FMC Corp.

National Labor Relations Board - Board Decisions

Nov 29, 1973

207 N.L.R.B. 639 (N.L.R.B. 1973)

FMC CORPORATION 639
FMC Corporation, Link-Belt Chain and Conveyor
Components Division and John V. Warrenburg.
Local Union No. 1150, United Steelworkers of
America, AFL-CIO-CLC and John V. Warren-
burg. Cases 25-CA-5312 and 25-CB-1618
November 29, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On June 27, 1973, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, the General Counsel, Charg-
ing Party, and Respondent Employer filed excep-
tions and supporting briefs and Respondent Union
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
1 We agree with the Administrative Law Judge that, in the total
circumstances of this case , it has not been shown that Respondent Union
violated Sec . 8(b)(2), or that Respondent Employer violated Sec. 8(a)(3).
Employee Warrenburg was suspended on a Saturday by the Employer, at
the Union's request , for nonpayment of periodic dues. Warrenburg's wife
had appeared at the union hall at the close of business the day before, the
last day specified by the, Umon, but , because of a misunderstanding, did not
pay her husband's dues As the Administrative Law Judge found, Mrs.
Warrenburg, finding the lights off in the teller 's cage, went to the back of
the hall and knocked on the door of the Union's conference hall where a
meeting was in progress Mrs. Warrenburg informed the man who opened
the door she was there to pay union dues and repeated the statement when
the man asked her to do so . The Umon's President, Stammer, aware of her
presence but, as a result of being preoccupied with other business, not
having heard what Mrs. Warrenburg had said, asked, "Yes9" Mrs.
Warrenburg replied asking , "Is the secretary here?" Stammer informed Mrs.
Warrenburg that the secretary had gone for the day. Mrs. Warrenburg left
without ever identifying herself and without making any further reference to
her purpose for being there. Warrenburg was able to straighten out the
matter over the weekend and the Umon released him to go back to work the
following Monday. We do not believe that this series of misunderstandings,
quickly cleared up, amounts to a violation of the Act by the Union. Since
we find the Union did not violate Sec . 8(b)(2), it follows that the Employer
did not violate Sec. 8(aX3) by acceding to the Union's request. We find it
unnecessary to pass on any of the alternative rationales set forth by the
Administrative Law Judge , but adopt the Administrative Law Judge's
finding and rationale with respect to the alleged threat by Stammer.
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH , Administrative Law Judge : Charging
Party John V. Warrenburg, who refuses to authorize union
dues checkoffs from his wages , is a chronically delinquent
dues paying member of the Respondent Union.
On December 1, 1972, when he was 5 months in arrears
on his union dues and subject to expulsion from the Union
and to discharge by the Respondent Employer under their
collective-bargaining agreement if his dues were not paid
up that day, Warrenburg sent his wife to the Union's office
just minutes before its closing time at 5 p.m., to pay his
dues.
Although Mrs . Warrenburg did in fact call at the union
offices for that purpose, there is a serious question under
the circumstances detailed below as to whether she made a
valid tender of her husband 's delinquent dues to the union
officials then in executive session as she did not identify
herself to the officials or state for whom she wanted to pay
union dues and in fact left the union offices without
leaving payment for her husband's back dues. When
Warrenburg reported for work next day, a Saturday, at 7
a.m., his foreman declined to allow him to check in
pursuant to an earlier written notice that this would be the
consequence of his failure to pay his back union dues by
December 1, 1972.
That same Saturday Warrenburg went to the home of the
Local's financial secretary, William T . Bowers, to pay his
unio i dues and in his absence , pressed the money for his
dues into the hands of Bower's wife.
On Monday at about 1 p.m., Warrenburg called his
Employer to find out if the Union had released him to
report to work . He was told that he ,had been released as of
9 o'clock that morning but chose not to start work until
Tuesday, the next day. Instead at about 4 : 40 that same
Monday afternoon, Warrenburg and his wife called at the
Union's office where Warrenburg heatedly accused the
Local's president Paul J . Stammer of having caused him to
lose 2 days' work. A bitter verbal exchange took place
between the two men . It is alleged that in this exchange
Stammer threatened Warrenburg in violation of the Act
that he would cause him to lose his job with the
Respondent Employer for reasons unrelated to his failure
to keep up his union dues.
Under the above admitted but skeletonized facts, the
issues under the complaints are:
1. Whether in the last 15 minutes of the last day for the
payment of his 5-month delinquent union dues, Warren-
burg through the agency of his wife made an effective and
valid tender of his dues to the Union so as to place the
Union in violation of Section 8(b)(2) of the Act for causing
his Employer to suspend Warrenburg from his job the next
day for reasons other than the ostensible nonpayment of
his union dues.
2. Whether the Respondent Employer's discharge or
suspension of Warrenburg on December 2, 1973, under the
mandatory terms of its collective-bargaining agreement for
207 NLRB No. 98
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonpayment of his delinquent union dues in the face of
Warrenburg's claim to his supervisors that his wife had
tried to make a timely payment of his dues the previous
day and the fact that the Employer had not made an
independent investigation of that claim, constitutes a
violation of Section 8(a)(3) and (1) of the Act under all the
circumstances of this case.
