employee of Respondent, testified that
during 1944, all persons who had become members of the Union were allowed
to participate in its affairs regardless of whether they were delinquent in the
payment of their dues or otherwise, and regardless of the provisions of the
Constitution and By-Laws. The local passed no new or different By-Laws and it is
conceded that the International Constitution contains no provision authorizing any
local union to set aside , disregard , or pass any By-Laws in contravention of the
provisions of the International Constitution. Since that document, both in the 1942,
1943 and 1944 editions, provides that to be in good standing one must be current
in the payment of dues with prescribed penalties for those who fall into arrears
for 2 or more months, the most liberal construction of which the International
Constitution is susceptible , is that a member loses his good standing when his
Such a contention finds no support in the Constitution and By-Laws that admittedty
govern this organization.
842 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
dues become 2 months in arrears. With a slight variation as to one of the four
employees here involved , all of them were 2 months or more in arrears in the
payment of dues on July 6, 1944 and at no time corrected such arrearage up to
the date of their discharges on February 13 ,1945.
B. The individuals involved and their membership status in the C. I. 0
Davidson testified, and all the circumstances confirm, that up to the time he
became president of Local 668 in January, 1945, the provisions of the By-Laws
pertaining to dues payments had not been observed and that all persons who had
theretofore joined the C. I 0. were permitted to participate in its activities on
an equal basis, regardless of the state of their dues indebtedness. He further stated,
without being contradicted, that he found about 60 persons to be in arrears and that
he, with his Executive Committee, determined to engage on a campaign to promote
the payment of such arrearages He accordingly selected five or six persons repre-
senting what he described as a "cross section" of the various classes of delinquencies
and determined, by invoking the maintenance of membership as to that group, to
impress the remainder of the delinquents with the necessity for bringing their
dues to a current basis.
On February 2, 1945, Davidson forwarded to Respondent, a notice to be posted
in all departments reading as follows :
IMPORTANT NOTICE
Art. I Sec. II
"In accordince with a R. W. L. B. Directive Order all employees who now
are or who hereafter become members of the Union during the period of this
agreement shall remain members of the Union in good standing as a condition
of employment for the duration of this agreement; and the Company shall
deduct from the wages and turn over to the proper officers of the Union the
initiation fees and Union dues of all such members of the Union who in-
dividually and voluntarily certify in writing to the Company that they authorize
such deductions, and any such authorization once filed with the Company shall
be irrevocable during the term of the agreement."
Notice is hereby given that this article is to be enforced after Feb. 2nd.
Members shall by that time have made payment or arrangements to pay
deliquent dues by above date.
EXECUTIVE COMMITTEE
S/ JAMES M. DAVIDSON, Pres
On February 5, and without further notice to any of those involved, the C. I. 0.
wrote Respondent as follows:
FEBRUARY 5, 1945.
BAKER & COMPANY, INC.
DEAR SIR: In accordance with Article I Section 2 of the agreement entered
into on the 21st of December 1944, we hereby submit six names of people who
are no longer members in good standing of Local 668 I. U. M. M. S. W., C. I. 0.
JOSEPHINE JACONSKY FRED FELDTMAN
ELLEN PROCACCINI THOMAS MILITANO
ANGELA FANTOCONE CLARENCE HEDGES
BAKER & COMPANY, INC. 843
We request that immediate action be taken with these people and would like
to know the position of management on or before Friday, February 9th.
Respectfully submitted
EXECUTIVE COMMITTEE, LOCAL 668 I. U. M. M. S. W, C I. O.
Per JAMES DAVIDSON, PreS 5
These factors reduce the question of the legitimacy of the discharges to a deter-
mination of, (1) whether the discharged persons were members in good standing
on July 6, 1944, (2) whether the discharged persons were subject to the provisions
of the maintenance of membership clause and therefore eligible for discharge at
the request of the union at any time subsequent to July 6, 1944; (3) whether any
of them who may not have been in "good standing," on July 6, 1944, ever acquired
membership in good standing subsequent to that date and thereafter failed to
maintain it; and (4) whether Respondent was protected in effecting the discharges
by relying upon the demand of the C I. 0 for the discharges and the representa-
tion of the C I 0 that the basis of this demand was delinquency in the payment of
dues.
