Colgate-Palmolive Co.

National Labor Relations Board - Board Decisions

Sep 27, 1962

138 N.L.R.B. 1037 (N.L.R.B. 1962)

COLGATE-PALMOLIVE COMPANY 1037
I certainly have no desire to frustrate the employees' right to self-
organization. But that right must be accommodated by the Board
to the prohibition in Section 9(c) (5) of the Act that, in deciding the
unit appropriate for the purposes of collective bargaining, "the
extent to which the employees have organized shall not be controlling."
In short, what the present change signifies, in my opinion, is that the
union's extent of organization has now become, and will be, a decisive
factor in determining the appropriate unit for retail store operations .9
Y Quaioty Food Markets, Inc., 126 NLRB 349, at page 351 See also the following pre-
Taft-Hartley cases in which the Board relied on extent of organization : First National
Stores, Inc., 26 NLRB 1275 , at 1279-1280 ; 55 NLRB 1346 , at 1347-1348; 56 NLRB 1870,
at 1872-1873; and 63 NLRB 138 , at 139-142.
Colgate-Palmolive Company and Phyllis Boyle
International Longshoremen 's & Warehousemen 's Union , Local 6
and Phyllis Boyle. Cases Nos. 20-CA-2116 and 20-CB-866.
September 27, 1962
DECISION AND ORDER
On January 9, 1962, Trial Examiner James R. Hemingway 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 attached
Intermediate Report. Thereafter, the Respondents 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, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner to the extent consistent herewith.
On June 12, 1961,' Phyllis Boyle became delinquent as to her May
dues. On June 24, the Union sent her a warning notice stating that
the deadline for payment of the amount in arrears was July 12, and
urging her to "straighten out this matter immediately." On June 27,
in accord with established practice,2 the Respondent Union sent
to the Respondent Company a letter containing a list of members
(including Boyle) whose dues were delinquent for the month of
May and advised the Respondent Company that their memberships
would be terminated unless the subject dues were paid by July 12.
1 All dates refer to 1961.
2 The union-shop contract and the practices of the Union and Company thereunder are
fully described In the Intermediate Report and will not be repeated here
138 NLRB No. 108.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A copy of the warning notice which the Respondent Union had already
sent to Boyle was also attached.
Subsequently , on July 3, the Respondent Company sent a letter to
Boyle and the other employees who were also delinquent in their
union dues , advising them if they ceased to be members in good stand-
ing because of their failure to pay the subject dues by 5 p.m., on
July 12, and the Union notified the Company of this fact , the Company
was required by the provisions of the contract to terminate their
employment . The letter also stated that such termination would
occur "unless you are able to furnish proof that you have tendered
your dues to the Union prior to such deadline." Boyle failed to pay
the dues by 5 p.m., July 12, the deadline.
On July 13, the Union, by letter, notified both Boyle and the Re-
spondent Company that Boyle had failed to maintain her union mem-
bership because of nonpayment of dues, and requested the Company
to discharge Boyle. Boyle received this letter on July 15. Boyle
then went to the Respondent Union 's office, showed a clerk the notice
she had received , and asked , "What am I supposed to do? I don't
want to lose my job." She was told to pay her dues . Thereupon,
Boyle paid the amount in arrears plus the applicable fines. Boyle
was given a receipt for her payments . She was also given a notice
to appear before the Union's grievance committee on July 25, the
charge being "Failure to pay May dues by deadline."
The production facilities of the plant were closed because of the
regular vacation shutdown between July 10 and 24. On the latter
date, Boyle reported for work but did not find her timecard in the
rack. She then arranged to see the Respondent Company's employee
relations supervisor and showed him the receipt from the Union indi-
cating that she had paid her dues on July 17. The supervisor, how-
ever, told her , "I don't think I can clear you back in on the strength
of this." Instead he suggested that she see Respondent Union's busi-
ness agent and return with a letter from the Respondent Union
countermanding its request for Boyle's discharge.
On July 25 , Boyle attended the Respondent Union 's grievance
committee hearing. She failed, however , in her request for reinstate-
ment as a member.
Boyle was discharged on July 27 , 3 days after her interview with
the employee relations supervisor.
Finding that the Board 's holdings in General Motors Corporation,
Packard Electric Division , 134 NLRB 1107 , and Acme Fast Freight,
Inc., 134 NLRB 1131, were not applicable where a union accepted
tender of delinquent dues after a request for discharge but before the
discharge occurs, the Trial Examiner concluded that Respondents had
violated the Act as alleged. The Respondents except, contending, in
COLGATE-PALMOLIVE COMPANY 1039
part, that the Union's acceptance of Boyle's dues is immaterial in the
application of General Motors and Acme principle. We do not agree
with Respondents' contentions.
In General Motors and Acme the Board held that a mere tender
of dues and fees after a request for the delinquent member's discharge
under a valid union-security contract will not prevent a lawful dis-
charge. Here, however, when Boyle offered the Respondent Union
the delinquent dues and fines 3 the Union had been demanding, Re-
spondent Union accepted and retained said dues and fines. Thus, this
case not like General Motors and Acme, but is like International Wood-
workers of America, AFL-CIO, Local Union 13-433 (Ralph L. Smith
Lumber Company), 119 NLRB 1681, and similar cases,' where the
Board has long held that once a union accepts the tender of delinquent
dues after it has requested discharge for such delinquency but before
actual discharge, the union thereby waives all rights to continue to
assert dues delinquency as a ground for discharge. The Board's
holding in General Motors and Acme did not overrule such cases.
Nor do the cases hold, as our dissenting colleagues would herein hold,
that a union, having obtained a valid union-security provision in its
contract, may demand an employee's dues payment, and once having
received it, may then demand the employee's job as well.'
Accordingly, we hold that as Respondent Union accepted and re-
tained Boyle's tender of delinquent dues and fines prior to Boyle's
discharge, Respondent Union thereby waived its right to continue
to request her discharge for failure to comply with the terms of the
union-security agreement, and by continuing to do so violated Section
8(b) (2) and (1) (A) of the Act.
With respect to Respondent Company, it is clear that its employee
relations supervisor was aware that the Respondent Union had ac-
cepted Boyle's delinquent dues. Nevertheless, he discharged her as
requested by Respondent Union. Under these circumstances, we find
that Respondent Company violated Section 8(a) (1) and (3).
ORDER
Upon the entire record in this proceeding, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that:
8 On July 17, Boyle paid $11 for her May and June dues plus two fines of 50 cents each
levied against her for late payment of her monthly dues.
'See also F . J. Burns Draying, Inc., 129 NLRB 252; Producers Transport, Inc, 125
NLRB 1056, 1075.
8To so find , in our view, would not "zealously protect the legitimate rights of em-
ployees from disparate or unfair treatment in the application of union-shop agreements,"
which our dissenting colleagues state should be of concern to the Board.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Respondent Colgate-Palmolive Company, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in International Longshoremen's &
Warehousemen's Union, Local 6, or in any other labor organization
of its employees, by discharging or in any other manner discriminating
against any employee in regard to hire or tenure of employment or
any term or condition of employment except as authorized in Section
8 (a) (3) of the Act.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act,- except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a) (3) of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon application by Phyllis Boyle, not later than 5 days after
the conclusion of the strike if said strike has not yet ended,6 reinstate
her to her former or substantially equivalent position, without prej-
udice to her seniority or other rights and privileges, and jointly and
severally with Respondent Union, make her whole for any loss of pay
as a result of the discrimination against her, by paying her a sum of
money equal to that which she would normally have earned as wages
from July 24, 1961, the date of the termination of her employment, to
the date of her reinstatement, but excluding the period between the
date of her receipt of the Company's October 2, 1961, letter, offering
her reinstatement, and the date of her application for reinstatement
or the date 5 days after the end of the strike should she fail to make
application. The loss of earnings shall be computed in accordance
with the formula set forth in F. TV. Woolworth Company, 90 NLRB
289.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination or copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary or useful to an analysis of the amount of
backpay due and the right of reinstatement under the terms of this
Order.