3. Whether the Local's president Stammer, in violation
of Section 8(b)(1)(A) of the Act, threatened Warrenburg
with the loss of his job with his Employer for reasons other
than his failure to pay his periodic union dues when
Warrenburg after his temporary suspension from his job
called upon Stammer to complain that he had caused him
the loss of 2 days' work for nonpayment of union dues
although his wife had tried to pay his dues on the deadline
date.
The complaint in Case 25=CB-1618 was issued on
February 14, 1973, pursuant to an original charge filed on
December 11, 1972. The complaint in Case 25-CA-5312
was issued on February 21, 1973, pursuant to an original
charge also filed on December 11,1972. The answers of
both the Union and the Employer deny the alleged unfair
labor practices.
The case was heard on May 2, 1973, at Indianapolis,
Indiana. The briefs filed by the parties have been carefully
reviewed and considered.
For reasons hereinafter indicated, I will recommend that
both complaints be dismissed in their entirety for failure of
proof of the alleged unfair labor practices.
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent Employer, FMC Corporation, Link-Belt
Chain and Conveyor Components Division, a Delaware
corporation, maintains offices and a place of business at
Indianapolis, Indiana, herein referred to as the Indianapo-
lis facility, and various other facilities located throughout
the United States. The Company, at its Indianapolis
facility, is engaged in the manufacture, sale, and distribu-
tion of chains and related products. During the past 12
months, a representative period, the Company, in the
course and conduct of its business operations, purchased,
transferred, and delivered to its Indianapolis facility, goods
and materials in excess of $50,000 which were transported
to said facility directly from States other than the State of
Indiana. During the same representative period, the
Company, in the course and conduct of its business
operations, manufactured, sold, and distributed at said
Indianapolis facility, products valued in excess of $50,000
which were shipped from said facility directly to States
other than the State of Indiana.
It is found that the Company at all times here material
has been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union, Local Union No. 1150, United
Steelworkers of America , AFL-CIO-CIC, is a labor
organization within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company's Indianapolis facility employs approxi-
mately 1,500 persons and has been under collective-
bargaining agreements with the Union for many years.
Since at least 1965, these agreements have provided for
voluntary checkoffs of union dues from wages. All but
about three dozen employees out of the 1,500 employees at
the Indianapolis plant have given the Company voluntary
written authority for union-dues checkoffs from their
wages.
John V. Warrenburg, the Charging Party, has been an
employee of the Indianapolis facility since 1965. Originally
under voluntary checkoff for his union dues, Warrenburg
withdrew his authorization for such checkoffs in 1968
because of his strong feelings that the United Steelworkers,
hereinafter called the International , had in his opinion
improperly raised union dues and thereafter paid his dues
in cash directly to the Local at its Indianapolis office.
From the time in 1968 when Warrenburg withdrew his
voluntary union-dues checkoff authorization, he has been
chronically delinquent in paying his periodic union dues to
the Local. The record shows that he would always stay as
far in arrears as the Local permitted him by their notices,
generally pretty close to the last day. Under the Company's
collective-bargaining agreement, it is "condition of em-
ployment" at its Indianapolis plant that its employees
"remain a member [of the Union] in good standing as to
the payment of Union dues." " Under the constitution of the
International, a member is "in good standing if he is not
more than three (3) months arrears" in his periodic dues.
The constitution further provides that members "who lose
good standing shall stand automatically expelled and
devoid of membership rights."
The Local has been lax in enforcing the constitution's 3-
month rule in that it has been allowing its cash dues paying
members to run 5 months in arrears before revoking their
"good standing" in the Union. To correct this situation, the
Local, under date of October 3, 1972, sent a notice "To all
Cash Dues Paying Members" in which they were told that
.. beginning November 1, 1972, we must insist no
member become more than three months behind in the
payment of their dues." The notice also informed the cash
dues paying members that as of November 1, 1972, the
Local would notify the Company "of anyone no longer a
member in good standing and 'demand that they be
discharged" in accordance with its collective-bargaining
agreement with the Company.
Warrenburg received a copy of the described notice on
or about October 4, 1973. On November 1, the Local
notified Warrenburg by letter that he was "more than sixty
days behind in payment" of his union dues and warned
him that under the constitution of the International and
the terms of the collective-bargaining agreement any
member who was more than 3 months in arrears of his
dues would lose his good standing in the Union and
become subject to discharge by the Respondent Employer.
The letter further notified Warrenburg that unless his dues
were paid up by December 1, 1972, the Local would notify
the Respondent Employer that he was no longer a member
FMC CORPORATION 641
in good standing. The letter also informed him that his
dues would have to be paid at the union hall "any time
between the hours of 8 a.m., and 5 p.m., Monday through
Friday."