On receipt of the letter of February 5, Respondent inquired of Davidson the
reason for the loss of "good standing" by the employees named and was advised
that in each instance it was because of failure to maintain dues payments After
arranging with C I 0 for an extension of time in which to act, Respondent,
through the foreman of Special Products Division in which those persons were
employed and Ross Bayes, got in touch with each of them, told them that they
would be required to pay tip their back dues to the C I. O. in order to avoid dis-
charge and, in each instance, offered to lend them the necessary money if they
needed it to make such payment.
Although A F. L. was then engaged in an organizational campaign in the plant
and each of the persons here involved had joined A F. L in January 1945, there
is no evidence either that Respondent knew of this, or that the action of C. I. O.
was based on the dual unionism of any of the parties. The complaint alleges that
by the acts complained of, Respondent has discouraged membership in A. F. L.
The record fails to support this allegation.
Fred Feldtmann was an inspector in the Special Products Division. He joined the
C. I. O. in September 1943, paid his dues for September and October 1943 and then
became ill, remaining incapacitated for about 14 weeks. He returned to his work
on or about March 20, 1944. In April 1944 he discussed his status in the C. I O.
with Ida Hritz, the vice president of Local 668. There is some controversy between
Feldtmann and Hritz as to the exact conversation which took place although both
agreed that it had to do with his delinquency in dues. According to Feldtmann,
Hritz told him that during his absence he had been dropped and that it would be
cheaper for him to come into the union as a new member rather than to attempt
to reinstate and pay up back dues that would be involved, whereupon Feldtmann
told her that since he had been dropped he would let it go, and thereafter paid no
further attention to the union and paid no dues into it According to his testimony,
he was never thereafter approached by anyone with a request that he obtain re-
instatement or pay up his dues and become a member in good standing Hritz,
on the other hand, testified that in the discussion she referred him to his shop
steward and suggested that because of his absence on account of illness he should
be entitled to "unemployment stamps" to cover the period of hi, illness, but that
he would have to arrange this with his shop steward. Beyond that, she stated,
5It later developed that Angela Fantocone had already left respondent's employ. Militano
was a foreman in Special Products Division and is not involved in this case.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she knows nothing about the situation.6 Feldtmann did not pay any dues after
October 1943 and on January 10, 1945, became a member of the International Asso-
ciation of Machinists, A. F. L.
On July 1, 1944, Feldtmann returned from his vacation and had his attention
called to the notice concerning the maintenance of membership provision of the
War Labor Board directive which had been posted. According to his testimony,
he paid no attention to it because he was not interested, did not consider himself
a member of the union and felt that it did not apply to him. On this, Feldtmann's
testimony is fully credited.
On February 12, 1945, Feldtmann was approached by Foreman Stone who asked
him to see Davidson and pay up his delinquent dues with the C. I. 0., since the
union had demanded his discharge if he failed to do so. He told Stone that he was
not a member of the C. I. 0.; that he had been dropped long since; and that he
didn't like Davidson in any event and would not talk with him. On February 13
Feldtmann was called to Stone's office and given his notice of discharge which
stated that the reason for the discharge was his failure to maintain his membership
in the C I. O. and that such failure necessitated discharge under the provisions
of the maintenance of membership provision in the contract.
The C. I. O. attempted to establish what they call Policy Committees in the
various departments, to act as liaison between the employees in such departments
and the Executive Committee and the Negotiating Committee. These Policy Com-
mittees functioned informally. They were designated by the union members in the
departments, kept no records, made no reports to the Union, as such, and filled
vacancies through appointments by the remaining members. By late 1944, the
Policy Committee for Special Products Division had dwindled down to a very few
and in December 1944 the remaining members designated a group of four or five
of the employees in that department to serve on the committee. Feldtmann was one
of those so designated and served for a period from about December 25, 1944,
until his discharge. The committee activities were slight and its duties not clearly
defined in any testimony, although it was clearly a branch of recognized union
activity.
