General Dynamics Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1955

111 N.L.R.B. 1055 (N.L.R.B. 1955)

CONVAIR 1055
It has been found that the Respondent in violation of the Act failed and refused
to bargain collectively with the Union as the duly designated collective -bargaining
representative of its employees in an appropriate unit. It will be recommended that
the Respondent cease and desist from such activity and on request bargain collectively
with the Union.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent , Tennessee Coach Company, is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. Division 1490, Amalgamated Association of Street , Electric Railway and Motor
Coach Employees of America, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. All systemwide bus operators and maintenance employees of the Respondent,
excluding all office and clerical employees , terminal employees , watchmen and all
guards, professional employees , and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
4. The aforementioned Union was at all times material and now is the exclu-
sive representative of the employees in said unit for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
5. By refusing on January 8, 1954, and at all times thereafter to bargain col-
lectively with the Union as the exclusive representative of its employees in the ap-
propriate unit the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (5) of the Act.
6. By such activity the Respondent has also violated Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
CONVAIR, A DIVISION OF GENERAL DYNAMICS CORPORATION and
CHARLES E. PENSE
INTERNATIONAL ASSOCIATION OF MACHINISTS, GUIDED MISSILE LODGE
1254 and CHARLES E. PENSE. Cases Nos. 21-CA-1911 and 21-CB-
561. March 22,1955
Decision and Order
On August 23, 1954, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents 1 had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter, the Respondent
Union and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs. The Respondent Union's request for
1 At the suggestion of Convair , A Division of General Dynamics Corporation, the com-
plaint was amended at the hearing to substitute it as the Respondent Company herein in
place of Consolidated Vultee Corporation , Pomona Division , tha Respondent Company
originally named in the complaint.
111 NLRB No. 185.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
oral argument is hereby denied as the record, the exceptions and briefs,
in our opinion, adequately present the issues and the positions of the
parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exceptions, modifications, and
additions noted below.
1. The Trial Examiner found that the Respondent Company vio-
lated Section 8 (a) (3) and (1) of the Act, and the Respondent Union
violated Section 8 (b) (2) and (1) (A) of the Act, by maintaining
certain illegal provisions in the union-security section of the contract
to which they were parties during the period covered by the complaint.
He also found that the Respondents did not violate the Act because of
certain other union-security provisions in the contract in question.
We agree with the Intermediate Report in the instant connection to
the extent that it finds that the Respondents violated the Act in the
manner found by the Trial Examiner. The union-security provisions
of the contract relied upon here, which is of the maintenance-of-
membership variety, are fully set forth in the Intermediate Report .2
In brief, they require an employee who is separated from the bargain-
ing unit covered by the contract, at a time when he is a member of
the Respondent Union, to resume paying membership dues imme-
diately upon his reemployment within the bargaining unit. Thus,
an employee who quits his employment or is transferred from the
bargaining unit while a member of the Respondent Union must, as a
condition of reemployment in any capacity within the unit, resume
paying union dues even though he has resigned his union membership
in the meantime, a period during which he could not, as an employee
outside the bargaining unit covered by the contract, legally have been
required by the contract to maintain his union membership. We share
the Trial Examiner's opinion that for purposes of this case such an'
employee, upon the occasion of his reemployment, stands in the same
shoes as one being hired by the Respondent Company for the first
time, who has never been a member of the Respondent Union, and
that the existence of a contractual obligation upon an employee in that
position to pay union dues beginning with the commencement of his
employment would be plainly violative of the Act. While the evi-
dence does not indicate whether the Respondents enforced the pro-
visions in question in an unlawful manner, the Respondent Union
concedes in its brief that "In all situations except a quit, when, as, and
2 The contract provided , tinter alta, for withdrawal from the Respondent Union between
August 1 and August 15 of the currently effective yearly period.