On the same date of November 1 the Local also sent a
letter to the Respondent Employer's labor relations
supervisor advising that Warrenburg was 60 or more days
in arrears in the payment of his union dues and that unless
the Local notified the Company that Warrenburg had
removed his arrearage, the Company was requested to
discharge Warrenburg 30 days from the time it received the
letter. As the letter was dated November 1 and it is
stipulated that the letter was received by the Company on
November 2, the record shows that the Company properly
interpreted the letter to mean that Warrenburg was not to
be allowed to report to work on December 2 unless prior
thereto he had paid up his delinquent dues. This is also the
interpretation required under the provisions of both the
constitution of the International and the current collective-
bargaining agreement here involved dealing with the
requirements that members must remain in good standing
by not being in arrears more than 3 months.
Actually as of December 1, 1972, Warrenburg was 5
months in arrears in his union dues, -not the 3-month limit
prescribed by the constitution of the International for
remaining in good standing as a member.
B. Critical Events of December 1, 1972, Re Alleged
Tender of Union Dues
Warrenburg and his wife Margaret, the mother of several
children, are both employed full time. As heretofore noted,
Warrenburg is employed at the Indianapolis facility of the
Respondent Employer. Mrs. Warrenburg is employed as a
press operator at a printing plant located about 2 miles
from where her husband works.
On Friday morning, December 1, 1972, the deadline for
the payment of Warrenburg's delinquent union dues, Mrs.
Warrenburg drove her husband to his place of employment
and dropped him off and then continued on to her place of
employment. That Friday was payday for both of them.
The union offices where Warrenburg pays his cash dues
are within an 8 to 10 minute walk from the plant where he
works. Instead 'of personally taking care of the payment of
his own union dues during his 45-minute lunchbreak that
noon,' Warrenburg while en route to work with his wife
asked her to drop in at the union offices and pay his dues
out of her paycheck after she finished work at 4:30 p.m.
She was then to pick him up at his plant where he was
scheduled to work that day until 4:45 p.m., and then the
two were to head for an evening of bowling. Warrenburg
specifically told his wife that his dues had to be paid that
day or else he would face suspension from his job.
Mrs. Warrenburg arrived at the union hall at about
4:45 p.m., that day. The Local's regular closing time is 5
p.m. Finding the lights off at the teller's cage where union
dues are paid and no one there to receive dues, she
proceeded down the hall to a conference room from which
she heard voices emanating. There the Local's board of
directors, with 12 board members present, was in session
under the chairmanship of the Local's president Paul J.
Stammer. She knocked on the door and a man close to the
door opened it and asked what she wanted. I credit her
testimony that she replied that she "wanted to pay Union
dues." I also credit her testimony that the man asked her to
repeat what she had just said and that she thereupon raised
her voice "a little bit" and told him again that she "wanted
to pay Union dues."
There is a direct conflict of testimony of what next
transpired. Mrs. Warrenburg testified that "a man at the
other end of the room answered and told me that the girl
had already left." At that time Mrs. Warrenburg did not
know the identity of the man who first asked her what she
wanted or the man at the other end of the room who
answered that "the girl had already left." She later
discovered that the man who had answered her from the
other end of the room was the Local's President Stammer.
Stammer in his testimony admitted that at the union
board meeting of December 1 at about 4:45 p.m. he saw an
unidentified woman at the door of the conference room
whom he later learned was Mrs. Warrenburg, but flatly
denied that he heard her say at any time that she was there
because she "wanted to pay Union dues." His version of
what occurred was that he was preoccupied at the time
with the polling of board members on some urgent matter
before the board when he suddenly saw an unknown and
unidentified woman at the door. He quizzically asked her,
"Yes?", obviously meaning what did she want. He testified
that she replied, "Is the secretary here?" and that he, then
assuming that this stranger was a friend of the office
secretary who receives union dues, answered, "No, she's
gone for the day." He stated that thereupon the unidenti-
fied woman said, "Thank you" and walked out. Stammer's
version of the occurrence is corroborated by Thomas
Hanes, Don Alexander, and Robert Pride who were also in
attendance at the meeting.
Mrs. Warrenburg by her own admission never at any
time identified herself by name or told anyone at the union
board meeting that she was the wife of John V. Warren-
burg or mentioned his name or that she came to' pay his
dues. All she said by her own admission was that she was
there "to pay Union dues." There is no creditable evidence
that anyone at the board meeting knew her or recognized
her as the wife of John V. Warrenburg. The record is
further clear that Stammer did not know who she was.
At 4:50 p.m., or within 5 minutes after leaving the union
offices, Mrs. Warrenburg picked up her husband in her
car. He asked her if she had been to the union offices to
pay his dues. In replying 'she told him her version of what
had transpired as set forth above, but failed to tell him that
she did not identify herself to the union officials at the
Local's offices or in anyway let them know that she had
come to pay John V. Warrenburg's union dues. Her
husband replied, "Well, I'll go tomorrow' 'during my
lunchtime, I'll run over and pay them ." " They then went
home because her husband "had to bowl" that night.