Feldtmann did not successfully reconcile this union activity with his position
that he had no further interest in the Union, beyond the fact that the work of the
committee was confined to his department, that had been pressed into service and
was willing to do what he could for his fellow workers.
This activity was in line with the testimony of Davidson that at that time, the
local made no clear distinction between the members who were delinquent in their
dues and those who were in good standing but utilized the services of all who
had ever been members and permitted all of them to participate in the union
activites. Notwithstanding this, Feldtmann made no attempt to pay dues or restore
himself to financial good standing with the organization.
From the foregoing it will be noted that when the escape period expired on
July 6, 1944, Feldtmann had been in arrears for 8 months. Under all the pro-
visions of the Constitution, regardless of the laxity of the Local, he could not
claim, as a matter of right, to be a member in good standing. The subsequent
acceptance of his services by the C. I. O. cannot be interpreted as a reinstatement
into good standing. The prompt payment of monthly dues is made a condition
precedent to good standing in the C. I. O. At no time after the expiration of the
escape period did Feldtmann make any effort to restore himself to good standing
" In view of the disposition hereinafter made of the Feldtmann case , it is not necessary to
resolve whatever conflict there may be in this testimony.
BAKER & COMPANY, INC. 845
by the payment of either past dues or current dues or to identify himself with the
Union in any way beyond his membership on the Policy Committee above out-
lined It is found that he was not a member in good standing on July 6, 1944, and
did not thereafter acquire good standing in C I. 0 to bring him under the
maintenance of membership requirements of the WLB directive or the contract
of December 21, 1944.
Clarence Hedge was a machine operator in the Special Products Division. He
joined the C I O. in September 1943 and paid his dues through February 1944.
No dues payments of any character were made by him subsequent to that date.
In March 1944, Hedge, according to his testimony, became "disgusted" with
the manner in which the affairs of the union were being conducted and handed
his dues book back to Filiger, the shop steward for his department, telling him
at the same time that he was through with the Union and would not pay any more
dues Filiger asked him why he was giving him the book, to which Hedge replied
that, because he was the shop steward, he was giving him the book to turn in for
him. Filiger took the book, placed it in a pigeon hole in his desk, and thereafter
kept it. It was not until after Hedge had received his notice of discharge that
Filiger came to him and returned the dues book which had been surrendered to
him almost a year previous? Hedge testified that he considered handing in his
dues book to the shop steward with the statement that he was finished with the
Union and did not intend to pay any more dues was tantamount to a resignation
from the union, and that thereafter he paid no more attention to the union activities
with the exception of attendance at one meeting he thought was in April, but might
have been later, which was apparently an "open" meeting to discuss the prospective
features of the contract the C. I. O. was then attempting to negotiate with the
Company. At no time after turning in his book to Filiger in March 1944 did he
receive either advice from the C. I. O. indicating that his resignation had been
accepted or that he had been dropped from the rolls. In January 1945, he joined
the International Association of Machinists, A. F. L
On February 12, 1945, Hedge was sent for by Stone, his foreman, and told him
that he was in arrears in his dues to the C. I. O. and would be discharged unless
he brought them up to date He then told Stone that he was not a member of the
C. I. O. and had no intention of paying dues to it. Stone offered to lend Hedge the
money necessary to make the dues payment, but Hedge refused, again stating that
he was not a member and would not pay anything. The next day, Hedge was
handed a notice of discharge. As in the case of Feldtmann and all the others
involved herein, the discharge notice gave the reason for his discharge, as failure
to maintain his membership under the maintenance of membership provision of the
contract with the C. I. O. No previous demand had been made on Hedge for
delinquent dues.
It is apparent from the foregoing that on July 6, 1944, Hedge was not in good
standing with the C. I. O. and therefore not subject to the requirement that he
maintain membership in it in good standing. Since he refused to pay any dues after
turning in his dues book in March 1944 up to the time of his discharge, it is
similarly obvious that he did not acquire "good standing" in the C. I. O. subsequent
to July 6, 1944.