(c) Post at its place of business in Berkeley, California, copies of
the notices attached marked "Appendix A."' Copies of said notice,
6 The record shows that the Union called a strike on September 15, 1961 , which was
still in progress at the time of the hearing herein.
T 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."
COLGATE-PALMOLIVE COMPANY 1041
to be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by the Respondent Company, be posted
immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such notices are not altered, defaced, or
covered by any other material.
(d) Post at the same place and under the same conditions as set
forth in (c) above, as soon as they are forwarded by the Regional
Director, copies of Respondent Union's notice attached marked
"Appendix B."
(e) Mail to the Regional Director for the Twentieth Region signed
copies of the attached notice marked "Appendix All for posting at
the Respondent Union, Local 6's business office and hall at Oakland,
California.
(f) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
B. Respondent International Longshoremen's & Warehousemen's
Union, Local 6, its officers, agents, representatives, successors and
assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause Respondent Company to dis-
criminate against any of its employees in violation of Section 8 (a) (3)
of the Act.
(b) In any like or related manner restraining or coercing employ-
ees in the exercise of rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with Respondent Company make whole
Phyllis Boyle for any loss of pay suffered as a result of the discrimina-
tion against her by paying her a sum of money equal to that which she
would have earned between July 24, 1961, the date of her termination
of employment, and the date it complies with subsection (b) here-
under. Loss of earnings shall be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB 289.
(b) Notify Phyllis Boyle and the Company, in writing, that it with-
draws its objection to Boyle's employment and requests the Company
to offer her reinstatement.
(c) Post copies of the notice attached marked "Appendix B." 8
8 See footnote 7, supra
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice , to be furnished by the Regional Director for the
Twentieth Region, shall , after being duly signed by the representative
of the Union , be posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter , in conspicuous
places, including its business office at Oakland, California , and all
places where notices to members are customarily posted. Reasonable
steps shall be taken to insure that such 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 they are forwarded by the Regional
Director , copies of the Respondent Company's attached notice marked
"Appendix A."
(e) Mail to the Regional Director for the Twentieth Region, signed
copies of the attached notice marked "Appendix B," for posting at
Respondent Company's place of business at Berkeley , California.
(f) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBER FANNING, concurring :
I agree with Members Rodgers and Leedom that, on the facts of
this case , the Union lost its right to insist upon Boyle's discharge when
it accepted and retained her late tender of dues prior to her discharge.
I do so for the following reasons :
Under the practice of the parties to the contract , employees who
have been discharged for dues delinquency are given the right to
appear before the Union 's grievance committee to seek restoration to
membership in the Union , provided they eliminate the dues delin-
quency upon which the discharge request was based. If the grievance
committe restores them to membership, the Union withdraws the dis-
charge request , and the Employer restores the employee to his job.
If membership is not restored , the discharge stands, even though the
employee's dues are retained. Normally, as indicated, this procedure
takes place after the employee 's discharge . In Boyle's case , however,
due to circumstances which are largely fortuitous in nature, the
Union's acceptance of her clues payments and her appearance before
the grievance committee occurred before her actual discharge by the
Employer. The grievance committee refused to restore her to mem-
bership; the Union refused to withdraw its discharge request; and
Boyle was discharged , even though the Union had accepted and re-
tained her dues payment.
It is quite obvious that under the above practice , employees' job
rights do not turn simply on payment of dues, but on maintenance of
membership in good standing in the Union. Our dissenting col-
leagues look upon this practice simply as a union requirement of the
"payment of back dues for past services rendered as a condition prece-
COLGATE-PALMOLIVE COMPANY 1043
dent to giving an employee the opportunity to seek reinstatement."
If they mean reinstatement merely to union membership, the record
does not support them, for it is clear that upon gaining such reinstate-
ment job restoration follows, but if reinstatement to membership is
not achieved employment is denied. Because the payment of back
dues appears clearly to be a condition precedent to seeking reinstate-
ment to membership, as a condition of regaining or continuing em-
ployment with the Employer, I find that under the practice of the
parties, the union-security clause in the contract has been adminis-
tered to require, not only the payment of dues, but also the maintenance
of membership in good standing in the Union as a condition of
employment.
Recently, we have ruled that a union may lawfully refuse to accept
a late tender of dues made after its proper request for the employee's
discharge, and insist, instead, upon the employee's discharge .9 How-
ever, neither the letter or the spirit of those decisions justifies a
union's acceptance and retention of such late tender, and insistence
upon the discharge as well. The Act permits a union, which has
obtained a valid union-security provision in its contract, to demand
either an employee's dues payment or his job. It does not give it the
right to demand both.
CHAIRMAN MOCULLOCH and MEMBER BROWN, dissenting :
Phyllis Boyle, the dischargee in question, was chronically delin-
quent in paying dues under Respondents' union-shop agreement. The
record discloses, for example, that she was 9 months in arrears at one
period in 1953, and that she had been regularly in arrears for several
years immediately preceding her discharge.
The instant proceeding arose from Boyle's failure to pay her May
1961 dues, which were payable as of May 1. Although its constitution
permitted the Union to demand discharge for nonpayment of dues
10 days following the end of the month for which the dues were pay-
able, the Union adopted the lenient practice of officially declaring dues
payers "delinquent" on that date and then granting delinquent mem-
bers an additional 30 days to make payment. Thus, prior to dis-
charge, union members were uniformly given a total of 71 or 72 days
in which to pay dues-counting from the beginning of the month for
which dues first become payable.
In the light of this customary procedure, Boyle's May dues were
payable on May 1, she became "officially" delinquent on June 12, and
on July 12 she was subject to expulsion from the Union and to dis-
charge from employment under the contract. It is uncontroverted
that Boyle and all other delinquent dues payers for the month of May
D General Motors Corporation, Packard Electrsc Division, 134 NLRB 1107; Acme Fast
Freight, Inc., 134 NLRB 1131.
662353-63-vol. 13 8-6 7
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were notified in writing to this effect by the Union on June 24 and by
the Employer on July 3. Boyle did nothing about these warning
notices, whereupon on July 13 the Union requested the Employer to
discharge her under the union-security provision of their contract.
The Union also forwarded a copy of this request to Boyle. No claim
is made that this requested discharge action was not fully warranted
under the contract or that it was in disregard of any of Boyle's rights
either under the contract or under the Act, or that she was treated
any differently from other delinquent employees similarly situated.
Thus, there would have been no question concerning the lawfulness
of Boyle's discharge had the Company promptly acted on the Union's
request on July 13. Because of a fortuitous circumstance." however,
Boyle was not actually discharged until 2 weeks later (July 27). We
disagree with our colleagues' decision that intervening events justify
a finding that Boyle's discharge on July 27 was unlawful.
It is undisputed that on July 17 Boyle went to the union office and
tendered $12 for delinquent dues to a female clerk in the union office;
that the clerk accepted the money 11 and gave Boyle a "temporary"
receipt but, in accordance with customary practice in the circum-
stances, did not make an entry of timely payment in Boyle's dues book ;
that Boyle was not told that termination of her membership was there-
by rescinded ; and that, in fact, the clerk gave Boyle a written notice to
appear before the Union's grievance committee on July 25 with re-
spect to her May dues delinquency.'2
On the basis of the clerk's mentioned acceptance of delinquent dues
before Boyle's actual discharge, our colleagues conclude that the Union
waived its right to assert her delinquency as ground for discharge
under the operative union-shop agreement. In support of their con-
clusion, our colleagues cite International Woodworkers of America,
AFL-CIO, Local Union 13-433 (Ralph L. Smith Lumber Company);
F. J. Burns Draying, Inc.; and Producers Transport, Inc., supra.
However these cases scarcely establish the broad proposition that mere
acceptance of a belated tender prior to discharge is itself sufficient to
constitute a waiver. For there was a showing of disparate or other
discriminatory treatment against the particular delinquent in each of
these cases.13 No such evidence is present here.
