Chun King Sales, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1960

126 N.L.R.B. 851 (N.L.R.B. 1960)

CHUN KING SALES, INC. 851
be to require the Union and the Respondent Local jointly and severally to refund
to those employees of the Company who were furnished by the Respondent Local all
initiation fees, dues, assessments , and other moneys unlawfully exacted as the price
for their employment , the period of liability to begin 6 months prior to the filing
and service of the charges against them respectively herein and extending to all
such moneys thereafter collected 2°
On the basis of the above findings of fact , and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer within the meaning of the Act.
2. The Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. The Union and Respondent Local are labor organizations within the meaning
of Section 2(5) of the Act.
4. Respondent Stender is an agent of the Union within the meaning of Section
2(13) of the Act.
5. By maintaining and by giving effect to an exclusive hiring-hall agreement,
the Union and Respondent Local have caused and have attempted to cause employ-
ers, including the Company, to discriminate in regard to hire and tenure of employ-
ment of their employees in violation of Section 8(a)(3) of the Act, and by such
conduct the Union and Respondent Local have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(b)(2) and 8(b),(1)(A) of
the Act.
6. By causing the Company to discriminate in regard to the hire and tenure
of employment of Orran Lyman Chamberlain and George B. Seybold, the Union
and Respondent Local have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(b)(2) and 8(b)(1),(A) of the Act.
7. By threatening said Chamberlain and Seybold with action that would impair
their obtaining or retaining employment unless they should withdraw charges filed
with the Board, the Union and Respondent Stender have restrained and coerced
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
violating Section 8 (b) (1) (A) of the Act.
8. The foregoing unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
10 See footnotes 10 and 19, supra.
Chun King Sales, Inc. and Leslie Moder
Chun King Sales , Inc. and Charles H. Lucht
Local 1116, Retail Clerks International Association , AFL-CIO
and Leslie Moder
Local 1116 , Retail Clerks International Association , AFL-CIO
and Charles H. Lucht. Cases Nos. 18-CA-9941, 18-CA-995,
18-CB-117, 18-CB-118. February ^?5, 1960
DECISION AND ORDER
On July 30, 1959, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
126 NLRB No. 98.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report, and supporting
briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as indicated below.
1. The Trial Examiner found that the Company violated Section
8 (a) (3) and (1) of the Act by discharging Leslie Moder and Charles
H. Lucht on November 4, 1958, and that the Union violated Section
8(b) (2) and (1) (A) of the Act by requesting the discharges.
We agree with the Trial Examiner, for the reasons set forth in the
Intermediate Report, that the Union violated Section 8 (b) (2) and
(1) (A) of the Act by requesting the discharge of Moder and Lucht.
In this connection, we reject the Union's contention that Moder re-
quested a refund of his dues. The record shows that Moder's alleged
request for a refund occurred in the context of Union Business Agent
Foster's demand for an initiation fee from Moder notwithstanding the
fact that dues had been deducted from his pay for several months.
Moder, in effect, wanted to know from Foster why the Union should
now claim an initiation fee when dues had already been deducted
from his pay and, further, what had been done with the dues during
the months the Union now claimed he did not belong. In these
circumstances, we find, contrary to the Union's contention, that Moder
did not request a refund of his dues. Moreover, the tender made by
Moder and Lucht on October 31, as described in the Intermediate
Report, reasonably would constitute a rescission of any prior request
for refund of dues. However, unlike the Trial Examiner, we find that
the record fails to support a finding, within proviso (B) to Section
8(a) (3), that the Company knew of Moder's and Lucht's unsuccessful
efforts to pay their initiation fees prior to the discharges. In these
circumstances, our agreement with the Trial Examiner, that the Com-
pany violated Section 8(a) (3) and (1) of the Act in this respect, is
predicated solely on the fact that the discharges were made pursuant
to an unlawful union-security agreement, as found hereinafter.
2. The Trial Examiner further found that the Respondents also
violated Section 8(a) (1) and (3) and 8(b) (1) (A) and (2) of the
Act, respectively, by maintaining in effect certain provisions in the
union-security Section of the May 22, 1956, contract, to which they
were parties during the period covered by the complaint.
i The Respondents also requested oral argument. This request is hereby denied as the
record, including the exceptions and briefs, adequately presents the issues and the posi-
tions of the parties.
CHUN KING SALES, INC. 853
We agree with the Trial Examiner that paragraph B 2 is unlawful
because it fails to provide a full 30-day period before new employees
are required to become members of the Union.' We also agree with
the Trial Examiner's conclusion that, in practice, new employees are
not afforded a full 30-day period before they are required to join the
Union. In addition, we also find that paragraph B is illegal because
it fails to provide a 30-day period after the execution of the contract
for old employees to become members of the Union.' However, we
shall not pass upon the legality of paragraph D,5 the 24-hour pro-
vision, as its validity was neither attacked in the complaint nor
litigated at the hearing.'
3. The Trial Examiner recommended that the Board invoke its
Brown-Olds 7 remedy, requiring disgorgement of dues and fees paid
by employees to a union by virtue of an illegal union-security contract.
He made this recommendation because, in addition to enforcing the
illegal union-security provision of the contract cited above, the Com-
pany also rendered assistance to the Union by securing applications
for membership in the Union and dues authorization cards from new
employees on their initial date of hire.' Respondents, however, con-
tend that, even assuming the accuracy of these findings, Brown-Olds
2 Paragraph B of the union -security section of the 1956 contract provides as follows
B All employees, except those exempt in Paragraph A, hereinafter classified who,
at the date of the signing of this contract , have been continuously in the employ of
the Employer for thirty ( 30) days or more shall be members in good standing while
so employed , and all new employees in such classification shall become members of
said Union within thirty (30) days trom the date of their employment, and in the
event any employee becomes delinquent in dues, the Employer shall be given a
three ( 3) day notice thereof
3 Argo Steel Construction Company, 122 NLRB 1077
4 Crawford Clothes, Inc., 123 NLRB 471
5 Paragraph D of the union-security section of the 1956 contract provide,, as follows
D Within twenty -four ( 24) hours after being employed all new employees will be
required to report at the union office
° Member Fanning disagrees with the majority finding that paragraph 11 of the contract
is rendered unlawful by reason of the provision that new employees . . shall become
members of said Union within thirty (30) days from the (late of their employment .11
See, e g., At Massera, Inc, et at ., 101 NLRB 837, 838 The Argo case is distinguishable
in that it requires new employees before they can be hired to signify their intention
within 30 days to join the union In resolving the contract issue , Member Fanning
would not rely on evidence of practice under the contract , as no finding is made that the
contract clauses in question are ambiguous Nor would he find that in practice new
employees were not afforded a full 30-day period of grace, in view of the Company's
clear testimony to the contrary However, Member Fanning agrees that the provision
in paragraph B that all employees "in the employ of the Employer for thirty (30) days
or more shall be members is unlawful, as it requires old nonmember employees to.11
join the Union without allowing a 30-day grace period Cf . Whyte Manufacturing
Company, Inc., 109 NLRB 1125 , where it was made clear that all the old employees were
already union members, without taint of illegality, when the contract was executed.