The union offices are open from 8 a.m. to 5 p.m.,
everyday in the week except Saturday and Sunday. On the
1 Warrenburg received his paycheck in the morning before his lunch-
break. There is a bank within 3 blocks of the plant where many employees
cash their paychecks.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deadline Friday here involved Stammer had given the
office girl , who functions as a secretary and cashier for the
Local, permission to leave at 4:30 p .m. to do some personal
shopping as he would be at the office in any event until
after 5 p .m. The union board meeting ended at about 5:30
p.m. and thus the Local's offices were open until then.
I find that Warrenburg, upon receipt of word from his
wife at 4:50 p .m., that she had not succeeded in paying his
dues, could have personally presented himself at the
Union's offices prior to 5 pan ., and there made timely
tender of his delinquent dues before the scheduled
sanctions for nonpayment were to go into effect.
Discussions and Conclusions
Of the two versions of the verbal exchange between
Stammer and Mrs. Warrenburg on December 1, 1972, at
4:45 p.m., when she startlingly appeared at the entrance of
the Union's conference room, I credit Stammer's version
that Mrs. Warrenburg, in response to his monosyllabic
"Yes?" inquiry as to what she wanted , merely asked, "Is
the secretary here?" I do not credit Mrs. Warrenburg's
testimony that Stammer 's first words to her were in reply to
her statement to a board member near the door that she
was there "to pay union dues." The record is clear,
however, that whether Mrs. Warrenburg communicated to
Stammer she was there to pay union dues or merely asked
him if the secretary was in , Stammer " replied that the
secretary was "gone for the day."
While I credit Mrs. Warrenburg 's testimony that when
she opened the door to the conference room and was asked
by the board member nearest to the door what she wanted
that she twice told him she "wanted to pay union dues," I
credit Stammer's flat denial that he heard her make that
statement . I credit Stammer's denial because his testimony
shows that at the time Mrs. Warrenburg made her
unexpected appearance he was deeply preoccupied with
polling the union board members on an urgent matter
before the board and completely oblivious to her presence
until he suddenly saw her when he looked up and put to
her the sharp question, "Yes?" The fact that Stammer was
towards the rear of the conference room surrounded by a
dozen union board members also tends to corroborate
Stammer's denial that he heard Mrs. Warrenburg state that
she was there to pay union dues.
The record is clear that Stammer in his brush with Mrs.
Warrenburg at the conference room cannot be deemed to
have replied as he did because of any animus to her
husband over his chronic delinquency in the payment of
union dues because at that time Stammer had no idea that
the lady he was speaking to was Mrs. Warrenburg. He did
not discover that she was the wife of John V. Warrenburg
until the following Monday.
Finally I credit Stammer's version of the colloquy
between himself and Mrs. Warrenburg against her version
because of his more convincing demeanor and because his
version was corroborated by three other board members
who were also present at the meeting.
The laches which resulted in Warrenburg's temporary
suspension for some 10 hours was brought on by his own
failure, either personally or through his wife, to make a
timely and identifiable tender of long overdue union dues;
it did not result from any laches or any want of duty on the
part of the Union.
But even if full credence is given to Mrs. Warrenburg's
testimony that in her encounter with Stammer at the
conference room, Stammer was aware of her purpose there
because she had twice stated to the board member -nearest
to her that she "wanted to pay union dues ," I find that that
statement was merely -precatory in nature and not an
effective or valid tender or offer of dues because she did
not identify herself or identify the person in whose behalf
she wanted to pay dues . As stated in 17 American
Jurisprudence 2d, 3, "An- offer must be definite and
certain." Mrs. Warrenburg's "offer" lacked definiteness
and certainty not only because she did not directly or
indirectly identify the person for whom she was offering to
pay union dues - but also because she did not actually
tender the money for the delinquent dues. As stated in
original edition of 52 American Jurisprudence, 7, page 219,
"A mere offer to pay does not constitute a valid tender;' the
law requires that the tenderer have the money present and
ready, and produce and actually offer it to the party.
Tender implies the physical act of offering the money or
thing to be tendered , but this cannot rest in implication
along . The law requires an actual , present , physical offer; it
is not satisfied by a mere spoken offer to pay...."
Under the circumstances here present where her hus-
band faced the loss of his job unless his long delinquent
dues were paid on the critical date here involved, I find
that the offer by an anonymous person to pay dues for an
anonymous union member did not constitute an effective
and valid tender of union dues within the prescribed time
limit to prevent the application of sanctions for nonpay-
ment of the overdue union dues.
The record leaves no doubt that Stammer would have
stopped everything to clear John V. Warrenburg of his
delinquency if Mrs. Warrenburg had told him that she was
John V. Warrenburg's wife , that she had come in to pay his
dues and that unless his dues were paid that day her
husband would lose his job.
In summary I find and conclude that Charging Party
John V. Warrenburg did not make a valid tender of his
delinquent union dues to the Respondent Union on
December 1, 1972, the critical date for remaining in good
standing in the Respondent Union , and that accordingly
the Union is not in violation of Section 8(b)(2) of the Act
for causing the Employer to suspend Warrenburg the next
day for nonpayment of his periodic dues as required under
the collective-bargaining agreement.