Ellen Procaccini, a utility operator in the Special Products Division has been
in the employ of the Respondent since March 1941 She joined the C. I. O. in
September 1943 and paid her dues through January 1944. During this time she
served as shop steward, collected dues, distributed dues stamps to the members,
T This testimony was not controverted and is fully credited. Filiger did not testify.
846 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
and supervised placing them appropriately in the dues books of the members. She
last served as shop steward in December 1943 and after January 1944 paid no
dues at any time nor did she sign any check-off authorization during the course
of her employment.
While the maintenance of membership notice was on the bulletin board and the
escape period was in effect between June 21, 1944, and July 6, 1944, Procaccini
had her attention called to the notice by some of the maintenance men in the shop.
She examined the notice but was unable to comprehend its exact meaning and asked
Hritz, the vice-president of the C. I. 0., to explain it to her. Procaccini testified
that after Hritz had explained the meaning of the notice and had asked her to
sign a check-off authorization, she told Hritz that she was not a member of the
C. I. O. and did not want to have anything more to do with it. During the conver-
sation she also, according to her testimony, asked Hritz if she should make a
written statement of her position, but was assured by Hritz that this was not
necessary and that she would take care of it for her. Hritz' testimony on this
subject is not seriously in conflict with that of Procaccini Her version is that
Procaccini asked her what she would have to do to get out of the C I. O. and
offered to give her her resignation in writing, but that Hritz advised Procaccini
to hand it in to her shop steward. She testified that she did not recall that
Procaccini had made the statement, during this conversation, that she no longer
was a member of the Union. Procaccini did not thereafter approach her steward as
suggested by Hritz. Hritz is no longer employed by Respondent and both she
and Procaccini appeared to make a sincere effort to relate what had taken place
during their conversation. However, it is found that on the occasion mentioned,
Procaccini had already abandoned the C. I. 0 ; that she so advised Hritz as vice-
president of that organization; that she did not then regard herself as a mem-
ber in good standing and that the conversation with Hritz dealt with nothing
more than a formal confirmation of Procaccini's attitude toward the C. I. O.
In August 1944, Procaccini was approached by her shop steward with a request
that she sign a voluntary check-off authorization. Her reply was that she was not
a member of the Union and was not going to renew her membership
On February 12, 1945, she was called to Stone's office and told that the Union
had reported her as delinquent in her dues. She told him she did not belong to the
C. I. 0 ; repeated the conversation she had had with Hritz; and repeated that
she did not consider herself a member of the Union Procaccini consistently refused
to pay any money to the C. I. O. for dues and the following day was discharged.
From the foregoing it is found that on July 6, 1944, Procaccini was not a mem-
ber of the C. I. O. in good standing, and that she did not at any time thereafter
reinstate herself as a member in good standing or otherwise acquire membership
in good standing in that labor organization
Josephine Jaconski, an employee in the Special Products Division, although dis-
charged with the other three heretofore mentioned, on February 13, 1945,
allegedly under the provisions of the maintenance of membership feature of the
contract for non-payment of dues in the C. 1. 0 , presents a slightly different
approach. She joined the C. I. O. in September 1943 and thereafter paid her
dues to a shop steward each month through April 1944. She became delinquent
for the months of May, June, July and August, but in the latter part of August,
at the request of her shop steward , signed an undated check-off authorization. The
first dues paid by Respondent under the check-off authorization were for the
month of September, after which her dues were automatically kept up each month
until the time of her discharge. She never was asked to make up the four months
delinquency above noted, and did not do so. On December 27, 1944, she attempted
BAKER & COMPANY, INC. 847
to cancel her check-off authorization and signed a written withdrawal which was
handed to her shop steward and by him delivered to Respondent. Respondent
however, under provisions of the contract, refused to recognize the withdrawal and
returned the document.