CONVAIR 1057
if a person returned to the uliif, he was obligated to resume the pay-
ment of dues.. .." 8 It is also significant that the provisions in ques
tion were continued in a new agreement executed by the Respondent
in February 1954. On the basis of the foregoing, and the entire"
record, we find, as the Trial Examiner did, that by maintaining in
existence the unlawful provisions in question during the-critical period
herein, the Respondent Company violated Section 8 (a) (1) and (3)
of the Act, and the Respondent Union violated Section 8 (b) (1) (A)
and (2) of the Act.'
Contrary to the Trial Examiner, we find that the Respondents also,
violated the Act by maintaining in their contract the union-security
provision requiring the payment of general union assessments, in addi-
tion to initiation fees and monthly union dues, as a condition of em-
ployment.5 Such a contractual provision, threatening, as it does, loss
of employment to any employee who fails to pay union assessments,
goes beyond the permissive language of Section 8 (a) (3) of the Act
and has been held'to act as a restraint upon employees desiring to re-
frain from union activities within the meaning of Section 7 of the
Act.' Accordingly, it follows that by retaining that provision in their
contract the Respondent Company thereby violated Section 8 (a) (1)
of the Act and the Respondent Union thereby violated Section 8 (b)
(1) (A) of the Act. However, because the record shows that the Re-
spondents did not attempt to enforce the unlawful provision, and fails
to establish that they intended to utilize it during the critical period
herein,7 we do not find that the Respondents' conduct in this regard
otherwise violated the Act, as alleged in the complaint.8
2. For the reasons set forth in the Intermediate Report, the Trial
Examiner found that the Respondent Union, in causing Charles E.
Pense's discharge on January 15, 1954, violated Section 8 (b) (2) and
8 (b) (1) (A) of the Act, but that the Respondent Company, in dis-
' Member Murdock , were it not for the apparent agreement of Respondent 's representa-
tive, would seriously question the construction of the Trial Examiner of the contractual
provision in question.
4 Permanente Steamship Corporation, 107 NLRB 1111 ; Ebasco Services Incorporated,
107 NLRB 617 . That "quits " alone may have in fact , been treated as "brand new em-
ployees" by the Respondents , when rehired within the bargaining unit, as the Respondent
Union asserts in its belief, is immaterial in view of all the above. We accordingly deem
it unnecessary to reopen the record for the purpose of receiving testimony on that mat-
ter, as requested by the Respondent Union
5 The Trial Examiner , while finding this provision to be void and illegal , concluded that
it did not serve as the basis for an unfair labor practice finding.
9 See National Malleable and Steel Castings Company, 99 NLRB 737 ; The Great Atlantic
& Pacific Tea Company (Pittsburgh Bakery), 110 NLRB 918; Amalgamated Local 286,
International Union , United Automobile Workers of America, AFL, 110 NLRB 371. In
so finding we reject the waiver theory applied by the Trial Examiner in the Respondents'
favor. The provisions in the Act which guarantee employees certain rights, and outlaw
the restraint of employees in the exercise of those rights by employeis and unions , are not
subject to the qualification which the Trial Examiner would read into the Act.
4 The 1954 contract between the Respondents does not require the payment of assessments
as a condition of employment
8 Jandel Furs, 100 NLRB 1390.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging Pense at the Respondent Union's request, did not violate
the Act.
The Respondent Union contends that it requested Pense's discharge,
pursuant to the union-security section of its contract with the Re-
spondent Company, because of Pense's dues delinquency, and the Re-
spondent Company asserts that it discharged Pense, pursuant to the
aforementioned contract, at the Respondent Union's request and upon
its representation that Pense was delinquent in his dues. Even were
we to accept as true the reasons offered by the Respondents for their
conduct vis-a-vis Pense, it is plain, as the complaint alleges, that the
action by each of them must be held violative of the Act, unless it was
protected by a valid union-security clause . It is therefore necessary
to inquire into the validity of the Trial Examiner's finding, to which
the General Counsel has excepted, that a valid union-security clause
providing for the payment of union dues as a condition of employment
was in effect at the time of Pense's discharge."