C. Critical Events of December 2, 1972, Re Charges
Against Respondent Employer
The following day, Saturday , December 2, 1972, Warren-
burg, who was scheduled to work 8 hours that day, arrived
at the plant at 6:40 a.m. Upon arrival, he was told by his
line foreman, Thomas C. Roseman , that he could not allow
him to check in until he talked to the day shift foreman,
William Mitchell , who had not yet arrived concerning his
nonpayment of union dues . When Mitchell got to the plant
a few minutes later, he informed Warrenburg that he had
orders not to allow him to work because he had not paid
his union dues . When Warrenburg explained that his wife
FMC CORPORATION 643
had tried to pay his union dues on Friday but that the
Union "would not accept them," Mitchell informed him
that he could not allow him to check in until he had a
"release" from the Union.
Thereupon, Warrenburg made an attempt over the
telephone in the presence of Mitchell and within his
hearing to get -a release from the Union by placing calls to
various -union officials who worked at the plant but was
unsuccessful because no union officials were present at the
plant that Saturday. The record shows that there is a
longstanding agreement between the Local and manage-
ment that no union business is to be conducted on
Saturday because the various departments at the plant do
not operate on Saturday unless their production is vitally
needed. Moreover, the union offices are not open on
Saturdays.
I find that Warrenburg's unsuccessful efforts that
Saturday, morning by telephone, in the presence of
Foreman Mitchell and with his full cooperation, to contact
various, union officials for a work release on the ground
that his wife had made a timely tender of his dues,
constituted in effect an investigation by Warrenburg's
Employer into-his claimed tender as fully as if Mitchell had
himself made the telephone calls. This is manifest from the
fact that Mitchell did not roughly brush aside Warren-
burg's claim of a timely tender of his union dues but on the
contrary, gave Warrenburg every opportunity to establish
his claimed tender and right to a work release in his
presence. Mitchell could not have done better if he had
made the telephone calls himself as the results would have
been the same.
The investigation having proved abortive, Mitchell again
refused to allow Warrenburg to check in for work without
a -release from the Union. Warrenburg then left the plant
shortly after 7 o'clock that morning.2
Thereafter Warrenburg contacted the union office but
found it closed. He then tried to telephone Stammer, the
aforementioned union president, and Thomas Hanes, the
Local's grievance chairman, but their telephones rang
without response. He likewise tried to telephone the Local's
financial secretary, William T. Bowers, at his home several
times but was told each time that Bowers was out but
expected back shortly.
Finally at about noontime, that same Saturday, Warren-
burg with his wife drove to the Bowers' residence and there
in Bowers ' absence, persuaded Mrs. Bowers to allow him
to leave, with her $26 in cash for his delinquent union dues.
At some time prior to 9 a.m., Monday, December 4,
1972, the` Local accepted the union dues Warrenburg had
left with Mrs. Bowers the preceding Saturday and
authorized the Company to permit him to return to his job
as of 9 o'clock that Monday morning. Neither the
Company nor the Local was able to notify Warrenburg of
his release by telephone as he does not have a telephone at
his residence. When Warrenburg called the plant at about
1 p.m. that day to find out if he had been released, he was
informed that he had been released as of 9 o'clock that
morning. However, he chose not to return to work until the
next day, Tuesday, December 5, 1972, at his usual starting
time of 7 a.m. While at work that day, the Union delivered
a receipt to Warrenburg by hand dated December 4, 1972,
showing payment in the amount of $26 for his dues for the
months of July, August, and September 1972, and 38 cents
for application on the dues for the month of October. Thus
upon his return to work on December 5, 1972, Warrenburg
was still delinquent in his union dues for the month of
October except for 38 cents thereon and for month of
November 1972, but not sufficiently to affect his "good
standing" in the Union under the International's constitu-
tion which provides in effect as noted above that a
member's good standing is not affected unless the member
is more than 3 months delinquent in the payment of his
union dues.
Although the complaint against the Respondent Employ-
er alleges that the Company on or about December 2, 1972,
discharged Warrenburg and thereafter failed and refused
to reinstate him to his position, both of these allegations
are not true. The fact is that the Company on December 2,
1973, did not discharge Warrenburg but instead placed
him "on indefinite suspension" pursuant to its written
notice to him dated November 3, 1972, that such action
would be taken against him if he failed to correct -his
"arrearage in dues . . . on or before December 1, 1972." In
accordance with the undisputed testimony of the Compa-
ny's personnel manager , Don Noble , "indefinite suspen-
sions" are meted out only in union dues delinquency
situations "as a precaution against a- deficiency in
communication ," because it is easier to put an , employee
back on the payroll if an error has been made in his
separation from his job under an indefinite suspension
than under an outright discharge.