In October or November of 1944, Jaconski was designated by the employees
in her department to serve as chairman of the Policy Committee heretofore referred
to, and continued in that capacity until her discharge on February 13, 1945. From
August 1944 until the time of her discharge she regularly attended the meetings
of the C. I 0 and participated therein without having her authority to do so
challenged. At no time during that period was any demand made upon her for
the dues representing the 4 months of delinquency above referred to. In January
1945, she joined the International Association of Machinists, A F. L.
On February 10, she was called in to Bayes' office where she met Stone, her
foreman, and Bayes The latter notified her that the C I. O. had advised him she
was delinquent in dues. Stone urged her to take up the delinquency and restore
herself to good standing and told her that if this was not done, it would be
necessary to discharge her Jaconski testified that she made no reply, that in fact she
was too frightened to make any reply; but that on February 13 when she was
called into Stone's office to receive her notice of discharge, Stone offered to advance
her the money to pay her dues as he had done to the other three persons here in-
volved and that there she called his attention to the fact that Respondent had been
deducting her union dues from her wages each month since August, that she con-
sidered herself a member in good standing and that she did not believe there was
any justification for the discharge. No mention was made then of the fact that she
had not paid her dues for the months of May, June, and July 8
At no time did the C. I. 0 make demand on Jaconski for her delinquent dues
beyond posting the notice herein set out
If the Union regarded Jaconski as delinquent in dues sufficient to justify the
demand for her discharge under the maintenance of membership clause of the
contract, then the delinquency must be considered as having been applicable to
the over-all period covering May, June, July, and August Section II, Article 8
of the By-Laws, reads: "Dues of each member shall be due on the first day
of each month and past due on the first day of the following month" This being
true, Jaconski was delinquent and in arrears as to dues for 2 months on July 1,
1944, and therefore not in good standing on the effective date of the escape period
If she could be said to have regained good standing by executing the check-off
authorization, whereby her dues were automatically paid from September 1944
to her date of discharge, she could not have lost her good standing for non-payment
Respondent knew of the check-off and had it called to its attention by Jaconski
before she actually was discharged The question therefore was squarely raised
But since the C I O. had elected to regard the delinquency of May, June, July,
and August 1944 as a continuing one, disqualifying her good standing in the
C. 1 O. in February 1945, her status must be measured from the standpoint of
s Jaconski's dues book, which is in evidence, shows a dues stamp affixed for the month of
August 1944. However, it does not reflect a dues stamp for January 1945 The testimony of
the officers of respondent is that the first deduction made under her checkoff authorization
was for September dues and that such deductions continued to be made through and to the
time of her discharge. She was not sure whether the dues stamp in her book for the month
of August was correctly placed since, when she signed the check - off authorization she was
given a stamp by her shop steward. and told to put it in the place for the "current month." It is
found that her delinquency actually extended over the months of May, June, July and August
and that the dues stamp for August appearing in her dues book was erroneously placed there
and should have been in the space designated for September 1944.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her status on July 6, 1944. When so measured, Jaconski falls into the same
category as the other three persons heretofore referred to. From all the foregoing,
it is therefore found that on July 6, 1944, Jaconski was in arrears more than 2
months and was not a member of the C. I. O. in good standing ; that thereafter,
notwithstanding her payment of dues from September 1 to the time of her dis-
charge, she never regained good standing in the C. I. O. and that by reason
thereof, at no time was a member of the C. I. O. to whom the provisions of the
maintenance of membership clause in the contract apply.
C. The duty of Respondent to inquire
It will be seen that in each of the instances in the discharges, Respondent was
advised by the employees involved that he either was in good standing with the
union or had always regarded himself as not being a member to whom the pro-
visions of the maintenance of membership provision would apply.
The standard maintenance of membership provision which was made a part of
the directive of June 21, 1944, has been heretofore set out in full in this report.
It will be noted that in sub-paragraphs (b) and (c), provision is made for the
determination by arbitration of disputes which may arise as to whether an employee
was a member of the Union in good standing on the date specified, or whether
he had failed to maintain his membership in the Union in good standing after
such date. With this provision before it and with knowledge of the contention
of these employees that they disputed either that they were members of the C. I. O.
in good standing on the 6th of July, 1944, or that they had failed to maintain
their membership in the C. I. O. in good standing after that date, it became
incumbent upon Respondent to so advise the C. I. O. and to refuse to comply
with its request for the discharge-of these persons until the dispute had been dis-
posed of in the prescribed manner. In fact, in a subsequent situation arising between
the C. I. O. and the Respondent some months after the discharges herein referred
to, Respondent did question the propriety of the discharges with the result that
the matter was determined by the arbitration method.