The Crawford case , in his opinion , is inapposite
' J S. Brown -E F. Olds Plumbing f Heating Corporation , 115 NLRB 594.
8 While finding that "this procedure plainly tends to give the prospective employee the
impression that he must sign an application for union membership and a dues authoriza-
tion as a condition of securing employment," the Trial Examiner did not find , and the
record would not support a finding , that prospective employees would not be hired if they
refused to sign such applications on their initial data of hire.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should not be applied because the violations found do not create closed-
shop or preferential-hiring conditions usually found in cases where
Brown-Olds was invoked.
In the Brown-Olds precedent, there was a bald closed-shop contract
that conditioned employment of all employees upon union member-
ship without the benefit of any grace period. It thus constituted a
flagrant violation of statutory policy. On the other hand, as herein-
above set forth, although the union-security clause involved herein
is illegal because employees are by the terms thereof not afforded the
full 30-day grace period required by the proviso to Section 8(a) (3),
it does not either condition initial employment upon union member-
ship, or in any way grant to the Union control over the hiring of
employees. Nor do we find on the instant record that the Company's
assistance to the Union amounted to a requirement that prospective
employees join the Union as a condition of employment. In these
circumstances, we do not believe that imposition of the Brown-Olds
remedy is warranted and we shall therefore not adopt the Trial Ex-
aminer's recommendation to that eflect.9
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent Company, Chun King Sales, Inc., its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Assisting or contributing support to Local 1116, Retail Clerks
International Union, AFL-CIO, or to any other labor organization,
by soliciting and procuring from employees and applicants for em-
ployment, during the hiring procedure, applications for union mem-
bership and signed authorizations for the checkoff of union member-
ship dues from wages.
(b) Recognizing or in any other manner dealing with the above-
named Union, or any successor thereto, as the collective-bargaining
representative of its employees unless and until such organization
shall have been certified as such representative by the Board.
(c) Performing or giving effect to its agreement of May 22, 1956,
with the aforesaid Union, or to any modification, extension, supple-
ment, or renewal thereof, or to any other contract, agreement, or un-
derstanding entered into with said labor organization or any suc-
9 Cf. Vordberg -Selah Fruit, Inc, et ai., 126 NLRB 714; Alaska Salmon Industry Inc.,
122 NLRB 1552 Unlike their colleagues, Members Rodgers and Bean would adopt the
Trial Examiner ' s recommendation that the Brown - Olds remedy be applied in this case.
CHUN KING SALES, INC. 855
cessor thereto, unless and until said labor organization shall have
been certified by the National Labor Relations Board, provided, how-
ever, that nothing herein shall be construed to require the Respondent
Company to vary any substantive provisions of such agreement, or to
prejudice the assertion by the employees of any rights that they may
have thereunder.
(d) Giving effect to any checkoff cards heretofore executed by the
employees authorizing deductions from wages for remittance to the
aforesaid Union.
(e) Encouraging membership in the aforesaid Union, or in any
other labor organization of its employees, by discriminating in regard
to hire or tenure of employment or any term or condition of employ-
ment, except to the extent permitted by the proviso to Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
(f) Interfering with, restraining, or coercing its employees in any
other manner in the exercise of 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 condi-
tion of employment, as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withhold all recognition from Local 1116, Retail Clerks Inter-
national Union, AFL-CIO, as the representative of any of its em-
ployees for the purpose of dealing with the Respondent Company
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or any other condition of employment, unless and until
said organization shall have been certified by the Board as such
representative.
(b) Jointly and severally with the aforesaid Union make whole
Leslie Moder and Charles H. Lucht for any loss of pay they may have
suffered as a result of the discrimination against them, in the manner
set forth in "The Remedy" section of the Intermediate Report.
(c) Offer Leslie Moder and Charles H. Lucht immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges.
(d) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to compute the amount of backpay due
Leslie Moder and Charles H. Lucht under the terms of this Orc"Cer.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its plant in Duluth, Minnesota, copies of the notice at-
tached hereto marked "Appendix A.7 10 Copies of said notice, to be
furnished by the Regional Director for the Eighteenth Region, shall,
after being signed by the Respondent Company's authorized represent-
ative, be posted by it immediately upon receipt thereof and main-
tained for 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any other material.
(f) Post at the same places and under the same conditions as set
forth in (e), above, as soon as they are forwarded by the Regional
Director, copies of the notice of Respondent Union attached hereto
as "Appendix B."
(g) Mail to the Regional Director for the Eighteenth Region copies
of the notice attached hereto marked "Appendix A" for posting by
the Respondent Union in its business office and meeting hall in Duluth,
Minnesota, in places where notices to members are customarily posted.
Copies of said notice, to be furnished by the Regional Director, shall,
after being signed as provided above, be forthwith returned to the
Regional Director for such posting.
(h) Notify the Regional Director for the Eighteenth Region, in
writing, within 10 days of the date of this Order, what steps it has
taken to comply herewith.
B. The Respondent Union, Local 1116, Retail Clerks International
Association, AFL-CIO, its officers, agents, representatives, successors,
and assigns, 'shall :
1. Cease and desist from :
(a) Acting as the exclusive bargaining representative of any of the
employees of Respondent Chun King Sales, Inc., for the purpose of
dealing with said Company concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment unless and until said Union shall have been certified by
the Board as such representative.
(b) Giving effect to, or in any way enforcing the agreement dated
May 22, 1956, or any extension, renewal, or modification thereof, with
the Respondent Company, unless and until the said Union shall have
been certified by the Board as such representative.
(c) Causing or attempting to cause the Respondent Company to
discriminate against employees in violation of Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
CHUN KING SALES, INC. 857
(d) Restraining or coercing employees of the Respondent Company
in the right to engage in or refrain from engaging in any or all of
the activities guaranteed by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring member-
ship in a labor organization, executed in conformity with Section
8 (a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act, as amended :
(a) Jointly and severally with the Respondent Company, make
whole Leslie Moder and Charles H. Lucht for any loss of pay they
may have suffered by reason of the discrimination against them in
the manner set forth in "The Remedy" section of the Intermediate
Report.
(b) Send written notice to the Respondent Company that it has
no objection to the employment of Leslie Moder and Charles H. Lucht
by the Company, and requests it to offer them immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
and mail Leslie Moder and Charles H. Lucht copies of the aforesaid
written notice.
(c) Post at its business office and meeting hall in Duluth, Minne-
sota, copies of the notice attached hereto marked "Appendix B." "
Copies of said notice, to be furnished by the Regional Director for the
Eighteenth Region, shall, after being duly signed by an official repre-
sentative of the aforesaid Union, be posted by the latter organization
immediately upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Post at the same places and under the same conditions as set
forth in (c), above, as soon as forwarded by the Regional Director,
copies of the notice attached hereto marked "Appendix A."