Similarly, the allegation that the Company "failed and
refused, and continues to fail and refuse , to reinstate"
Warrenburg "to his, former -or substantially equivalent
position of employment" is likewise not true because the
Company reinstated Warrenburg to his job as of December
4, 1972, although he chose not to report to work until
December 5, and he has been in continuous employment
with the Company ever since.
Counsel for General Counsel, recognizing that there
could be variances between the allegations of the com-
plaint and the proof, moved at the end of the trial to
conform the pleadings to the proof. The motion is hereby
granted. Accordingly the allegation of the complaint which
alleges that the Company discharged Warrenburg on or
about December 2, 1972, is deemed amended to read that
the Company placed Warrenburg on indefinite suspension
as of December 2,' 1972, and the allegation that the
Company failed to reinstate Warrenburg to his job is
entirely deleted.
It is noted that in addition to Warrenburg 12 other
members of the Union were also notified by the Union- and
the Company at the same time Warrenburg was some 30
days in advance of December 1, 1972, that unless they paid
2 Before leaving the plant, Warrenburg offered Mitchell $26 in cash to Warrenburg as an irrelevant fact as obviously Mitchell was not the agent of
hold in payment of his union dues until the following Monday or until he the Union to receive union dues or to restore Warrenburg to good standing
could straighten out the matter. Mitchell declined to take the money on the in the Union and because in any event payment of Warrenburg's dues on
ground that he could not interfere in union business. I deem this offer by Saturday would not have been a timely payment of his dues.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their delinquent dues by December 1, 1972, they would
lose their jobs and good standing'in the Union. Only 3 of
these 12 members waited as late as November 30, 1972, to
pay their dues. None waited until the deadline date of
December 1 to pay up.
Discussion and Conclusions
The issue here is whether the Respondent Employer
violated Section 8(a)(3) and (1) of the Act by temporarily
suspending Warrenburg at the request of the Union, thus
discriminating against him in regard to his tenure within
the meaning of Section 8(a)(3) of the Act.
This depends in turn under the second proviso of Section
8(a)(3) on whether at the time of the Company's suspen-
sion of Warrenburg it had "reasonable grounds for
believing" that Warrenburg at the request of the Union
was being "termmated3 for reasons other than the failure
of the employee to tender the periodic dues."
On that issue I find that the record is completely devoid
of any evidence that the Company suspended Warrenburg
for any reason other than his failure to pay his periodic
dues. For a violation of the section of the Act here under
consideration there must be some evidence that the
Employer had knowledge or notice that the Union was
requesting an employee's termination for some reason
other than the nonpayment of dues.
Counsel for General Counsel in his brief states that,
"The Board has traditionally held that statements of
employees to company officials that they tried to pay dues
and the dues had been refused by the Union constitutes a
sufficient basis for a finding that the Company had
reasonable grounds for believing that membership in the
Union was terminated for reasons other than the failure of
the employee to tender periodic dues uniformly required as
a condition of retaining membership and requires an
investigation into the allegation ." As authority for the
above summary of Board holdings, counsel for General
Counsel cites Peerless Tool & Engineering Co., 111 NLRB
853, enfd . sub nom. N.L.R.B. v. Die and Tool Makers, 231
F.2d 298 (C.A. 7, 1956), cert. den. 352 U.S. 833 (1956), and
International Union of Electrical, Radio and Machine
Workers, Frigidaire, Local 801, 129 NLRB 1379, enfd. 307
F.2d 679 (C.A.D.C., 1962), cert . den. 371 U.S. 936 (1962).
However, an examination of both the Board and Court
decisions in these two cases show that something more than
the mere "statements of employees to company officials
that they had tried to pay dues and that the dues had been
refused by the union" was involved in the holdings therein
"that the company had reasonable grounds for believing
that membership in the union was terminated for reasons
other than the failure to the employee to tender periodic
dues." In each of the two cases there are findings that the
Company had actual knowledge or notice that something
more was involved in the demands of the Unions for the
discharge of the affected employees than the mere
nonpayment of union dues . Thus in the Peerless case, the
Court affirmed the Board finding that the "Company had
knowledge of the Union's policy of refusing to accept dues
until the assessment was paid . . ." (Emphasis supplied.)
Similarly in the Frigidaire case, supra, the Court affirmed
the Board's finding that the Union's request for [employee]
Snyder's discharge was not truly predicated on his failure to
pay dues" and that his Employer knew this. (Emphasis
supplied.)
In contrast in the instant case the Company's suspension
of Warrenburg was based solely on the Union 's notice to it
of his failure to pay his periodic dues and there is no
evidence that the Respondent had "reasonable grounds for
believing" that Warrenburg was being terminated "for
reasons other than the failure to tender the periodic dues."
On the contrary , Warrenburg 's chronic delinquency in his
union dues payment gave the Company more than ample
reason to believe that the Union requested his discharge
only because of such delinquency.