10 The production facilities of the plant were closed because of the regular summer vaca-
tion shutdown from July 10 to 24
"The Union has retained the money to date.
12 This was standard procedure under the union constitution in order to give a "dropped"
member the opportunity to gain reinstatement by explaining any "mitigating circum-
stances" for dues delinquency.
13 In Producers Transport, Inc., the union involved revoked Pool 's checkoff authoriza-
tion without Pool's request and it never clearly informed Pool of the necessary steps to
remedy his consequent delinquency . Pool also had relied on advice given him by the
union 's business agent and he also was not afforded the same opportunity for obtaining
reinstatement as was customarily afforded other delinquent employees.
In International Woodworkers of America , AFL-CIO, Local Union 13-433 ( Ralph L.
Smith Lumber Company ), employee Hatfield was not afforded the same opportunity to
COLGATE-PALMOLIVE COMPANY 1045
We do not believe that the Board should adopt an inflexible rule
that a union is necessarily deemed to waive its conceded right to
assert dues delinquency as a ground for discharge under a lawful
union-shop agreement whenever, regardless of circumstances, it ac-
cepts a belated tender. Rather, we believe that a proper application
of the waiver doctrine," whether in the area of labor-management
relations or in its more familiar surroundings of commercial and
business relations, requires that each case be analyzed in the frame-
work of its own particular set of facts to determine whether the neces-
sary elements of intent and reliance are present.
It is clear that the Respondent Union did not intend its described
acceptance of Boyle's tender to effect her restoration to good standing
under the contract. It also is clear that Boyle did not believe other-
wise and could not possibly have relied on such acceptance as curing
her delinquent status; her own testimony shows that she fully under-
stood that late payment of dues did not assure reinstatement to
membership in good standing.'5 We can hardly find a waiver under
these circumstances and thus there is no basis for holding the appli-
cation of the contract to Boyle to be unlawful.
We believe, moreover, that this result comports with the practical
needs of industrial relations. It is clear that a union may enforce it
valid union-security clause and lawfully cause an employer to dis-
charge an employee on the very first day he becomes delinquent in
dues payments. Obviously, this could produce a profusion of in-
equitable results. In order to avert such a possibility, we believe
that a union should be encouraged to be lenient in cases where, in the
exercise of its discretion after due consideration, it finds ameliorating
circumstances. The Respondent Union's grievance committee pro-
vides just such a forum for this concept to come into play. But, in
our opinion, resort to that forum will be needlessly discouraged if, as
required by our colleagues' decision, a union is forced to choose be-
tween either of two extremes-refusing the tender and requesting a
obtain union membership as was afforded two other employees. The language of the
Court of Appeals for the Ninth Circuit indicates clearly that elements of discrimination
and lack of fair treatment were involved (264 F. 2d 649, 656-657).
In F. J. Burns Draping, Inc, the union admittedly accepted employee Fabian's initia-
tion fee and dues and formally notified him that he was reinstated to membership in
good standing. Moreover, Fabian reasonably relied upon this official notification and the
Board found that, under the circumstances , he was entitled to do so.
14 "Waiver is the voluntary surrender or relinquishment of some known right, benefit,
or advantage ; estoppel is the inhibition to assert it Waiver is voluntary and inten-
tional. A waiver is implied where one party has pursued such a course of conduct with
reference to the other party as to evidence an intention to waive his rights . . . pro-
vided that the other party concerned has been induced by such conduct to act upon the
belief that there has been a waiver, and has incurred trouble or expense thereby."
Black's Law Dictionary.
151n accordance with the Union's normal procedure, Boyle did appear before a griev-
ance committee in order to obtain reinstatement. However, she was not reinstated to
membership in good standing for reasons which do not appear in this record. There is
no evidence to indicate, nor is it even claimed , that Boyle did not receive a fair and
impartial hearing before the grievance committee.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge or accepting the dues tendered and therefore forfeiting all
rights to request a lawful discharge. Does not room exist for a
middle ground ? We believe it does and that a union may require the
payment of back dues for past services rendered as a condition prece-
dent to giving an employee the opportunity to seek reinstatement.
Finally, the severity of our colleagues ' decision is further accentu-
ated when this case is viewed through the Employer 's eyes. The
record is devoid of any evidence that the Union sought Boyle's dis-
charge for reasons other than dues delinquency or that the Employer
had any information prior to its receipt of the June 27 letter which
would have even faintly suggested the existence of any other reason.
Likewise , while some question was raised with respect to Boyle's status
on July 24, the Employer took reasonable steps to have Boyle clarify
the matter . Indeed, if the Employer itself had contacted the Union
on July 25 , it would have been informed that Boyle's membership had
been terminated for dues delinquency and that the temporary receipt
did not indicate otherwise . Thus the Employer discharged Boyle
solely because of her dues delinquency , as it was required to do by the
terms of its valid union -security agreement.
We agree that the Board must zealously protect the legitimate rights
of employees from disparate or unfair treatment in the application
of union-shop agreements . On the other hand, we also must not
penalize unions and employers in asserting their respective rights and
performing their respective obligations under such valid agreements.
It is unfortunate that an employee of Boyle's long standing should
have ignored her other responsibilities to maintain her standing under
the contract . However, she was given fair and equal treatment by
both the Union and the Employer , and we cannot find that their role
in her discharge was unlawful.
We would accordingly dismiss the complaint.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that :
WE WILL NOT encourage membership in International Long-
shoremen 's & Warehousemen's Union, Local 6, or any other labor
organization , by discharging or in any other manner discriminat-
ing against any employee in regard to hire or tenure of employ-
ment or any term or condition of employment except as authorized
in Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain , or coerce our employees in the exercise of the rights guar-
COLGATE-PALMOLIVE COMPANY 1047
anteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
Upon application by Phyllis Boyle not later than 5 days after
the termination of the strike which began on September 15, 1961,
we will give full reinstatement to said Boyle to her former or
substantially equivalent position, without prejudice to her se-
niority or other rights and privileges, and will jointly and sever-
ally with the above-named labor organization make her whole for
any loss of pay suffered as a result of our discrimination against
her.
All of 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 made in conformity with Section 8(a) (3)
of the Act.
COLGATE-PALMOLIVE COOMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of her right to full rein-
statement upon application in accordance with the Selective Service
Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 703 Market Building, 830 Market Street, San Francisco 2, Cali-
fornia, Telephone Number, Yukon 6-3500, if they have any question
concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause or attempt to cause Colgate-Palmolive Com-
pany to discriminate against Phyllis Boyle, or any other em-
ployee, in violation of Section 8(a) (3) of the Act, as amended.
WE WILL notify Colgate-Palmolive Company and Phyllis
Boyle, in writing, that we withdraw our objections to her employ-
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment and request her reinstatement to her former or substantially
equivalent position.
WE WILL (jointly and severally with the above-named Com-
pany) make Phyllis Boyle whole for any loss of pay suffered be-
cause of the discrimination against her.
W r, WILL NOT in any like or related manner restrain or coerce
our employees 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 condition of employment as authorized in Section 8(a) (3) of
the Act, as amended.