As already noted, there are provisions in the union-security section
of the relevant contract which exceed the limited form of union secu-
rity permitted by Section 8 (a) (3) of the Act. In the Trial Examin-
er's opinion, however, those provisions are severable from, and do
not taint, the requirement in the same section for the payment of
initiation fees and monthly dues as a condition of employment, thus
leaving that portion of the union-security section of the contract
available as a defense to a discharge for nonpayment of dues. We are
unable to accept this view of the contract by the Trial Examiner. All
the provisions in question are related in character and are integral
parts of the union-security arrangement devised by the Respondents.
Viewing the union-security section of the contract as a whole, we
find that the lawful requirements therein 10 are so interwoven with
the unlawful ones as to be tainted with illegality themselves. For
this reason , we find that no valid union-security clause is available as
a defense to the discharge of Pense.11
Accordingly, we find that the Respondent Company discriminato-
rily discharged Pense in violation of Section 8 (a) (3) and 8 (a) (1)
e In view of this holding, the Trial Examiner found it necessary to decide whether
1, ense 's nonpayment of dues entered into the Respondent Union's request for his discharge
and concluded , as in effect alleged in the complaint , that it did not. The Trial Examiner
accordingly found that the Respondent Union violated the Act as noted above. As for
the Respondent Company, the complaint alleges only that it violated the Act by discharg-
ing Pense at the Respondent Union's request at a time when no valid union-security pro-
vision was in effect justifying such conduct.
10 The requirement for the payment of initiation fees and monthly dues is, of course, a
valid one when considered in isolation.
"Local 803, International Brotherhood of Boilermakers , Iron Shnp Builders and Helpers
of America, AFL, 107 NLRB 1011. See also such cases as John Deere Planter Works of
Deere it Company, 107 NLRB 1497, and International Ilaiveste- Company, 95 NLRB 730,
wherein the Boaid held union-secutity clauses, otheiwise valid, to be illegal because they
required the payment of general union assessments as a condition of employment.
CONVAIR 1059
of the Act , and that the Respondent Union caused Pense 's discharge
in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.la
THE REMEDY
Having found that the Respondents engaged in the unfair labor
practices set forth above, we shall order that they cease and desist
therefrom and that they take certain affirmative action designed to
effectuate the policies of the Act.
1. We have found that the Respondent Company discriminated
against Charles E. Pense and that the Respondent Union caused such
discrimination. We shall order that the Respondent Company offer
Pense immediate and full reinstatement to his former or a substan-
tially equivalent position, without prejudice to his seniority or other
rights and privileges.13 With the exception noted hereinafter, we
shall also order that the Respondent Company and the Respondent
Union jointly and severally make Pense whole for any loss of pay
suffered as a result of the discrimination practiced against him. Be-
cause the Trial Examiner did not find that the Respondent Company
discriminated against Pense, we shall not hold the Respondent Com-
pany accountable for any back pay which accrued during the period
between the issuance of the Intermediate Report and our Decision
and Order. In the circumstances, we believe that the policies of the
Act will best be effectuated by ordering the Respondent Union to
assume full liability for the back pay accruing to Pense during this
period.14 Back pay shall be computed in a manner consistent with
the Board's policy set forth in F. W. Woolworth Company.l5
We shall also order the Respondent Company to make available to
the Board, upon request, payroll and other records to facilitate the
checking of the amount of back pay due. In addition, we shall direct
that the Respondent Union, in writing, notify the Respondent Com-
pany, and furnish copies to the employee involved, that it has no
objection to the employment of Pense. The Respondent Union shall
not be liable for any back pay accruing after 5 days from the date of
such notices are given.
2. In view of our finding that the Respondents violated the Act by
maintaining in existence illegal union-security provisions, certain of
12 In view of our disposition of this aspect of the ease, we deem it unnecessary to pass
upon the validity of the Trial Examiner's pretext finding.