(e) Mail to the Regional Director for the Eighteenth Region signed
copies of the notice attached hereto as Appendix B, to be posted by
Respondent Company at the plant of the latter, as provided above.
Copies of this notice, to be furnished by the Regional Director, shall
be returned to the Regional Director forthwith for such posting after
being signed by the Respondent Union's representative.
(f) Notify the Regional Director for the Eighteenth Region, in
writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
"See footnote 10
858 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 Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT contribute support to Local 1116, Retail Clerks
International Association, AFL-CIO, or to any other labor
organization of our employees, by soliciting and procuring from
employees and applicants for employment, during the hiring pro-
cedure, applications for union membership and signed authori-
zations for the checkoff of union membership dues from wages.
WE WILL NOT recognize or in any other manner deal with the
above-named Union, or any successor thereto, as the collective-
bargaining representative of any of our employees unless and
until such organization shall have been certified as such repre-
sentative by the National Labor Relations Board.
WE WILL NOT perform or give effect to the agreement of May
22, 1956, or to any other contract, or to any modification, exten-
sion, supplement, or renewal thereof, entered into with said labor
organiaztion or any successor thereto, until the said labor organi-
zation has been certified by the National Labor Relations Board.
WE WILL NOT encourage membership in the above-named Union
or in any other labor organization of our employees, by the dis-
charge of any employees, or by discriminating in any other
manner in regard to their hire or tenure of employment, or any
term or condition of employment, except to the extent permitted
by'Section 8(a) (3) of the National Labor Relations Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of
1959.
WE WILL offer to Leslie Moder and Charles H. Lucht immedi-
ate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to any seniority or other rights
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination against them.
WE WILL NOT give effect to any checkoff cards, heretofore exe-
cuted by our employees, authorizing deductions from their wages
for remittance to the aforesaid Union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees or applicants for employment in the exercise
of their rights under Section 7 of the National Labor Relations
Act, except as permitted by Section 8 (a) (3) of that Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of
1959.
CHUN KING SALES, INC. 859
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union, or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
National Labor Relations Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
C1IUN KING SALES, INC.,
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
NOTICE TO ALL MEMBERS OF LOCAL 1116, RETAIL CLERKS INTERNA-
TIONAL ASSOCIATION, AFL-CIO, AND TO ALL EMPLOYEES OF AND
APPLICANTS FOR EMPLOYMENT WITH, CHUN KING SALES, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act as amended, we hereby notify you that :
WE WILL NOT act as the exclusive bargaining representative of
any of the employees of Chun King Sales, Inc., unless and until
we shall have been certified by the Board as such representative.
WE WILL NOT give effect to the agreement dated May 22, 1959,
between Chun King Sales, Inc., and ourselves, or to any extension,
renewal, or modification thereof unless and until we shall have
been certified by the Board as such representative.
WE WILL make whole Leslie Moder and Charles H. Lucht for
any loss of pay suffered as a result of the discrimination against
them, and will notify them and Chun King Sales, Inc., that we
have no objection to their employment in the future.
WE WILL NOT cause or attempt to cause Chun King Sales, Inc.,
to discriminate against employees or applicants for employment
in violation of Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner restrain or coerce employees
or applicants for employment with Chun King Sales, Inc., in
the right to engage in or refrain from engaging in any or all
of the activities guaranteed by Section 7 of the National Labor
Relations 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, executed in conformity with Sec-
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
LOCAL 1116, RETAIL CLERKS INTERNA-
TIONAL ASSOCIATION, AFL-CIO,
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
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly desig-
nated Trial Examiner on a consolidated complaint of the General Counsel and
answers of the Respondents ( herein called Company and Union , respectively), at
a hearing in Duluth , Minnesota , on May 5 and 6, 1959. The issues litigated were
whether the Company had violated Section 8(a)(1), (2), and (3) of the Act and
whether the Union had violated Section 8(b)(1)(A) and (2) of the Act. At the
close of the hearing the parties waived oral argument . Motions to dismiss, made
at the close of the hearing, were taken under advisement. They are disposed of as
appears hereinafter in this report. On June 12, 1959, the General Counsel, on
June 15, the Company and on June 17, the Union filed unusually thorough and
extremely helpful briefs which have been fully considered.
Upon the entire record and from my observation of the witnesses , I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Chun King Sales , Inc., a corporation , operates a plant in Duluth , Minnesota, where
it is engaged in the manufacture of Chinese -American food products . During 1958
it purchased raw materials valued in excess of $500,000 from points outside the State
of Minnesota . In the same period its sales of finished products to points outside
the State of Minnesota were valued in excess of $1,000,000 . On the foregoing facts,
the Respondents concede, and I find, that the Company is engaged in commerce
within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Moder and Lucht
The Company has approximately 350 employees at its Duluth plant. About 200
are in the production and maintenance unit for which the Union is the exclusive
bargaining agent. For over 12 years the latter has had contractual relations with
the Company. The current collective-bargaining agreement was signed in May 1956,
and, by its terms, is to be effective until May 31, 1962. Pursuant to the union-security
provisions of the aforesaid contract the Company has regularly deducted dues from
the wages of employees within the bargaining unit.
Leslie Moder and Charles H. Lucht, the complainants herein, were employees of
the maintenance department. Moder was hired in May 1958, and Lucht in July of
the same year. Neither one signed a dues deduction authorization. Nevertheless,
union dues of $3.25 per month were deducted from Moder's pay from July until
November. Similarly, dues were deducted from Lucht's wages from the fourth
payday after he had been employed. By letter dated October 31, 1958, the Union
requested that the Company terminate them for nonmembership in the Retail Clerks.
On about November 4, the Company gave Moder a check for $16.25 and Lucht a
check for $9.75. Written on the face of each check was the notation "Dues with-
held in error." On that same day they were informed by William C. Olsen, person-
CHUN KING SALES, INC. 861
nel director for the Company, that the Union had requested their dismissal and that,
as a result, they would not be permitted to work until they had settled their dif-
ferences with the Union. On November 17, the Union wrote the Company that it
had no objection to the complainants reapplying for work. At that point, however,
the Company had already replaced them and they were never reemployed.
The General Counsel contends that Moder and Lucht were discriminatorily ter-
minated for reasons other than the failure to tender periodic dues and initiation fees.
The Company and the Union, on the other hand, contend that these employees did
not tender the required initiation fee prior to their discharge and that they were
lawfully terminated for that reason.
At some time in October 1958, Moder and several other employees attended a
meeting of the Union at which they were initiated as members of the Retail Clerks.