INTERNATIONAL LONGSHOREMEN'S &
WAREHOUSEMEN'S UNION, LOCAL 6,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of her right to full rein-
statement upon application in accordance with the Selective Service
Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Members may communicate directly with the Board's Regional
Office, 703 Market Building, 830 Market Street, San Francisco 2, Cali-
fornia, Telephone Number, Yukon 6-3500, if they have any question
concerning this notice or compliance with its provision.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case involves an alleged violation of Section 8(a)(3) and Section 8(b)(2)
of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein
called the Act, through the discharge of Phyllis Boyle by the Respondent Colgate-
Palmolive Company, herein called the Company, at the request of International
Longshoremen's & Warehousemen's Union, Local 6, herein called the Union, but
jointly with the Company called the Respondents , because of loss of membership
in the Union for failure to pay dues on time, while the Respondents had a union-shop
contract in effect. (Charge in Case No. 20-CB-866, filed July 31, 1961; charge
in Case No. 20-CA-2116, filed August 30, 1961; complaint issued October 4, 1961.)
The hearing was held before Trial Examiner James R. Hemingway on November
3, 1961, and briefs were filed by the parties on November 27, 1961. Upon the
evidence presented at the hearing , my observation of the witnesses, and the entire
record in the case, I make the following:
FINDING OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is, and has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the State of Delaware.
At all times material herein the Company has engaged in the manufacture of
detergents and toilet articles at its plants in Berkeley, California, and in other cities
COLGATE-PALMOLIVE COMPANY 1049
throughout the United States. Its plant at Berkeley, California, is the only plant
involved in this proceeding.
During 1960, the Company, in the course and conduct of its business operations,
sold and distributed at its Berkeley, California, plant products valued in excess of
$50,000 which were shipped from said plant directly to States of the United States
other than the State of California.
The Company is now, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
No issue of jurisdiction is raised. I find that the Board has jurisdiction and
that it will effectuate the policies of the Act to assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Company. At all times material herein it has been the collective -bargaining agent
of the Company's employees in a particular unit.
III. THE UNFAIR LABOR PRACTICES
A. The union-shop contract and the practices of the Union and the
Company thereunder
At all times material hereto, the Union and the Company had a contract which
contained a union-shop clause by the provisions of which employee members were
required to remain members in good standing of the Union.' A member in good
standing was defined therein as one who is not in default in payment of the periodic
dues uniformly required by the Union as a condition of retaining membership in the
Union.
Under the Union's constitution, dues are payable in the current month. They
become delinquent on the tenth day of the following (second) month and, according
to the Union's practices, a 50-cent fine must then be paid with such late dues. If
the delinquent dues are not paid by the 20th or 25th of the second month, it is the
Union's practice to send a notice to the delinquent member stating that he will be
dropped from membership by the 12th (or if that falls on a Saturday or Sunday, the
date of the next workday) of the following month.2 About the same time of the
month, the Union sends a list of delinquent members to the Company, adding a
statement that their membership will be terminated unless their dues are paid by the
12th (13th or 14th as the case may be) of the following month. Upon receipt of
such notice from the Union, the Respondent sends to each of the employees listed
thereon as delinquent in dues a form letter telling the employee of receipt of a notice
from the Union that he is delinquent in payment of dues and that if those dues
are not paid by 5 p.m. on the date given in the notice he will cease to be a member
in good standing with the Union. The form letter of the Company then quotes from
the collective-bargaining contract and informs the employee that if the Company
receives an official notice from the Union after 5 p in. on the stated deadline that
he is no longer a member in good standing in the Union because of failure to pay
dues, the Company will be required to terminate his employment unless he is able
to furnish proof that he has tendered his dues before such deadline. Between the
1st and the 12th of the next month, the Union sends the Company another letter
showing the names of members who are still delinquent. If the dues of a delinquent
member are not paid by 5 p.m on the deadline date, the Union sends a letter to the
Company, with a copy thereof to the employee member, saying that the member
has been dropped from membership and requesting his termination by the Company.
'The complaint alleges and the answers admit (or, in the case of the Union, fails to
deny) the existence of a union-shop clause. The contract is not In evidence The
language of only the maintenance-of-membership provision Is shown by the evidence.
2 According to the Union's constitution, "a member who is delinquent in regular and
special dues for the preceding month and fails to pay such dues within the first ten days
of the current month, shall, upon the expiration of such ten days grace period, auto-
matically be dropped from the rolls. . " This would appear to give the Union the
right to demand discharge for nonpayment of dues which are late after only 10 days
following end of the month for which the dues were payable. In practice, however, the
Union gave 72 days in which to pay dues , counting from the beginning of the month for
which dues were payable. Of course, after the 70th day, another month's dues would
have become delinquent also. Thus, if a member were dropped for dues delinquency, he
would be delinquent in the payment of 2 months' dues but he is dropped only for non-
payment of the first of the two.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company pulls that employee 's card and tells the employee to go to the Union
to see if he can straighten out his difficulty and says that, if he is unable to do so,
he may not work any longer.
If a member , dropped for nonpayment of dues, pays his delinquent dues, the
Union issues a temporary receipt but does not make any entry in the member's dues
book of such payment. If the dropped member signifies a desire to do so, he may,
under the Union 's constitution , appeal his case to the grievance committee "in the
event there are mitigating circumstances ." If the grievance committee decides
favorably , the dropped member is reinstated to membership and the Union sends
a letter to the Company revoking the notice of nonmembership and request for
discharge .3
B. Discharge of Phyllis Boyle
Phyllis Boyle worked for the Respondent from 1942 to July 1961 . During that
time he had, until the incident in 1961 which resulted in her discharge, been a
member of the Union. She was frequently late in the payment of her dues, and for
the last several years she had regularly paid her dues on the deadline date along
with the 50-cent-a-month fine for late payment of dues. Until the incident here-
inafter related, however, she had always succeeded in paying her dues before she
would have been dropped from membership.
The General Counsel adduced evidence that , in 1946, before passage of the Taft-
Hartley Act, Boyle had paid as much as 3 months or more late . At that time the
Union did not terminate membership for nonpayment of dues unless they were in
arears from 4 to 6 months . The practice then was for the steward to notify the
Company and the Company would advise the employee to pay his dues. The
employee would do so and would then return to the job. As late as 1953, Boyle
had been delinquent in dues for the months of February to September ( all paid on
October 16 , 1953 ) and the Union , so far as appears , did not request her discharge.
Paul Heide , the Union 's business agent , testified that the Union was lenient at that
time because of a strike and that it was not until after that time that the Union
adopted the uniform practice which was being followed in 1961. The exact date
when the present procedure was set up was not shown , but from some of the evidence,
I infer that it had been in effect for at least 2 or 3 years.
On June 12 , 1961, Boyle became delinquent in her May (1961 ) dues. On June
24, 1961, the Union sent to Boyle a notice that she was delinquent in her May dues
and that the deadline for payment thereof was July 12, 1961. This notice contained
the statement:
On the 60th day your membership in the union and your job will be terminated
if you are still delinquent under the terms of the contract. We urge that you
straighten out this matter immediately.
On June 27 , 1961, the Union sent to the Company a list of delinquent members
together with copies of notices sent to delinquent members. Following its
receipt of the notice from the Union, the Company sent to Boyle a copy of the form
letter hereinbefore described . Boyle received both communications in due course
of mail but failed to pay her May dues by 5 p .m. on July 12 , the deadline On
July 13, 1961, the Union sent to the Company a form letter notifying it that Boyle
had failed to maintain membership because of nonpayment of dues and requesting
her discharge pursuant to the provisions of the current contract . The last paragraph
of this form letter stated that if the employee was not presently working , he should
not be permitted to return to work. A copy of this letter was sent to Boyle by
registered mail Boyle testified that she had received it on Saturday , July 15,
although delivery had been attempted on the 14th when she was not home.
On Monday , July 17 , Boyle went to the Union 's office, referred to the notice she
had received , and asked a girl in the office ( a clerk, I assume ) : "What am I sup-
posed to do? I don't want to lose my job." The girl told her to pay her dues.
Boyle laid $ 12 and her dues book on the counter , $ 11 for her May and June dues
(the latter having become delinquent on July 12) and $1 for the fine for late pay-
ment of 2 months ' dues. The clerk, disregarding Boyle's dues book, took the money
and made out a receipt. In the space for "month paid," the receipt showed June.