13 Alleged copies of certain correspondence between the parties herein submitted to the
Board subsequent to the issuance of the Intermediate Report indicate that the Respondent
Union has notified the Respondent Company and Pense that it has no objection to the
Respondent Company's reemployment of Pense and that the Respondent Company has
made an offer of employment to Pense, which was rejected However, as these are not
facts established in the record itself, we shall issue our usual remedial order, leaving such
matters to the compliance stage of this proceeding.
14 Cf. Utah Construction Co, 95 NLRB 196, and Pacific American Shipowners Associa-
tion, Ct al ., 98 NLRB 582.
15 90 NLRB 289
344056-55-vol. 111 68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which were included in the 1954 agreement between the-Respondents,16,
we shall order the Respondents to cease and desist from agreeing to,
continuing in force, or giving effect to union-security provisions not
authorized by Section 8 (a) (3) of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor'
Relations Board hereby orders that :
1. The Respondent, Convair, A Division of General Dynamics Cor-
poration, its officers, agents, successors, and assigns, shall:
a. Cease and desist from : -
(1) Agreeing to, continuing in force, or giving effect to illegal
union-security provisions in any collective-bargaining agreement with
International Association of Machinists, Guided Missile Lodge 1254.
(2) Encouraging membership in International Association of
Machinists, Guided Missile Lodge 1254, or in any other labor organi-
zation of its employees, by discriminating as to its employees in regard
to their hire or tenure of employment, or any term or condition of
their employment.
(3) In any other manner interfering with, restraining, or coercing
its 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 condi-
tion of employment as authorized by Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Offer to Charles E. Pense immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges.
(2) Jointly and severally with International Association of
Machinists, Guided Missile Lodge 1254, make Charles E. Pense whole
for any loss of pay he may have suffered by reason of their discrimina-
tion against him, in the manner set forth in the section entitled "The
Remedy."
(3) Upon request, make available to the Board or its agents, for
examination and copying, all pertinent records necessary to analyze
the amount of back pay due under this Order.
(4) Post in conspicuous places at its place of business in Pomona,
California, in all locations where notices to employees are customarily
posted, copies of the notice attached hereto and marked "Appendix
16 Except for the fact that the payment of general assessments is not made a condition
of employment, the union -security provisions of the 1954 contract are the same as those
in the contract before us.
CONVAIR 1061,
A." 17 Copies of said notice, to be furnished by the Regional Director
for the Twenty-first Region, shall, after being duly signed by the
Respondent Company's representative, be posted immediately upon
receipt thereof, and be maintained by it for a period of at least sixty
(60) consecutive days thereafter. Reasonable steps shall be taken by
the Respondent Company to insure that said notices shall not be al-
tered, defaced, or covered by any other material.
(5) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith,
2. The Respondent, International Association of Machinists, Guided
Missile Lodge 1254, its officers, agents, successors, and assigns, shall :
a. Cease and desist from :
(1) Agreeing to, continuing in force, or giving effect to illegal
union-security provisions in any collective-bargaining agreement with
Convair, A Division of General Dynamics Corporation, its officers,
agents, successors, or assigns.
(2) Causing or attempting to cause Convair, A Division of General
Dynamics Corporation, its officers, agents, successors, and assigns, to
discriminate against Charles E. Pense or any other employee in viola-
tion of Section 8 (a) (3) of the Act.
(3) In any other manner restraining or coercing employees of Con-
vair, A Division of General Dynamics Corporation, its successors or
assigns, 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 agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
b. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(1) Jointly and severally with Convair, A Division of General Dy-
namics Corporation, make Charles E. Pense whole for any loss of pay
which he may have suffered by reason of their discrimination against
him, in the manner set forth in the section entitled "The Remedy."
(2) Notify the Respondent Company and Charles E. Pense, in
writing, that it has no objection to the employment of Pense and that
it will not in the future request the discharge of said Pense or any other
employee for a reason other than a failure to tender monthly union
clues or initiation fees uniformly required to acquire or maintain mem-
bership in the Respondent Union as a condition of employment, under
an agreement authorized by Section 8 (a) (3) of the Act.