Nothing was said to him at that time about paying an initiation fee. In fact, during
the first 5 months of his employment no union representative asked Moder to loin
the Union. On about October 10, Florence Jiroux, president of the Chun King
division of Local 1116, contacted Moder and told him that he would have to pay $5
to be initiated.' Both Jiroux and Moder testified as to this conversation. There
was no conflict in their testimony. According to Moder, he objected to paying an
initiation fee after the Company had been deducting dues from his pay for so many
months and told Jiroux that he would not pay the fee until he had talked with Elmer
Foster, business representative for the Respondent Union. Jiroux promised that
she would make an appointment for him. Jiroux testified that, in addition to these
objections, Moder also complained about having to join the Retail Clerks because
"he had carried a union card in some other organizations" and because he thought
the maintenance department should have a separate union of its own, such as the
firemen had at the plant.2 Jiroux left a dues checkoff authorization slip with Moder.
He refused to sign the authorization until he had talked with Foster. Jiroux testified
that he told her at the time, "I am not saying that I am going to sign it but I am going
up to the union office."
One day in the latter part of October, and after Moder had asked Jiroux to arrange
an appointment for him with Foster, Jiroux gave him a slip to report to the union
office. On the afternoon of October 30, Moder went to the headquarters of the
Retail Clerks. There he met Eleanor Peterson, a secretary in the office. The latter
testified that Moder presented a note from Jiroux to the effect that he was reporting
for payment of the initiation fee and stated that he wanted to speak to Foster. She
told him that Foster was not in the office. She further testified that at this point
she assumed that he was about to pay the initiation fee and for that reason actually
wrote out a receipt for it. Moder, however, then told her that he would not have
the money until payday.3 Moder's version of this conversation did not differ in any
substantial respects from that of Peterson. According to Moder, when she asked
him for the $5 he told her that he would have to wait until the following day when
he would be in and pay it. Moder also testified that he endeavored to engage her
in a discussion as to why a mechanic had to belong to a clerks' union and that her
only response was the suggestion that he speak to Foster.
On the night of October 30 Foster telephoned Moder at his home. There followed
a long and heated argument between the two. According to Moder, he demanded
an explanation from Foster as to why the Union should claim that he had to pay
an initiation fee when dues had been deducted from his pay for several months and
further he wanted to know what had been done with the union dues which had been
deducted from his pay during the months that the Union now claimed he did not
belong. Foster testified that Moder discussed other unions to which he had belonged
and his participation in their activities. According to Foster, he told Moder that
if he did not pay the initiation fee he (Foster) would "have no alternative but to
write to the company requesting that he be released from employment " When
asked further as to what Moder said with reference to the initiation fee, Foster stated,
"He said that the company had withheld it, we were a bunch of racketeers, and that
he was going to sue us, he was going to get all the money we had and all the money
I had." Foster further testified that the following morning, October 31, on arriving
at his office, he dictated a letter to the Company in which he requested that it dis-
charge Moder and Lucht. At the same time he also instructed the office personnel
that if these two individuals came to the office he wanted to talk to them.
'The record does not disclose whether this was before or after Moder was actually
initiated at the union meeting.
8 The firemen were In a separate unit and were not represented by the Retail Clerks
8 Peterson thereupon wrote "voided" upon the receipt which she had already prepared
It appears as an exhibit in the record.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the afternoon of October 31, Moder went to the union office. Moder testified
that on this occasion he told the girl at the desk that he wanted to pay his initiation
fee and proffered a $5 bill for this purpose. According to Moder, this girl then
went into another office and upon her return she announced that she could not take
his $5 until Moder had seen Foster. Since the latter was unavailable at the time,
that concluded the conversation and Moder then left the office. Mrs. Peterson tes-
tified that on October 31 she heard Moder give his name in the outer office but that
she did not actually see him while he was there. She conceded that she did not
know whether Moder offered to pay his initiation fee at the time. On the other
hand, Irene Johnson, another secretary in the office of the Union, testified that she
did not see Moder in the office at any time that she was on duty that day.4 Foster
testified to the same effect.
It was undisputed that prior to October 30 Charles Lucht, the other complainant
in the case, had never been asked to join the Union, had never attended any union
meetings , and had never been initiated. Jiroux conceded that because he had been
on a different shift from hers she had never contacted him or requested that he pay
the initiation fee. Foster testified that on the afternoon of October 31 he telephoned
Lucht at the plant. According to Foster, he told Lucht that the Union had not
ieceived his initiation fees or dues and that the Union was going to ask that he be
terminated. He further testified that when he asked Lucht what he intended to do,
the latter told him that he intended to do whatever Moder did. According to Lucht,
Foster called him at the plant on the evening of October 30 and told him that he was
violating the contract in not paying his dues and that (Foster) was requesting his
dismissal. Lucht testified that when he asked whether he could see the business
representative the next day Foster terminated the conversation.
Lucht further testified that he went to the union office on the afternoon of
October 31. According to Lucht:
There was some girl behind the desk. I had my money in my hand and I said,
"I would like to pay my initiation fees," and I told her my name was Charles
Lucht. She kind of looked down at the desk, but she said, "I can't accept your
union dues." The desk was kind of behind , off in a corner like, and I couldn't
see what she was looking at.
Lucht then asked her why the stewards had not kept him informed as to his in-
debtedness and she showed him the filing system maintained in the office. Before
leaving the office he asked when Foster would be available and she told him that
he mgiht be in the next day, although she was not certain since that would be a
Saturday. Lucht testified that he returned to the union headquarters the next after-
noon, a Saturday, as soon as he got off work but found that the office was closed.
Irene Johnson testified that she had a conversation with Lucht at the union office,
that he had questioned her about the manner in which his dues had been deducted,
and that she had shown him the manner in which the files were kept. She testified
that this conversation occurred on Saturday, November 1, and that Lucht had not
been to the union office the day before. During her cross-examination, however,
and after she had been questioned about a pretrial affidavit she had given, it was
apparent that her recollection as to the date was very indistinct. She also conceded
that a passage in this same affidavit which read as follows, constituted her best
recollection of the events of this period:
Although I cannot recall that I actually did so in this instance, it is possible
that I could have told him [Moder] to wait until Eleanor Peterson came back
or to wait until Foster came if he actually offered to pay his initiation fee. I
cannot recall that he offered to pay any money. If he had offered the money
I don't know why I would not have taken it. However, it could have been that
finding his card not in the file, I told him to wait for Eleanor. On the other
hand, if this occurred after I had written or after I had typed the letter to the
company head man about the discharge of these two people, it is possible that
I could have told him to wait for Foster but I can't say now that this is what
happened.
Later, in this same affidavit she averred:
I find it very hard to recall exactly what occurred during the preceding days;
I cannot recall refusing to accept dues or fees from anyone, but after thinking
'Johnson also testified that Moder was in the office on two different occasions on
October 30. This conflicted with Moder's account, for he testified that he went to the
union office only once on October 30. Johnson, however, had a very hazy recollection as
to the period in question and her testimony in this respect is not credited.