The General Counsel's further dual contention that the
Company was under duty to investigate Warrenburg's
claim that he had tried to make a timely tender of his dues
and that the Company made no effort to investigate the
claim, is untenable. While it is true that Warrenburg's
foreman did not himself pick up the telephone for calls to
union officials to verify Warrenburg's claim of tender of
his dues, the Company in effect for all practical purposes
did make such an investigation when its foreman gave
Warrenburg the fullest opportunity in his presence to
contact union officials at the plant for verification of his
claim of a timely tender of his dues. Under these
circumstances , Warrenburg's investigation became the
Company's investigation. Warrenburg's efforts to reach
union officials on the Saturday here in question were
unsuccessful ; the foreman would have had the same lack
of success if he had attempted to make the calls. Thus as
the investigation proved unsuccessful, the Company had
no choice but to temporarily suspend Warrenburg pur-
suant to the Union's request pursuant to its obligation
under its collective-bargaining agreement.
Moreover, contrary to General Counsel's contention, an
employer, in the absence of an impermissible cause as here,
is not under any duty to investigate the truthfulness of a
Union's assertion that a member is delinquent in his dues
before it meets the demands of the Union for the discharge
of the member because of his delinquency. In such
circumstances , there is no requirement that the employer
must "first audit the union 's dues records" before it, can
honor a union's request that a member be suspended for
nonpayment of his dues. Producers Transport, Inc. v.
N.L.R.B., 284 F.2d 438 (C.A. 7, 1960); Zoe Chemical
Company, Inc., 406 F.2d 574 (CA. 2, 1969); Allied
Maintenance Company, 196 NLRB 566; In the latter case
the Board adopts with approval the following court
holding in the Zoe case:
Clearly some kind of specific information as to the
illegality of the union's request must be communicated
to the employer: "In order to hold the employer ...
there must at least be proof that he knew he was acting
for an impermissible cause." NLRB v. Local 138,
IUOE, 293 F.2d 187, 197 (2d Cir. 1961). Absent actual
d
3 I deem the word "suspended" to be equivalent to the word from the payroll
"terminated" as used in the Act because in either case it means separation
FMC CORPORATION 645
knowledge of some sort, the employer has no duty
independently to inquire into the circumstances behind the
union's demand (Emphasis supplied.)
In the present case General Counsel is not only
contending that the Company was under an obligation to
investigate the truthfulness of the Union's assertion that
Warrenburg was delinquent in his dues, but also to
investigate the legal sufficiency of Mrs. Warrenburg's
alleged tender of her husband's dues because that question
is inherent in the question of whether Warrenburg was
delinquent in his dues. In that connection, the Respondent
Employer makes the following contention:
Was an assistant foreman supposed to resolve all of the
questions posed by this case? If so, how should he have
done so? To do so he would have had to complete the
required education for a law degree, held a one-day
hearing of all interested witnesses, and weighed legal
arguments from both Warrenburg and the Union. Then
he would decide which witnesses to credit and which
legal theories were correct. . . . We submit that an
assistant foreman on Saturday morning is not required
to exercise such talents.
I concur in this view. Since an employer is not under any
duty to audit a union's dues records for verification of a
member's nonpayment of his periodic dues before it meets
the union's request for the suspension of the member for
nonpayment of dues, it must necessarily follow that an
employer is even less obliged to investigate and determine
the legal sufficiency of an alleged and disputed tender of
dues before it complies with a union's demand for a
member's suspension from his job for nonpayment of dues.
In summary under the circumstances of this case I find
that the Respondent Employer is not in violation of
Section 8(a)(3) and (1) of the Act by reason of its
temporary suspension of Warrenburg for nonpayment of
periodic union dues pursuant to the request of the Union.
D. Critical Events of December 4, 1972, Re
Charges Against Respondent Union
The final issue in the case is whether the Respondent
Union violated Section 8(b)(1)(A) of the Act by threaten-
ing to get Warrenburg's job on December 4, 1972, for
reasons other than failure to tender his periodic dues.
As heretofore shown, the Company, by reason of the
Union's release, was ready to return Warrenburg to work
status on Monday, December 4, 1972, at 9 a.m., following
his suspension the preceding Saturday at the Union's
request for nonpayment of dues. As Warrenburg has no
telephone at his home, he did not get word of his release
until about 1 p.m. that day when he telephoned the plant to
see if the Union had released him.
Instead of utilizing his release to return to work that
same afternoon, Warrenburg with his wife went to the
Union's office late that afternoon where he had a heated
and angry exchange with the Local's president, the
aforementioned Paul Stammer, over the circumstances of
Mrs. Warrenburg's alleged tender of his dues the previous
Friday. Stammer's credited testimony shows that Warren-
burg told him that "he was going to get somebody's ass for
costing him two days' work." In the exchange much
profane and insulting language passed between the two
men.
During the course of the fray as here pertinent to the
issue under discussion Stammer said to Warrenburg
(according to Warrenburg's own testimony), "Listen here
... you cheap son-of-a-bitch. I am going to have your job.
I sent out a notice today and I'm going to get your job."
Stammer's recollection of the colloquy was that he told
Warrenburg "that he was going to have to keep up his dues
structure, keep in good standing, or he could lose his job."