3 This procedure apparently is, under the constitution of the Union , optional on the part
of the Union because the constitution provides that reinstatement "shall not be deemed
to affect . any prior discharge . . However, it has become an established prac-
tice If the grievance committee decides adversely to the dropped member, the latter
has a further appeal to the appeals committee , but the decision of the latter affects only
membership The Union apparently does not revoke its letter requesting discharge after
decision by the appeals committee.
COLGATE-PALMOLIVE COMPANY 1051
I infer that the entry "June" indicates the latest month for which dues were paid and
that the entry was not an oversight of the payment of the May dues. After Boyle
had paid her dues, the clerk informed her that she would have to appear before the
Union's grievance committee and then made out Boyle's notice to appear on Tues-
day, July 25, 1961, and gave it to her.
Between July 10 and 24, 1961, all production workers, including Boyle, were on
vacation. When Boyle returned to the Company's plant on July 24, she discovered
that her timecard was not in the rack. She went to see Cecil Carter, the Company's
employee relations supervisor, who had also been on vacation and who had just
arrived at the plant. She told Carter that her card was not in the rack. As she
said this, she saw her card on his desk and she pointed to it. Attached to the card
was a letter, presumably the Union's letter of July 13, requesting Boyle's discharge,
which had arrived during Carter's absence. This was the first time Carter had seen
it. Boyle produced her receipt showing payment of her dues through June. Carter
looked at it and saw the amount of $11 paid on dues, but he apparently did not
notice on it the part that showed for what period the dues were paid, for he testified
that he did not know what period was covered thereby. He told Boyle, "I don't
think I can clear you back in on the strength of this." He did not ask for, and
Boyle did not offer, her dues book, although Carter testified that if she had produced
her dues book showing she was paid up, he would have accepted that and would have
let her work, because he had occasionally had letters from the Union showing that
a member was dropped when, in fact, they had been paid up. Carter advised Boyle
to go to the union hall, to see Heide, the head business agent for the Union, and to
bring back a letter countermanding the Union's notice of Boyle's loss of membership
and request for her discharge. Boyle left and telephoned Heide, who told her she
would have to wait until she had appeared before the grievance committee.
The following day, July 25, the Union's grievance committee decided adversely
to Boyle. The members of that committee told her she could appeal to the appeals
committee and asked if she wished to file to do so. She said she did. However,
this appeal was held up pending the outcome of this case after the charge was filed.
The Company's records show that Boyle was discharged on July 27, 1961. Carter
explained the delay by saying that, because Boyle had produced a receipt and raised
a question concerning her standing in the Union, he waited for 3 days before enter-
ing her as discharged on the records, and that the 3-day waiting time was pursuant
to the contract, under which the Company could discharge an employee who was
absent 3 days without explanation.
Boyle did not speak with any representative of the Company thereafter until
after she had received a letter in early October 1961 from D. E. Perkins, the plant
manager, telling her that her job was available and offering her immediate reinstate-
ment. Then she telephoned Carter to tell him that her job was not available be-
cause a strike was going on. Carter told her that her card was in the rack and,
anytime she wanted to work, all she had to do was punch her card. It was stipulated
that the strike began on September 15 and was still in progress on the date of the
hearing.
C. Contentions and conclusions thereon
The General Counsel in his argument, rests his contention on the broad rule
enounced by the Board in Aluminum Workers International Union, Local No. 135,
AFL (The Metal Ware Corporation), 112 NLRB 613, enfd. 230 F. 2d 515 (C.A. 7),
but relies also on the grounds that (1) the Union, by accepting payment of Boyle's
delinquent dues before Boyle was actually discharged (although they were paid
after she had been stopped from membership) waived its right to cause her termina-
tion, and (2) by permitting Boyle in the past to pay her dues as much as 8 months
late, the Union had acquiesced in such late payments and so waived prompt payment.
The Respondents each argue that the broad rule laid down in the Aluminum
Workers case, that a tender, made at any time before discharge, would prevent a
lawful discharge has not been accepted by the circuit courts in the Ninth and Second
Circuits 4 The Company argues that Boyle's discharge would automatically have
gone through if Boyle had been on the job on July 14 instead of on vacation and
that her rights should not be enlarged by the mere chance that she was on vacation
at the time her discharge was requested. It also argues that "the termination
of whether payment of delinquent dues waives the Union's right to expel a member,
so long as all members are treated uniformly, is not a matter for the Board," that
* Since the briefs were filed, the Board has also abandoned the Atuminurn Workers rule
that tender made before discharge makes a subsequent discharge unlawful General
Motors Corporation , Packard Electric Division , 134 NLRB 1107 ; Acme Fast Freight,
Inc., 134 NLRB 1131.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boyle, under the Union's constitution, could not be reinstated merely by paying her
delinquent dues, and that Boyle knew this. The Union argues that if the Company
had acted promptly on the Union's request, Boyle would have been discharged be-
fore Boyle paid her dues and that the Union's right to cause her discharge should
not depend upon the Company's failure to take prompt action. The Company argues
that, even if it be held that the Union committed an unfair labor practice on the
ground that it had waived its right to expel Boyle when it accepted her payment,
the Company should not be responsible for that waiver, not knowing the internal
workings of the Union.
The problem of reconciling their conflicting interests in a situation such as is here
presented has plagued unions and employers alike from the time of the adoption
of the 1947 amendments to the Act, and the legal aspect of the problem has been
troublesome for the Board and the courts.5 An employer, from a practical stand-
point, dislikes to lose a satisfactory worker and may feel a human interest in an
employee of many years' service who is in jeopardy of losing his job and perhaps his
livelihood because of what appears to the employer to be a technical, and often
unintentional, violation of the contract requirements for maintaining union mem-
bership as a condition of employment. A union, on the other hand, has an interest
in eliminating what to it appears to be dead wood-the so-called free riders. The
fact that an employee is not a willful free rider but is by nature merely a chronically
tardy dues payer may not appear to be of great significance to a union if, in order
to enforce the union-security provision of its contract, it is attempting to act in an
impartial manner. Furthermore, the chronically late payer causes expense and ef-
fort to the Union because of the necessity for sending notices and for the keeping of
additional records.