CHUN KING SALES, INC. 863
over the events of those days I do recall that one calling himself Lucht came to
the office during the preceding week, I think, but certainly not later than Mon-
day, November the 3rd. I remember that I came to the office and I was there
alone, it must have been during Eleanor Peterson 's coffee break or at any rate
sometime when I was there alone as I could have been there on Saturday
morning.
Johnson also testified that Foster had told her during this period that he wanted to
speak with Moder personally when the latter came to the office.
The Respondents have vigorously assailed the credibility of Moder and Lucht. It
is true that as to one occasion , at least, the testimony of Moder was obviously in
error.5 On the other hand , from an examination of the testimony of the witnesses
set out above and from my reaction to the manner in which the testimony was given
and the comparative demeanor of the witnesses while on the stand, it is my conclu-
sion that the account of Moder and Lucht is the more accurate and credible as to
the events which occurred on October 30 to November 1. This is my conclusion
despite the fact that evidence was received of two felonies for which Lucht had
been convicted in 1929 and 1931 , and of two misdemeanors for which Moder had
been convicted . Of the latter two , one was a 1952 case for violation of parole
wherein Moder had originally been sentenced to 85 days on a county workfarm for
drunkenness and the other was a case in which he had been found guilty of resisting
arrest on December 31, 1954 , and for which he had been fined $15 and costs.
Evidence as to the last two convictions was received under the rule in Crown
Corrugated Container , Inc., 123 NLRB 318.6 In resolving the conflicts in the testi-
mony which appear in this record I have considered the evidence as to the foregoing
convictions as well as the fact that both of the complainants , on their applications
for employment with the Respondent Company, had answered "No" to the question
as to whether they had ever been arrested for any offenses other than minor traffic
violations.
In view of the foregoing conclusion , I find that on October 31 Moder, while at
the union office, offered to pay the $ 5 initiation fee and that he was told that it would
not be accepted until he had seen Foster . It is my further conclusion that: Foster
telephoned Lucht on October 30, the same evening he talked with Moder; Lucht
told him that he intended to follow the same course which Moder adopted; the
next morning ( October 31 ) Foster dictated a letter to the Company in which he
requested the termination of both of these employees ; and later that day Lucht
arrived at the union office and offered to pay his initiation fees but the personnel
there declined to accept the payment.
The Union request that Moder and Lucht be terminated was received by the
Company on about November 1, a Saturday ? On the morning of November 4,
Moder was summoned to the office of Personnel Manager Olsen where he met Olsen
and James Bingham, the latter being the plant superintendent . According to Moder's
uncontradicted testimony , "They said I was in poor standing with the union. .
8And Jim Bingham told me, he said , `You go downtown and get it straightened out.",
That afternoon , Lucht was summoned to Olsen 's office. When Lucht arrived, Olsen
handed him a check for $9.75. According to Lucht:
I says, "What is this all about Mr. Olsen?" He say, "You asked for your union
dues back or else they wouldn't have asked us to pay them back ." I said, "No,
6 For example , at one point during his cross -examination , Moder testified that he be-
lieved that it was on October 31 that he received his dues refund check from the
Company All the other evidence , however , including the fact that the check was dated
November 3 , indicated that lie did not receive it until on or about November 4
O The Company sought to offer evidence as to five other convictions which were for
drunkenness during the period from 1952 to 1958 . This evidence was rejected.
'This letter was signed by Foster and read, in relevant part , as follows.
Please be advised that Leslie Moder and Charles Lucht are not members of the
Retail Clerks Union , Local 1116 , in accordance with Article II of our contract. We
therefore , demand that their services be terminated immediately.
Please find enclosed our check for $16.25. This money was forwarded to us by
you. Mr Moder informs us that this money was withheld from his check without
proper authorization
8 On either November 3 or 4, it is not clear from the rehord , Moder was given a
company check for $16 25 , the total amount of dues which had been withheld from his
wages over a 5-month period despite the fact that he had never signed a checkoff authori-
zation. The check was dated November 3, and written on its face was the notation
"Dues withheld in error "
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I never asked for my union dues back." He says, "Here is the check. You
better go up and get that straightened out with the union right away" . he
said, "Don't come back to work until you get this straightened out with the
Union."
Both Lucht and Moder went to the union office that afternoon and sought to meet
Foster. They were informed that he was not available. The following day they
again returned to the union headquarters and were similarly advised.9 Finally, on
November 6, in another visit to his office they were able to contact Foster. At that
time they proffered the $5 for their initiation fees and Foster told them he would
only be able to hold it for them pending a vote of the membership on whether they
could be accepted back into the Union. That same day Moder returned to the plant
where he told Olsen about his meeting with Foster that morning. Olsen told him
that he would have to await the outcome of the Union's decision on the matter.
On the afternoon of November 12, the Union held a meeting at which those
present voted in favor of a resolution that the Retail Clerks would not object if
Moder and Lucht reapplied for work. Moder attended this meeting and the fol-
lowing morning went to the plant to inform Olsen of the results. The latter told
him that he would have to await official word from the Union. Although Foster
had been present at the meeting of November 12, he did not notify the Company of
the results until the next week when, on November 17, he wrote the following
letter:
DEAR MR. OLSEN: At our regular union meeting last week the matter of
Les Moder and Charles Lucht come up for discussion. The Union's official
position at this time is that the Union has no objection to either of these two
men reapplying for work at Chun King.
No copy of this letter was ever sent or supplied to the two complainants. However,
during the week that followed November 12, they contacted Olsen every day only to
hear from him that before he could do anything the Company would have to have
a written verification from the Union of its action. Finally, after receiving the
union letter of November 17, Olsen told Lucht that he had been replaced. On
about November 18, Moder telephoned Olsen to inquire as to whether he could
return. According to Moder, Olsen acknowledged receipt of the union letter, and
then asked what Moder was doing. The latter testified that when he stated that
he was looking for a job the personnel manager told him to "keep looking." The
reason for this latter comment was obvious at the hearing. Allen John Kolles,
presently personnel manager, testified that Lucht had been replaced on November
8, 1958, by a newly hired employee named Wilton Freshe, and that Moder's job
in the maintenance shop had been filled on November 13, 1958, by one Gerald
Turner who was transferred from another department. Neither Lucht nor Moder
was ever rehired.
At this point, an evidentiary question raised by the Respondent Company must
be considered. William C. Olsen, personnel manager for the Company, died in
February 1959, prior to the hearing before the Trial Examiner. The Respondent
Company objected both at the hearing and in its brief that the testimony of Moder
and Lucht as to their conversations with the decedent was inadmissible because of a
Minnesota statute barring such testimony.to In support of its objection the Respond-
ent Company contends that testimony as to conversations with Olsen would be
barred in the courts of the State of Minnesota (Sievers v. Sievers, 189 Minn. 576,
250 N.W., 574; Exstad v. Exstad, 202 Minn., 521, 279 N.W. 554) and that the
Federal District Courts in that State likewise adhere to this rule. Cashman v.