Both C. I. O. and Respondent appear to have been at fault in connection with
these discharges. The directive required the Union to file with the Regional War
Labor Board, following the expiration of the escape period on July 6, 1944, a list
of its members in good standing as of that date, the obvious purpose being to
make available a list of those to whom the maintenance of membership provision
would apply and thus provide the employer with some guide for determining the
applicability of the provision when and if it should be involved by the contracting
Union. The C. I. O. failed to file such a list and because of such failure, neither
Respondent nor the employees here involved had any way of knowing or of
finding out that the C. I. O. regarded these employees as among those for whom
maintenance of membership was mandatory. On the other hand, Respondent failed
to request any information from which it could evaluate the appropriateness of
demands from the C. I. O. that the clause be invoked and employees discharged
for failing to maintain their membership. In view of this, and since the employer
was advised at the time by the employees involved that they claimed immunity to
the maintenance of membership requirement and were not subject to discharge
thereunder, a duty was imposed upon Respondent to make reasonable investigation
and, if necessary, to invoke the provisions for arbitration set out in the directive
that were designed to meet exactly such a situation. Failing to do any of these things,
Respondent acted at its own peril and, in effect, discriminatorily and illegally dis-
charged these employees because of their failure to maintain their membership in
BAKER & COMPANY, INC. 849
C. I. O. in good standing, thereby encouraging membership in the C. I. 0, and
interfering with, restraining and coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of Respondent set forth in Section III above, occurring in con-
nection with the operations of Respondent described in Section I above, have a close,
intimate and substantial relation to trade, traffic and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices affect-
ing commerce, the undersigned will recommend that it cease and desist therefrom,
and take affirmative action designed to effectuate the policies of the Act Since it
has been found that Respondent discriminatorily discharged Clarence Hedge, Fred
Feldtmann, Ellen Procaccini and Josephine Jaconski on February 13, 1945, because
of their failure to maintain membership in good standing in Precious Metal
Workers Union, Local 668, International Union of Mine, Mill and Smelter
Workers, affiliated with the Congress of Industrial Organizations when they were
under no obligation so to do, thereby encouraging membership in that organization,
it will be recommended that full and immediate reinstatement be offered them and
each of them to their former equivalent positions, and that they be made whole
for any loss of wages they may have incurred because of such discrimination, less
their net earnings 9 during the period from the date of their discriminatory dis-
charge above noted, to wit : February 13, 1945, to the date of the respective offers
of reinstatement to them and each of them, and that it post appropriate notices to
its employees in connection with such action.
On the basis of the above findings of fact and upon the entire record in this case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, A. F. L., and Precious Metal
Workers Union, Local 668 of the International Union of Mine, Mill and Smelter
Workers, affiliated with the C. I. 0., are labor organizations within the meaning
of Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Clarence
Hedge, Fred Feldtmann, Ellen Procaccini, and Josephine Jaconski, thereby en-
couraging membership in Precious Metal Workers Union, Local 668 of the Inter-
national Union of Mine, Mill and Smelter Workers, affiliated with the C. I. 0.,
• By "net earnings" is meant earnings less expenses , such as for transportation , room, and
board, incurred by an employee in connection with obtaining work and working elsewhere than
for the respondent, which would not have been incurred but for his unlawful discharge and the
consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber
Company, 8 N. L. R. B. 440. Monies receive for work performed upon Federal, State, county,
municipal , or other work -relief projects shall be considered as earnings . See Republic Steel
Corporation v. N. L. R. B., 311 U. S. 7.