The notice Stammer told Warrenburg he had sent out to
him that day, December 4, 1972, was the Union's standard
union dues delinquency letter. Like the earlier delinquency
notice sent to Warrenburg on November 1, 1972, the
December 4 notice to him reads in part as follows:
Dear Brother;
Our records show that, as of this date, you are more
than sixty days behind in payment of your Union dues.
We must remind you, that, in accordance with the
Constitution of the United Steelworkers of America,
and the Labor Agreement between the Union and Link
Belt Division of F.M.C. Corporation; any member who
is more than three (3) months in arrears in payment of
his dues is no longer a member in good standing of this
Union and is, therefore, subject to discharge from
employment with Link Belt.
Unless your dues are paid up to date by the first of
January, 1972 we will notify the Link Belt Division of
F.M.C. Corporation that you are no longer a member
in good standing.
As Warrenburg since the trial herein has remained
chronically delinquent in the payment of his dues, the
Local has sent him notices identical with the above under
dates of January 1, February 1, March 1, and March 30,
1973.
Discussion and Conclusions
I credit Warrenburg's testimony that Stammer told him,
"I am going to have your job. I sent out a notice today and
I'm going to get your job." Although General Counsel
admits that the Union's dues delinquency "notice" alluded
to in Stammer's above heated remark to Warrenburg is
"privileged," he contends that Stammer's statement to
Warrenburg that he was going to get his job, was made "m
the context that Warrenburg was giving the Union trouble
and as a result, the Union would get his job" and that,
therefore, the Union through Stammer threatened Warren-
burg that it would get his job for a reason other than failure
to tender periodic dues in violation of Section 8(b)(1)(A) of
the Act.
I disagree. The angry remark, "I will get your job,"
cannot be considered in isolation as it was immediately
followed by the declaration that a union delinquency
notice had been sent out to Warrenburg that very day. The
plain and obvious meaning of the whole of Stammer's
utterance to Warrenburg was that he would have his job if
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not keep himself in good standing with the Union
by the payment of his periodic dues. That pronunciation is
completely privileged under the Act. There is nothing in
the record to suggest that Stammer was threatening
Warrenburg with the loss of his job except for the
nonpayment of his periodic dues.
In summary I find and conclude that there is a failure of
proof that the Respondent Union is in violation of Section
8(b)(1)(A) as alleged in Case 25-CB-1618.
Extraneous to the issues discussed above is, the signifi-
cance to be attached to the fact that the Local after the
December 1, 1972, deadline date accepted Warrenburg's
delinquent dues and released him to return to his job as of
December 4, 1972, notwithstanding the fact that he had
been expelled from the Union as of 5 p.m., December 1,
1972, for failure to make a legally sufficient tender of his
dues by that time. Stammer testified that the Union
accepted Warrenburg's late payment of his dues and
released him to return to his job because it was later
discovered that the unidentified woman who appeared at
the union offices just minutes before its closing time on
December 1, 1972, had been Mrs. Warrenburg and that her
purpose there was to pay her husband's dues although as
the record shows she had not mentioned her name or her
husband's name at the time.
General Counsel contends that, "The Union, by accept-
ing his [Warrenburg's] dues on December 4, 1972,
acknowledged and even tacitly admitted that he was never
a member in bad standing, subject to termination under
the contract."
There is no evidence of record to support such a "tacit"
admission by the Respondent Union. It appears that the
Local reinstated Warrenburg to good standing in the
Union for humane reasons although under the Internation-
al's constitution it could not do so without the agreement
of the International, just as it had formerly permitted cash
paying dues members to run as high as 5 months in arrears
in their dues although the International's constitution
requires expulsion after a 3-month delinquency in the
payment of delinquent dues. It is also possible that the
Local reinstated Warrenburg in what turned out to be the
futile hope that the reinstatement would avoid an expen-
sive law suit. But the fact that the Union allowed this
proceeding to go to trial on the merits rather than admit
violation of the Act shows that there has been no tacit
admission by the Union that Warrenburg "was never a
member in bad standing, subject to termination under the
contract."
CONCLUSIONS OF LAW
1. FMC Corporation, Link-Belt Chain and Conveyor
Components Division, the Respondent Employer herein, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local Union No. 1150, United Steelworkers of
America, AFL-CIO-CLC, the Respondent Union herein,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. The evidence does not show that the Respondent
Employer violated Section 8(a)(3) and (1) of the Act as
alleged.
4. The evidence does not show that the Respondent
Union violated Section 8(b)(2) or (1)(A) of the Act as
alleged.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, I recommend the
following recommended:
ORDER4
It is hereby ordered that the complaints herein be, and
they hereby are, dismissed in their entirety.
4 In the event no exceptions are filed as provided by Section 102.46 of Section 102.48 of the Rules and Regulations, be adopted by the Board and
the Rules and Regulations of the National Labor Relations Board , the become its findings , conclusions , and Order, and all objections thereto shall
findings, conclusions, and recommended Order herein shall, as provided in be deemed waived for all purposes.