The legislative history of the 1947 amendments with which we are here concerned
shows that Congress, presumably cognizant of these problems, sought to balance
the conflicting interests of the employee and the union As stated by the Ninth
Circuit Court of Appeals, "The essential question presented by this petition is focused
on the equities between the Union and the employee, as shaped and influenced by the
legislative policy inhering in the union security provision of the Taft-Hartley Act." 6
Some of the conflicting claims between employee, union, and employer in cases aris-
ing out of union-security contracts stem from the problem of timing-the relation-
ship between the time of an employee's failure to pay initiation fees or dues, the
time of the request of the contracting union for the employee's discharge, and the
time of the actual discharge, plus the late payment or tender of dues between any
two of such time elements 7 Unions generally argue that, at some time before actual
e Cf Chisholm-Ryder Company, Inc, 94 NLRB 508, decided in 1951, with Aluminum
Workers International Union, Local No 135, AFL (The Metal Waie Corporation), 111
NLRB 411, and, on reconsideration, 112 NLRB 619, decided in 1955; also NLRB v
Aluminum Workers International Union, Local No 135, AFL (Metalware Corp ), 230
F. 2d 515 (CA. 7), with NL.R.B. v. Technicolor Motion Picture Corporation, et at,
248 F. 2d 348 (CA 9), and The International Association of Machinists, AFL-CIO, and
Lodge 1021, IAM. AFL-CIO (New Britain Machine Co ) v. N L.R B, 247 F 2d 414
(C A. 2). As of the writing of this report the Board has reversed the Aluminum Workers
decision and gone back to the Chisholm-Ryder view of the law, as above noted
6 N.L R B. v. Pacific Transport Lines, Inc and Marine Cooks if Stewards, AFL-CIO,
290 F. 2d 14 (CA, 9)
7 Board decisions have not, since the Aluminum Workers case, cited supra, differen-
tiated between these various times when tender or payment was made. In the Aluminum
Workers case, tender was made after request for discharge but before actual discharge
In International Union of Electrical, Radio and Machine Workers. API -CIO, Frigidaire
Local 801 (General Motors Corporation, Frigidaire Division), 129 NLRB 1379, the tender
of dues was made before formal request for discharge. In each, the Board found the
subsequent discharges unlawful. Before those cases, however, the Board had found that
discharge of an employee who had fallen into bad standing (although not dropped from
membership) was lawful, although the delinquent dues were tendered after request for
discharge, before actual discharge, and before any formal action of expulsion on the part
of the union. Chisholm-Ryder Company, Inc, 94 NLRB 508. Under the rationale of
the Chisholm-Ryder case, presumably the discharge would have been lawful if the tender
were made after the employee became in "bad standing" because of dues delinquency but
before the formal request for his discharge, as long as the union rejected the tender, which
it did there. However, the Board later explicitly rejected such view. International
Association of Electrical, Radio, and Machine Woikers, AFL-CIO, et al., 129 NLRB 1379,
and 130 NLRB 1286 The latter case is now before the Court of Appeals for the District
of Columbia where it was taken by the respondent union on petition to review
COLGATE-PALMOLIVE COMPANY 1053
discharge, a cutoff time must be recognized, i.e., a time beyond which an employee
cannot recapture his chance of maintaining his good standing in the union and
thus his right to continued employment. This cutoff time, unions argue, should be
the time of the request for discharge of a delinquent member, for otherwise an
employer, they say, could disregard its contractual obligation and delay interminably
his compliance with the requested discharge, thus giving the delinquent employee an
unreasonable extension of time in which to pay.
Strictly from the standpoint of balance of equities, a union's inconvenience oc-
casioned by late payment of dues is less onerous than that occasioned to the em-
ployee. Where payment of dues is made tardily, the union's measurable loss or
damages in law is the use of the dues or initition-fee money for a time, a loss that
may be measured in terms of interest on moneys withheld, whereas the employee's
loss may be of his entire earnings for an extended period of idleness between jobs,
if not additional losses incurred in endeavoring to find other employment and a loss
resulting from possible new employment at lower wages Some analogy may be
found in cases of forefeiture for late payment of a contract obligation. Normally,
courts dislike to enforce a forfeiture and avoid it unless the parties themselves have
made time of the essence of the contract.
In the language of the 1947 amendments, Congress could, specifically, have made
timely payment of dues a condition of employment under union-security contracts
and thereby relieved the Board and courts of the problem of interpretation. One
bill introduced in the House of Representatives did limit the statutory protection to
"any individual who on or before the times required tenders ... the initiation fees
and dues regularly imposed as a condition of membership." 8 It is noteworthy,
however, that timeliness of payment was not specifically spelled out in the legisla-
tive provisions actually adopted, wherein nonpayment rather than timely payment
is the stated condition. It has been held that "periodic dues" cannot be given the
same meaning as timely payment of dues and that the words "periodic dues" are
construed to mean dues as regular charges as distinguished from nonperiodic or
irregular charges, such as fines or special assessments .9
Whether or not Congress omitted the requirement of timeliness of payment be-
cause it anticipated that too many cases of hardship would arise is not apparent.
That unions make bookkeeping mistakes, that sometimes there is a reasonable ex-
cuse for late payment, that legal grounds for differences of opinion as to whether
or not dues are owing at the time cause failure to pay on time and that satisfactory
adjustments are often made after late payment of dues cannot be denied. If the
Act makes timeliness of payment essential, presumably only the first of these three
situations would adversely affect a union's privilege of insisting upon the discharge
of a delinquent member under a union-security contract. That the union might not
insist upon its privilege in the other cases is not determinative of its legal right to
do so. Legislation cannot anticipate all possible hardship cases and provide excep-
tions for each. Congress may have considered that it is wiser to omit the requirement
of strict timeliness of dues payment and to leave it to the parties, the Board, and
the courts to consider the equities of the case, but to see that an employer does not
encourage free riders by unreasonable delay in discharging them after the union's
request to discharge them under the terms of the union-security agreement. Fur-
thermore, the parties could, by their own agreement, fix the maximum time after
request in which the employer is required to act, meanwhile giving the parties time
to learn the cause of late payment or tender and to correct the matter before dis-
charge. Even if a union is willing to withdraw its request after hearing the em-
ployee's excuse for late payment, if the employer must discharge immediately upon
receiving the union's request, an employee loses wages in the interim. If his dis-
charge results from the union's misdirection of the notice of delinquency to the
employee, the union might consider that to be a sufficient excuse and reinstate him,
but meanwhile the employee, if not actually discharged, would have been suspended
from employment and would lose time from work and pay therefor. The same
thing could occur if the employee were, upon the union's request, immediately dis-
charged and later it was ascertained that the union had made an error in bookkeeping
and that the employee in fact had paid his dues Then the shoe is on the other foot,
and the employee is saddled with the problem of making the union pay him his lost
wages.
8 H.R. 3020, 80th Cong ., 1st sess. ( 1947 ), Legis. Hist. of the Labor Management Rela-
tions Act, 1947 (Government Printing Office, 1948), pp 57-58, 184
Blnternational Harvester Company, Foundry Division (Louisville Works ), 95 NLRB
730, 731-733.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is often said that the purpose of the 1947 amendment to Section 8(a)(3) per-
mitting an exception to the proscription of discrimination was to permit unions to
remove free riders. As so stated , the purpose is generalized by the breadth of
definition one fashions for the term "free rider ." It seems no more likely to me
that Congress , in drafting the Act, would consider one to be a free rider who had
for many years paid dues every month (albeit on the last date possible ) but who,
through oversight, failed in 1 month to pay dues before the deadline than it would
be likely to say that the law should consider as a criminal one who uniformly paid
his income tax on the deadline date every year except one, in which year the time
slipped his mind for a few days so that he paid late.
I note that in N.L.R.B . v. Pacific Transport Lines, Inc., et al ., 290 F. 2d 14
(C.A. 9), relied on by both Respondents , evidence was abundant that the employee
involved was, for a long period of time, consciously attempting to avoid payment of
initiation fee and dues to the Union . It was undisputed that he refused payment
and pleaded inability to pay at a time when he had on him sufficient money to pay.
In its decision in the Pacific Transport case, the court noted ( footnote 8) that the
Technicolor case, previously cited, on remand to the Board, and N.L.R.B . v. Inter-
national Woodworkers of America , Local Union No. 13-433, AFL-CIO (Ralph L.
Smith Lumber Co .), 264 F. 2d 649 (C.A. 9), were both distinguishable from the
case before it in that in the Technicolor and Woodworkers cases the union had ac-
cepted the employees ' tender of dues, in the one case, and application for membership
in the other, whereas the late tender in the case before the court (Pacific Transport)
was not made until after the discharge had occurred . 1° In commenting on free
riders the court in the Pacific Transport case said:
Congress recognized the validity of the union 's concern about "free riders,"
i.e., employees who receive the benefits of union representation but are un-
willing [emphasis supplied ] to contribute their share of financial support to
such union . .. .
I do not classify Boyle as a free rider in the same sense as the nonpayer in the Pacific
Transport case.