850 T)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
4. By the discharge of Clarence Hedge, Fred Feldtmann, Ellen Procaccini and
Josephine Jaconski, Respondent has not discouraged membership in A. F. L. or
any other labor organization
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that Respondent, Baker & Company, Inc., its officers, agents,
representatives, successors, and assigns shall
1. Cease and desist from:
(a) Encouraging membership in Precious Metal Workers Union, Local 668
of the International Union of Mine, Mill and Smelter Workers, affiliated with the
C 'I. O., or any other labor organization of its employees, by discriminating against
such employees in any manner in regard to their hire, tenure of employment or
any term or condition of employment, for failure to maintain membership in good
standing in such organization, unless such employee or employees shall be obligated
to do so under the provisions of the Regional War Labor Board Directive of
June 21, 1944, or any contract entered into by Respondent pursuant to and in
conformity with the provisions of such directive and its appurtenant documents, or
unless such employee shall be obligated hereafter so to maintain membership
in good standing in a labor organization under the provisions of a valid contract
then existing between Respondent and such labor organization.
2. Take the following affirmative action which will effectuate the policies of the
Act.
(a) Offer to Clarence Hedge, Fred Feldtmann, Ellen Procaccini, and
Josephine Jaconski and each of them, without prejudice to their seniority or other
rights and privileges, including vacation accruals, over-all automatic pay adjust-
ments and such other rights or privileges as would have accrued to them had they
remained continuously at work in Respondent's employ, full and immediate rein-
statement to their respective positions or to substantially equivalent employment.
(b) Make the said Clarence Hedge, Fred Feldtmann, Ellen Procaccini, and
Josephine Jaconski whole for any loss they respectively may have suffered as a
result of Respondent's discrimination in regard to their tenure of employment,
by payment to them respectively of a sum of money equal to the amount each
normally would have earned as wages had the discrimination against them not
occurred, less the amount of their net earnings, as heretofore defined, from the
date of the discriminatory discharge, to wit : February 13, 1945, to the time when
they shall be offered reinstatement as above set forth.
(c) Post immediately in conspicuous places through Respondent's plant at
Newark, and East Newark, New Jersey, and maintain for a period of sixty (60)
consecutive days from the date of posting, a notice to its employees in conformity
with the notice attached hereto and marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director of the Second Region, shall, after being
duly signed by Respondent's representative, be -posted by Respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be taken by
BARER & COMPANY, INC. 851
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Second Region in writing within
ten (10) days from receipt of this Intermediate Report what steps Respondent has
taken to comply therewith.
It is also recommended that so much of the complaint as alleges the Respondent,
by the acts complained of, discouraged membership in A F. L. be dismissed.
It is further recommended that unless on or before ten ( 10) days from the date
of the receipt of this Intermediate Report, Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring Respondent to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding (including rulings upon all motions
or objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of excep-
tions and/or brief, the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the Regional
Director As further provided in said Section 33, should any party desire permis-
sion to argue orally before the Board, request therefor must be made in writing
to the Board within ten (10) days from the date of the order transferring the case
to the Board.
R. N. DENHAM,
Trial Examiner.
Dated January 28, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not encourage membership in Precious Metal Workers Union,
Local 668 of the International Union of Mine, Mill and Smelter Workers,
affiliated with the C. I. 0., or any other labor organization of our employees,
by discriminating against such employees in any manner in regard to their
hire, tenure of employment or any term or condition of employment, for
failure to maintain membership in good standing in such organization , unless
such employee or employees shall be obligated so to do under the provisions
of the Regional War Labor Board Directive of June 21, 1944, or any contract
entered into by Respondent pursuant to and in conformity with the provisions
of such directive and its appurtenant documents, or unless such employee shall
be obligated hereafter so to maintain membership in good standing in a labor
organization under the provisions of a valid contract then existing between
Respondent and such labor organization.
6 9 6 9 6616-5 5
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
CLARENCE HEDGE ELLEN PROCACCINI
FRED FELDTMANN JOSEPHINE JACONSKI
BAKER & COMPANY, INC,
Employer.
By ................. ............. ......
(Representative) (Title)
Dated ....... .............. .... ..
NoTE.-Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.