Mason, et al., 72 F. Supp. 487, 493 (D. Minn.), aff., 166 F. 2d 693 (C.A. 8). The
Company contends that the Minnesota statute must be applied here on the ground
that in unfair labor practice proceedings the Board must follow the rules of evidence
for the Federal District Court where the hearing is held.
s Eleanor Peterson testified that on November 5 both Lucht and Moder came to the
union office
m This statute, commonly known as the Minnesota Dead Man's Statute, is found in
Minnesota Statutes Annotated, section 595 04, and reads as follows
It shall not be competent for any party to an action, or any person interested in the
event thereof, to give evidence therein of or concerning any conversation with, or
admission of, a deceased or insane party or person relative to any matter at issue
between the parties, unless the testimony of such deceased or insane person con-
cerning such conversation or admission, given before his death or insanity, has been
preserved and can be produced in evidence by the opposite party, and then only in
respect to the conversation or admission to which such testimony relates.
CIIUN KING SALES, INC. 865
At the outset it should be noted that the requirement in Section 10(b) of the
Act, viz, that the rules of evidence in the United States District Courts be followed
in complaint proceedings, was not intended as a rigid requirement that all the
rules in each particular district should apply. As it appears in Section 10(b) this
provision reads that such rules will be followed "so far as practicable." Indeed,
Senator Taft stated during the legislative debates that this phrase "really leaves
it largely to the discretion of the Board and the examiner whether they shall apply
the rules of evidence or not." 93 Daily Cong. Rec. 6676, June 6, 1947. Cf. United
Mine Workers of America, District 31, et at. (L. E. Cleghorn), 95 NLRB 546,
547-549, enfd. 198 F. 2d 389 (C.A. 4), cert. denied 344 U.S. 884. Contrary to the
Minnesota statute and to what appears to be the rule in the United States District
Court for the District of Minnesota, it has been the Board practice to admit testimony
as to conversations with a decedent whether or not the witness testifying to the
conversation is interested in the result. Sam Wallick, et at., d/b/a Wallick &
Schwalm Corp., et at., 95 NLRB 1262, 1263, enfd. 198 F. 2d 477 (C.A. 3); West
Texas Utilities Company, Inc., 94 NLRB 1638, 1639, enfd. 195 F. 2d 519 (C.A. 5);
The Linde Air Products Company, 86 NLRB 1333, 1336; N. B. Quarles, d/b/a
Quarles Manufacturing Company, et al., 83 NLRB 697, 699, remanded to the Board
on other grounds, 190 F. 2d 82 (C.A. 5); cf. Reynolds Wire Company, 26 NLRB
662, 666, enfd. 121 F. 2d 627 (C.A. 7). Moreover, the Board's practice in admitting
such testimony is in accord with the practice of many jurisdictions. Wigmore,
Evidence, vol. V, §§ 1421, 1455-1456; vol. VI, §§ 1766, 1769-1772 (3d ed. 1940);
see also Fitch v. Chapman, 10 Conn. 8, 11; Mahaska Co. v. Ingalls, 16 Iowa 81,
95-97; Middleton v. Middleton, 31 Iowa 151, 153; Central Rent-a-Car v. Franklin
Mut. Ins. Co., 289 N.W. 261, 262 (Mich.); Osborne v. Purdome, 250 S.W. 2d 159, 163
(Mo.); Prudential Ins. Co. v. Saxe, 134 F. 2d 16, 31 (C.A., D.C.), cert. denied
63 S. Ct. 1033. Finally, in the Quarles case, the Board held that it would adhere
to its policy of admitting testimony as to statements of a decedent, notwithstanding a
State law to the contrary. In that case the Board held, "We do not regard as con-
trolling . the law in the State of Texas which counsel for Respondent says
renders testimony of the type in issue inadmissible in the courts of that State. See
Section 10(b) of the Act." N. B. Quarles, d/b/a Quarles Manufacturing Com-
pany, et al., 83 NLRB 697, 699, footnote 8.
The death of one who would have been among its chief witnesses unquestionably
placed the Respondent Company at a grave disadvantage. On the other hand,
it should be observed that during one of the principal conversations in issue, namely,
that between Moder and Olsen on November 4, 1958, James Bingham, the plant
superintendent, as well as Olsen, was present. Furthermore, according to Moder,
it was Bingham who told him, "You are in a little bit of trouble with the Union .
go downtown and straighten it out . . . The Company did not assert that
Bingham was unavailable, yet he was never called to testify. Under these circum-
stances, and in the light of the cases cited above, the motion of the Respondent
Company to exclude all testimony as to conversations with Olsen is hereby denied.ll
Moreover, I find that the testimony of Moder and Lucht, set out above, was credible
and that it was a substantially accurate account of those conversations.
Foster conceded that he had requested the termination of the two complainants
on his own initiative and in accordance with his responsibilities as the union business
representative. On the other hand, he contended at the hearing that he could not,
of his own initiative, notify the Company that they had paid their initiation fees to
him on November 6. According to Foster, Moder and Lucht had been "suspended
for failure to pay their dues and initiation fees. You could hardly expect them to
go back to work the next day after being suspended for failure to pay them." On
the other hand, there was no evidence that under normal circumstances it was
necessary that an employee who had applied for union membership had to be voted
upon by the membership and formally admitted to the Union before he could report
for work. Indeed, if there had been such a requirement it would have plainly
violated the Act. Daniel Hamm Drayage Company, Inc., 84 NLRB 458, 459, enfd.
11 After the Trial Examiner had ruled similarly on this issue at the hearing, the
Respondent Company offered in evidence an ex parte affidavit which Olsen had given to
a field examiner for the Regional Office on January 24, 1959. The Respondent Union
and the General Counsel, however, objected to its admission on the ground that it was
self-serving, that it had not been taken in an adversary proceeding, and that they would
have no opportunity for cross-examination of the affiant These objections were sus-
tained by the Trial Examiner and the affidavit, marked Respondent Company's Exhibit
No 8 for identification, was placed in the rejected exhibit file
554461-60-vol. 126-56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
185 F. 2d 1020 (C.A. 5); Arthur G. McKee and Company, 94 NLRB 399, 400,
enfd. 196 F. 2d 636. Nevertheless, in this instance, Foster insisted that Moder and
Lucht be cleared by a meeting of the full membership before he would notify the
Company that the Union had no objection to their reemployment. Olsen was ap-
prised of this procedure, at least by Moder and Lucht, and informed the latter that
the Company would be compelled to wait for such clearance before it could rehire
them. In the meantime, the Company promptly filled the vacancies that existed in
its maintenance department. As a result, when Foster finally notified the Company
on about November 17 of the union action taken on November 12, Olsen was in a
position to tell the complainants that their places had been filled and that they could
look for other employment. In view of this course of conduct on the part of the
Company's personnel manager, it is my conclusion that Olsen had reasonable
grounds to believe that the membership of Moder and Lucht in the Union had been
denied or terminated for reasons other than their failure to tender the initiation fees.