Since the Board has repudiated the Aluminum Workers decision , it is no longer
open to question that a mere tender of dues after request for the delinquent dues
payer's discharge under a contract requiring maintenance of membership will not
prevent a lawful discharge , but the Chisholm -Ryder, the Aluminum Workers, and
the General Motors Corporation , Packard Electric Division cases all involve tender
which was rejected by the union . These cases do not dispose of the problem raised
where there is a request for discharge , because of nonpayment of delinquent dues,
an acceptance by the union of those delinquent dues, followed by a discharge, with
the union 's making no retraction of its request for discharge, but its continuing to
insist on it. The General Counsel 's contentions based on the effect of an acceptance
of dues, therefore , must be considered.
Acceptance of Boyle's dues, the General Counsel contends , constituted a waiver
by the Union of its right to insist on Boyle's discharge . He also contends that a
waiver occurred as a result of the Union 's lax practice in the past in accepting
delinquent dues from Boyle, sometimes many months late, without causing her
discharge.ll Whatever merit this latter contention might have if such had con-
tinued to be the Union 's practice , the Union had, to the knowledge of Boyle,
abandoned this practice more than 3 years before Boyle's discharge . Technically,
this argument rests more on the theory of estoppel than on that of waiver, and the
Union was not estopped from asserting its right in the future merely by past lax
conduct where it gave full notice to dues payers of a change in practice before the
default occurred . The General Counsel 's other basis for asserting a waiver by the
Union-the fact that the Union accepted payment of Boyle's delinquent dues-
requires fuller consideration . Waiver has been defined as the voluntary or inten-
tional relinquishment of a known right. (Cyclopedic Law Dictionary , Third Ed.,
10 It is worth noting that after his employment was terminated on one ship (on April 20)
because of nonpayment of dues, the employee paid his dues (on May 4) and received an
assignment on another ship. In other words, the employee was not excluded from the
union for all time because he had belatedly paid his dues. From the evidence, it is im-
possible to ascertain whether or not his former job would still have been available to him
on May 4.
11 The evidence discloses that in September 1952 she was sent a drop notice. There is
no indication that she was, however, dropped for nonpayment of dues or had ever been
required to appear before the Union's grievance committee to seek reinstatement before
1961.
COLGATE-PALMOLIVE COMPANY 1055
Callahan and Company). That the Union did not consciously intend to reinstate
Boyle to membership or to relinquish its right to cause Boyle's discharge by accepting
her delinquent dues and by issuing what it called a temporary receipt, instead of
entering the payment in Boyle's dues book, is fairly evident. If it may not right-
fully insist on her discharge, it is because, as a matter of law, it may not act incon-
sistently by accepting the payment which, if timely, would have prevented discharge,
while at the same time insisting on the privileges going with nonpayment-that of
causing discharge. This is more nearly akin to estoppel than to waiver. Estoppel
is the ground relied on by courts to prevent a person from taking advantage of
another after having induced reliance on his conduct. It is evident that Boyle was
seeking to save her job after she was dropped from membership and that she paid
her dues with that end in view. There is no evidence whatever that she would have
paid those dues if she had believed that she would lose not only her union member-
ship but also her job. Under the circumstances, it was incumbent on the Union
to tell Boyle that, whether she paid her dues or not, it was still going to insist on
her discharge. Then, if she paid her delinquent dues, the payment would have been
a payment of a past debt and nothing more. Boyle was led to believe, however,
that she could expect favorable action if she paid her dues. Although she was told
that she would have to appear before the grievance committee, the fact that she
was told to pay her dues and then take the matter before that committee could lead
her to believe that the committee would be lenient if she paid her dues. An employee
of 19 years' membership and employment with the Company would have reason
to believe that this would be taken into account and that discharge, after payment
of dues, would not have been insisted on.
Both the Union and the Company argue that Boyle's payment of her delinquent
dues before discharge was accidental and that if she had been at work instead of
on vacation on July 14, when the Company received the Union's request for Boyle's
discharge, Boyle would have been discharged before, instead of after, payment of
her delinquent dues. This, however, is pure speculation. It is just as likely that,
if Boyle had not been on vacation, she would have remembered to pay her dues
on the last permissible day according to her customary practice. This case cannot
be decided on what might have happened if the facts were not exactly as they occurred.
Furthermore, the Respondents' speculation ignores one fact. After request by the
Union for a dropped member's discharge, the Company made it a practice, pre-
sumably with the Union's assent, to withhold formal discharge for a few days in
order to give the dropped member an opportunity to straighten out his standing with
the Union. In this case, the Company gave Boyle from July 24, the date she re-
turned to the plant after the plant vacation, to July 27, before it entered her dis-
charge on its records. There is no indication that it would have done otherwise
and would have written off an employee of 19 years' service without a chance to
square herself with the Union had Carter seen the Union's request for Boyle's dis-
charge immediately upon its receipt at the Company's office instead of after his
vacation. Carter testified that, when an employee was not at work when the
discharge request was received, the Company would not discharge him until he
returned to the plant, at which time , Carter testified. he would interview the em-
ployee, ask him if he had paid his dues, and, if he had not paid them, Carter would
tell him that he would have to go to the Union and straighten it up before he could
be allowed to return to work. It may be seen , therefore, that the mere chance that
Boyle was on her vacation when the discharge request was delivered at the plant is
of no importance. She still would not have been discharged until she had been
interviewed at the end of her vacation and been given the same chance she was
given to adjust her financial problem.
The Board has held that, as a matter of law, an employee 's delinquent status
is cured by the union's acceptance of payment of initiation fee and delinquent dues.12
Independently of the question of whether or not it should be concluded that accept-
ance of delinquent dues will, as a matter of law , constitute a waiver of a union's
right, under its union-shop clause, to insist on discharge, the contract of the parties
in this case seems to lead to the same conclusion. In the maintenance-of-member-
ship clause, the contract provides: "For the purposes of this Agreement, an employee
shall be deemed to be a member in good standing if he or she is not in default in the
payment of the periodic dues uniformly required by the Union as a condition to
retaining membership in the Union." Boyle's dues may have been in default for
a few days, but can they be said to have remained in default after the Union accepted
payment thereof? If they were not in default after payment, then, by the definition
of membership in the contract, Boyle was a member in good standing when she was
12F. J. Burns Draying, Inc, 129 NLRB 252.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged. In the face of the contract definition, I fail to see how the Union can
insist on membership in a broader sense as a condition of employment. Hence,
although favorable action by its grievance committee might have been a prerequisite
to restoring full membership in the Union, that action was not essential to restore
Boyle's right to employment, under which actual membership was not required so
long as the employee's financial obligations to the Union had been met.
It may be argued that the contract requires continuous maintenance of member-
ship as a condition of employment and that, if a hiatus occurs, the test has not been
met. The answer to this argument is that such hiatus has not deterred the Union
from approving of the continued or renewed employment of a member who, although
dropped for nonpayment of dues, has convinced the Union's grievance committee
that his membership should be restored. The Union also argues that restoration of
membership is not a guaranty of reinstatement on the job. Disregarding for the
moment the propriety of this premise, I note that there were cases where the
employee returned to work for the Company after favorable decision by the
grievance committee. In such cases, the Union did not object to the fact that the
membership of such employee had not been continuous If the Union argues that,
as it had not restored membership to Boyle, her case was not one of hiatus in
membership, the answer is that this argument relies upon the esoteric meaning of
the word "membership" and not upon the contract meaning. Where the Union
provides for restoration of membership on certain conditions, it may impose con-
ditions precedent to such restoration of membership which only a select few can
meet, but if it does so, it cannot, by asserting a privilege under its maintenance-of-
membership agreement affect the employment rights of any nonmember employee
who meets the condition of payment of dues.13
It is plain here that the Union has not provided uniform conditions for restoration
of employment rights, regardless of the uniformity in determining who should be
restored to full membership It has made the restoration of membership and the
consequent continued or renewed employment rights of the ex-member employee
depend upon an additional factor-the unpredictable decision of the Union's griev-
ance committee, a hurdle which one dropped member may surmount but another
may not, even though each has paid all his delinquent dues. Granting that the
Union's grievances committee may reinstate to membership only those who have,
in its honest opinion, a justifiable excuse, nevertheless, except in cases of commonly
recognized excuses, such as illness or failure to receive notice, no guaranty of
uniformity of judgment or action exists. It is unlikely that the grievance committee
would make a purely mechanical determination on the basis of predetermined
criteria without considering the merits of the cases presented. If its decision were
purely mechanical, there would be no reason to have the committee pass on the
matter at all, because any clerk could apply the mechanical test. As it was, the
Union was in a position to differentiate between former members, dropped for non-
payment of dues and seeking reinstatement, on the basis of comparative past records
for dues payments, on how active or cooperative a member had been, on whether
or not the member had been engaged in business for the Union on the final day, and
any number of other factual situations. This dependence of job status on the de-
cision of the grievance committee made it possible for the Union to inject into the
requirement of membership more than just the requirement for the payment of
dues or initiation fees, whether considering the case under the contract definition of
membership alone or under the provisions of the Act. Such additional elements
are not authorized by the Act.14 The Union asserted no right to charge Boyle a
new initiation fee or reinstatement charge, and there is no evidence that Boyle would
have been reinstated upon payment thereof if it had. Obviously, therefore, her
failure to make such an offer cannot be held against her.