Consequently, in terminating these two employees the Company violated Section
8(a)(3) and (1) of the Act. Similarly, the Union, as the moving cause for this
unlawful conduct on the part of the Company, violated Section 8(b)(2) and
8(b)(1)(A). Cf. Technicolor Motion Picture Corporation, 122 NLRB 73.
B. The validity of the union-security provisions in the contract between
the Respondents
The General Counsel alleges, and the Respondents deny, that the current collec-
tive-bargaining agreement between the Respondents contains an illegal union-secunty
clause. This provision is found in article II. It is entitled "Recognition" and reads
as follows:
A. The Employer recognizes the Union as the exclusive representative for
collective bargaining of the employees employed by the Employer, except as to
clerical, technical, supervisory and managerial employees.
B. All employees, except those exempt in Paragraph A, hereinafter classified
who, at the date of the signing of this contract, have been continuously in the
employ of the Employer for thirty (30) days or more shall be members in good
standing while so employed, and all new employees in such classification shall
become members of said Union within thirty (30) days from the date of their
employment, and in the event any employee becomes delinquent in dues, the
Employer shall be given a three (3) day notice thereof.
C. After an employee has been in the employ of the Employer for thirty
(30) days per Paragraph B, the Employer then agrees to deduct for each em-
ployee who has executed an authorization card, the amount of such employee's
union dues from the first week's pay in each month and will promptly remit all
such deductions to the financial secretary of the Union.
D. Within twenty-four (24) hours after being employed all new employees
will be required to report at the Union office.
In view of the Board's decision in Argo Steel Construction Company, 122 NLRB
1077, wherein it held that "The Act legalizes, as a maximum, union-security pro-
visions which require employees to join unions on or after the thirtieth day follow-
ing the beginning of their employment" [emphasis supplied], it would appear that
paragraph B of article II, supra, comes within the proscription of the Act. Cf.
Keystone Coat, Apron & Towel Supply Company, et al., 121 NLRB 880. Counsel
for the parties have discussed the validity of the foregoing provisions of the contract
at great length in their briefs. While, in effect, conceding that the agreement may not
come within an extremely technical construction of the 30-day requirement, the
Respondents contend that, in fact and in practice, no employee has been required
to become a union member and pay dues until after the lapse of 30 days.
On behalf of the Union, Foster testified that substantially the same type of pro-
vision has appeared in all agreements between the Respondents since 1950. On
behalf of the Company, Personnel Manager Kolles testified that no dues are actually
deducted until an employee has worked for at least 30 days and at the end of which
period he notifies the paymaster of the Company for such purpose. The evidence
as to the company practice in hiring new personnel, however, makes it clear that it
is the Company, and not the Union, which secures the dues authorizations from the
new employees. Moreover, these are obtained on the initial date of hire. Mr.
Kolles testified as follows with respect to this practice:
We advise them [the new employees] that we are a union shop, and that as
a condition of employment you will be required to join the Union after thirty
CHUN KING SALES, INC. 867
days of employment. Then, in the course of the interview, we pick up the sheet
and tell them "this is the form authorizing the Company to deduct your union
dues, should you so desire the Company to deduct them. If you do not sign
this form, you will be required to go to the union office each time the dues are
payable. .
Q. Do they sign applications for membership in the Union at the same time?
A. Yes, they do.
Q. The two forms go right together?
A. This is in the packet, and they are explained, "here is your application for
membership, which consist of the union office's record of your personnel
history."
Kolles further testified that under current personnel practices, at the time of his
hiring the employee also authorizes the deduction of the union initiation fee as well
as his dues. During the hearing this witness produced the checkoff authorizations
of all the employees hired during the month of November 1958. Rather Sig-
nificantly, Kolles conceded that over half of these authorizations bore no date at all.
Moreover, the evidence as to Moder and Lucht establishes that, as to some of the
employees, dues were deducted with no authorizations ever having been obtained.ii
Consequently, the evidence as to the manner in which the agreement between the
parties has been administered falls short of proving that, despite the terms of the
contract, new employees were not required to become members or to pay dues
until "on or after the thirtieth day following the beginning of their employment."
Argo Steel Construction Company, supra. In addition, the requirement in para-
graph D of article II, that all new employees must report to the union office within
24 hours after being employed, in itself violates Section 8(a) (3) of the Act since it
tends to exert pressure on the employee to join the union during the 30-day grace
period. Saltsman Construction Co., 123 NLRB 1176. Accordingly, because the
agreement does not conform to the Act in providing a full 30-day period before new
employees are required to become members, because there was no conclusive evi-
dence that in practice the employees were afforded the full 30 days and because the
contract requires that new employees must report to ,the union office within 24 hours
after employment, I find that the union-security provisions of this contract are un-
lawful. The enforcement of an illegal union-security provision is an unfair labor
practice. Red Star Express Lines of Auburn, Inc. v. N.L.R.B., 196 F. 2d 78, 81
(C.A. 2); Local 229, United Textile Workers of America, AFL-CIO (J. Radley
Metzger Co., Inc.), 120 NLRB 1700, 1707; Triboro Carting Corporation, 117
NLRB 775, 780.13 Furthermore, the discharge of an employee pursuant to such
an unlawful clause is violative of the Act. Seaboard Terminal and Refrigeration
Company, 114 NLRB 1391, 1394; Convair, A Division of General Dynamics Cor-
poration, I11 NLRB 1055, 1057, enfd. as mod., 241 F. 2d 695 (C.A. 9). Con-
sequently, on this ground, as well, the discharge of Moder and Lucht violated Sec-
tion 8(a)(3) and (1) and 8(b)(2), on the part of the Company and Union,
respectively.
C. The alleged unlawful support and assistance of the Union of the Company
The General Counsel alleged that the Company also violated Section 8(a) (2) of
the Act by according unlawful assistance to the Retail Clerks. It was, of course,
unlawful and a violation of that section of the Act for the Employer to deduct union
dues from the wages of Lucht and Moder as well as others 14 without a valid authori-
zation from the employees concerned. It was similarly a violation of Section
8(a) (2) for the Company to enforce the invalid union-security provision in the
collective-bargaining agreement with the Union.
The record contains further evidence of unlawful assistance which the Respondent
Company accorded the Union. The evidence as to the hiring procedure has been
discussed supra. From this it is clear that whenever a new employee is hired, he is
12 In addition to the foregoing, Louis Lucht, another employee, testified that for
2' years prior to -November 1958, union dues had been deducted from his wages, despite
the fact that he had never signed a checkoff authorization. Lucht's testimony was
credible and undenied
13 Since the execution of the 1956 agreement took place prior to a date 6 months before
the filing of the charges here, no finding of a violation is made based upon the mere
execution of the agreement.
11 E g, Louis Lucht.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given a union application and a checkoff authorization to sign. According to Per-
sonnel Manager Kolles, "They are signed with an explanation of what it is on the
original date of hiring, so no employee, at the present time, gets into the plant without
having signed an authorization form unless he specifically states that he wants to
pay his own union dues " That this practice obviously works to the great advantage
of the Union is not only apparent on its face, it is confirmed in the testimony of Mr.
Kolles who stated that during the period from August 1958 until the date of the
hearing only one new employee had refused to sign the union application form at
the time of hire. In operation this procedure plainly tends to give the prospective
employee the impression that he must sign an application for union membership and
a dues checkoff authorization as a condition of securing employment. In so doing,
the Company rendered the union assistance which the Act forbids. Accordingly,
and in view of the foregoing findings, it is my conclusion that the Company violated
Section 8(a) (2) of the Act. Dixie Bedding Mfg. Co v. N L.R.B., 268 F. 2d 901
(C.A. 5), Coast Aluminum Company, 120 NLRB 1326, 1327. Cf Saltsman Con-
struction Co., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Company 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 of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, I shall
recommend that they cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act. Further, in determining the scope of
the recommended order it is appropriate to note that in another case involving these
same Respondents the Board found that the Company had violated Section 8(a)(3)
and (1) and the Union Section 8(b)(2) and (1)(A) of the Act. Chun King Sales,
Inc, 110 NLRB 1151
Since I have found that the Respondent Company, at the behest of the Respondent
Union, discriminatorily discharged Leslie Moder and Charles H. Lucht on November
4, 1958, I will recommend that the Company offer Moder and Lucht immediate and
full reinstatement without prejudice to their seniority or other rights and privileges.
It is my further recommendation that the Respondents, jointly and severally, make
these employees whole for any loss of pay suffered by reason of the discrimination
against them, by payment to them of a sum of money equal to that which they
normally would have earned from the aforesaid date of their discharge to the date
of the Company's offer of reinstatement, less net earnings during said period; pro-
vided, however, that if, before such offer of reinstatement, the Respondent Union
notifies the Respondent Company, in writing, that it has no objection to the rein-
statement of Moder and Lucht pursuant to the terms of this recommended order,
the Respondent Union shall not thereafter be liable for any backpay accruing after
5 days from the giving of such notice.15 The backpay provided for herein shall be
computed in accordance with the formula stated in F. W. Woolworth Company, 90
NLRB 289.
Since I have found that the Respondent Company, in violation of Section 8(a) (2)
of the Act, unlawfully assisted and contributed support to the Respondent Union,
the effects of this interference, as well as the Company's continued recognition of
that union as the bargaining representative of its employees, constitute a continuing
obstacle to the free exercise by its employees of their right to self-organization and
to bargain collectively through representatives of their own choosing. Further,
'b On November 17, 1958, the Union notified the Company that it had no objection to
the Complainants' "reapplying for work " It did not, however, supply a copy of this
letter to either Moder or Lucht The Board has held that for a union to terminate its
backpay liability it is necessary "unmistakably to declare to the discriminatees, in action
or statement, that its discriminatory treatment would cease . . ." Psnkerton's Nattionai
Detective Agency, Inc, 90 NLRB 205, 212, enfd 202 F 2d 230 (C.A 9) Judged both
by itself and in the context of the discriminatory conduct in which the Union engaged
at the time it was mailed to the Company, it Is my conclusion that this letter was
inadequate to terminate the Union's backpay liability
CHUN KING SALES, INC. 869
having found that the Company violated Section 8(a) (3) and (1) by enforcing an
agreement containing an unlawful union-security provision, I will recommend that
the Company withdraw recognition from the Respondent Union as the representa-
tive of its employees and that the Company cease giving effect to the agreement dated
May 22, 1956, and all subsequent agreements with that Union, unless and until
the Respondent Union shall have demonstrated its exclusive majority representative
status pursuant to a Board-conducted election among the employees of the Company.
Bowman Transportation, Inc., 120 NLRB 1147, 1151. Nothing in this recommenda-
tion should be taken, however, to require the Company to vary those wage, hour,
and other substantive features of its relations with the employees themselves, if any,
which the latter has established in the performance of this agreement.
In their brief, counsel for the General Counsel request that the Brown-Olds
remedy (United Association of Journeymen & Apprentices of Plumbing & Pipe-
fitting Industry of the United States and Canada, Local 231, AFL-CIO (J. S. Brown-
E. F. Olds Plumbing & Heating Corporation) ), 115 NLRB 594, be applied or that,
in the alternative, the Respondent be ordered to refund all dues collected from
employees subsequent to a date 6 months prior to the filing of the charges, unless
the Respondents can prove that a valid checkoff authorization form signed by the
employee was in force during the months for which dues were deducted. The latter
proposal would seem more appropriate if the only violation involved herein had
been the union-security clause found in the contract of May 22, 1956. In fact,
however, it does not stand alone. The presence of this clause in the collective-
bargaining agreement must be considered in the light of the company practice
whereby new employees are supplied on the date of hire with union application
forms and checkoff authorizations in a setting that inevitably tends to coerce them
into signing these documents on the first day of employment. In the face of this
practice the statutory guarantee of a 30-day grace period for the new employees
becomes very illusory indeed. In Saltsman Construction Company, supra, the
Board held that a somewhat similar practice on the part of an employer warranted
the imposition of the Brown-Olds remedy without any exceptions even for those
employees who were members of the union there involved prior to their employment
by Saltsman. Consequently, in the present case, and in view of the foregoing decision
of the Board, I shall recommend that the Respondents be ordered, jointly and sev-
erally, to refund to the employees of the Respondent Company all moneys checked
off from their wages under the collective-bargaining agreement of May 22, 1956,
and any supplement thereto. The liability of the Respondents for such reimburse-
ment, however, shall not extend beyond the period beginning 6 months prior to the
filing and service of the charges herein.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce and the Respondent Union
is a labor organization, all within the meaning of the Act.
2. By contributing support and assistance to the Union, the Company has engaged
in unfair labor practices within the meaning of Section 8(a)^(2) of the Act.
3. By discriminating with respect to the hire and tenure of employees, thereby
encouraging membership in the Union, the Company has engaged in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act, the Company has engaged in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. By enforcing a contract containing unlawful union-security provisions, the
Company has violated Section 8(a)(3) of the Act and the Union, by causing the
Company to discriminate with respect to the hire and tenure of employees in
violation of Section 8(a)(3), has engaged in unfair labor practices within the
meaning of Section 8(b)i(2) of the Act.
6 By restraining and coercing employees in the exercise of the rights guaranteed
by Section 7 of the Act, the Union has engaged in unfair labor practices within
the meaning of Section 8(b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]