The Company argues that it had no reason to believe that membership was not
available to Boyle on the same terms and condition generally applicable to other
members, not knowing the inner workings of the Union, and that in any event it
did not know that Boyle's dues were current because Carter did not know what
period the dues payment shown in her receipt covered The first argument is
directed to proviso A of Section 8(a)(3) of the Act and the second argument is
directed to proviso B thereof. With regard to the first, the language of the contract
made the inner workings of the Union immaterial, so all that the Company should
have been concerned with was whether or not Boyle was delinquent in dues when
is Reading Tube Corporation , 120 NLRB 1604
14 See Union Starch i Refining Company, 87 NLRB 779, enfd 186 F. 2d 1008 (C A. 7),
cert denied 342 U.S. 815; The Baltimore Transfer Company of Baltimore City, The,
94 NLRB 1680; United Brotherhood of Carpenters and Joiners of America, Milimen's
Local 824 , AFL-CIO ( Brunswick-Balke-Callendar Company ), 115 NLRB 518
COLGATE-PALMOLIVE COMPANY 1057
interviewed by Carter on July 24. On that date, Boyle showed Carter her dues
receipt. Although Carter professed not to know whether the dues shown by the
receipt brought Boyle up to the point where she was not delinquent, I find that the
Company was chargeable with knowledge of the fact that Boyle was current in
he dues when Carter was given the opportunity to ascertain this fact upon his
inspection of Boyle's dues receipt, for the receipt showed on it that June dues had
been received. Furthermore, the Company had reason to believe that, if the request
for Boyle's discharge was not rescinded after she had paid her dues and been before
the grievance committee, she was denied membership for some reason that did not
apply to others who were reinstated by the Union after paying their dues and re-
ceiving a favorable decision by the grievance committee and for whom the Union
withdrew its request for discharge. Hence, the Company had reason to believe
that reinstatement of Boyle to membership was denied to her for some reason other
than the fact that she had not paid her dues. Since the Company knew that, under
the collective-bargaining contract, membership was defined in terms of the payment
of dues (not timely payment thereof), it should have calculated that, if the request
for discharge of one defaulter was withdrawn after financial adjustment, it should
be withdrawn for all who made such financial adjustment Accordingly, I find
that under both provisos to Section 8(a)(3) of the Act, the Company's defense falls,
and I find that the Company discriminated in regard to Boyle's hire and tenure of
employment, thereby encouraging membership in a labor organization in contra-
vention of Section 8(a) (3) of the Act.
If the Union's request caused such discrimination, it, likewise, is in violation of
the Act, under Section 8(b)(2) thereof. At the time the Union made its request
for Boyle's discharge, it was privileged to do so under its maintenance-of-member-
ship contract and under proviso B to Section 8(a) (3) of the Act. However, when
it accepted Boyle's delinquent dues on July 17, although it may not have lost the
right to exclude her from membership privileges other than the privileges of
employment, it could not, under the contract, as worded, accept her dues, thus making
Boyle no longer delinquent in her dues (thereby satisfying the contract definition
of membership) and not accord her the same right to a revocation of its request
for discharge as it did with other employees to whom it restored full member-
ship privileges The Union's failure to withdraw its request for Boyle's discharge
was not due to oversight or mistake of fact on its part. Boyle had spoken to the
Union's business agent , Paul Heide, on July 24 about returning to work since she
had paid her dues and he told her that she would have to wait until after she
appeared before the grievance committee This, as well as the grievance com-
mittee's action, constituted a refusal to withdraw the Union' s request for Boyle's
discharge and was, in effect, a reassertion thereof. On all the evidence, I find that
the Union did cause the Company to discharge Boyle in violation of Section 8(a)(3)
of the Act and that it thereby violated Section 8(b) (2) of the Act. Derivatively,
the Company violated Section 8(a)(1) and the Union, Section 8(b)(1)(A) of
the Act.
IV. THE REMEDY
Having found that each of the Respondents has committed an unfair labor prac-
tice, and since the Company has already offered Phyllis Boyle reinstatement, which
offer was kept open pending the current strike, I shall recommend that, upon request
from Boyle, but not later than 5 days after the termination of the strike, the Company
reinstate her to her former or substantially equivalent position and that it, jointly
and severally with the Union, make Boyle whole for any loss of pay suffered by
reason of the discrimination against her by paying her a sum of money equal to
the amount she would normally have earned as wages from the date of the dis-
crimination until compliance by each Respondent, respectively, with the reinstate-
ment provisions herein provided, less her net earnings during this period. I shall
recommend that the Union notify the Company in writing, and furnish a copy thereof
to Boyle, that it withdraws its objection to Boyles employment and that it requests
her reinstatement.
Because the unfair labor practices herein found were committed as a result of a
misconception of the law involved and do not indicate a disposition to disregard
the policies of the Act, I shall not recommend the broad cease-and-desist order.
Upon the foregoing facts, and upon the entire record in the case, I hereby make
the following:
CONCLUSIONS OF LAW
1. Respondent Colgate-Palmolive Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Longshoremen's & Warehousemen's Union, Local 6, is a labor
organization within the meaning of Section 2(5) of the Act.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discharging Phyllis Boyle at the request of the Union , the Company has
discriminated in regard to her hire and tenure of employment in violation of
Section 8 ( a) (3) and (1) of the Act.
4. By causing the Company to discriminate in regard to the hire and tenure of
employment of Boyle in violation of Section 8(a)(3) of the Act, the Union has
violated Section 8(b)(2) and (1) (A) of the Act.
5. The aforesaid 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.]
State Plating and Finishing Company and International Union,
United Automobile , Aircraft, and Agricultural Implement
Workers of America (UAW), AFL-CIO. Case No. 7-CA-3444.
September 27, 1962
DECISION AND ORDER
On April 24, 1962, Trial Examiner William J. Brown issued his
Intermediate Report in the above-entitled case, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the modifications noted herein.2
THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices, we shall order it to cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the Act, as recom-
mended by the Trial Examiner, with the following modification.
Members Fanning and Brown, for reasons set forth heretofore,'
find merit in the exceptions of the General Counsel to the failure of
'As the record , including the exceptions and briefs, adequately present the issues and
positions of the parties, the request for oral argument by the Respondent is denied.
3 As we agree with the Trial Examiner that Jenkins is not a supervisor within the
meaning of the Act, we do not pass upon the Trial Examiner 's refusal to permit the
General Counsel to reinstate and amend section 8 (b) of the complaint
3 1s2s Plumbing & Heating Co , 138 NLRB 71,6.
138 NLRB No. 121.