(3) Post at its offices and meeting halls in Pomona, California,
copies of the notice attached hereto and marked "Appendix B." 18
11 In the event that this Order is enforced by 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."
18 Ibid.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by an authorized
representative of the Respondent Union, be posted by it immediately
upon receipt thereof, and be maintained by it for a period of at least
sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent Union to insure that
such notices are not altered, defaced, or covered by any other material.
(4) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto as Appendix B, for posting,
the Respondent Company willing, at its place of business at Pomona,
California, in places where notices to employees are customarily posted.
Copies of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being signed as provided in the pre-
ceding paragraph of this Order, be forthwith returned to the Regional
Director for posting.
(5) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT agree to, continue in force, or give effect to illegal
union-security provisions in any collective-bargaining agreement
with International Association of Machinists, Guided Missile
Lodge 1254.
WE WILL NOT encourage membership in International Associa-
tion of Machinists, Guided Missile Lodge 1254, or in any other
labor organization of our employees, by discriminating against
our employees in regard to their hire or tenure of employment, or
any term or condition of their employment.
WE WILL NOT in any other manner interfere with, 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 by Sec-
tion 8 (a) (3) of the Act.
WE WILL offer to Charles E. Pense immediate and full rein-
statement to his former or substantially equivalent position with-
CONVAIR 1063
out prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining members in good standing in the above-named
Union or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section 8
(a) (3) of the Act.
CONVAIR, A DIVISION OF GENERAL
DYNAMICS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF
MACHINISTS, GUIDED MISSILE LODGE 1254
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 agree to, continue in force, or give effect to illegal
union-security provisions in any collective-bargaining agreement
with Convair, A Division of General Dynamics Corporation, its
officers, agents, successors, or assigns.
WE WILL NOT cause or attempt to cause Convair, A Division of
General Dynamics Corporation, its officers, agents, successors,
and assigns, to discriminate against Charles E. Pense or any
other employee in violation of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of Convair, A Division of General Dynamics Corporation, its suc-
cessors or assigns, in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section 8
(a) (3) of the Act.
WE WILL notify the above-named Corporation, in writing, and
furnish a copy of such notification to Charles E. Pense, that we
have no objection to his employment by said Company.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make Charles E. Pense whole for any loss of pay suf-
fered as a result of the discrimination against him.
INTERNATIONAL ASSOCIATION OF MACHINISTS,
GUIDED MISSILE LODGE 1254,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title) '
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by Charles E. Pense against Consolidated Vultee Aircraft
Corporation , Pomona Division , now known as Convair , A Division of General
Dynamics Corporation ,' herein called the Company , and against International Asso-
ciation of Machinists , Guided Missile Lodge 1254, herein called the Union, a con-
solidated complaint was issued on April 30, 1954, by the Acting Regional Director
for the Twenty-first Region of the National Labor Relations Board , herein called
the Board , on behalf of the General Counsel for the Board , alleging violations by the
Company of Section 8 (a) (1) and ( 3), and by the Union of Section 8 (b) (1) (A)
and (2 ) of the National Labor Relations Act, as amended , 61 Stat. 136, herein
called the Act . The respective Respondents were served with copies of the charges
against them, copies of the complaint , and notice of hearing.
In substance the complaint alleges that : ( 1) During the period from August 1,
1953 , to about February 1, 1954 , the Company and the Union continued in effect
a certain union-security provision of a previously concluded collective -bargaining
agreement making payment of assessments by the Union , in addition to initiation fees
and dues, a condition of employment , and requiring as a condition of employment
of certain employees membership in the Union prior to the 30th day following the
beginning of their employment or reemployment in a job within the bargaining
unit and prior to the 30th day following the effective date of the contract ; ( 2) about
December 1, 1953, the Union canceled the membership of Charles E. Pense in the
Union purportedly for being more than 3 months' delinquent in payment of union
dues and refused from January 14, 1954, to reinstate him to membership although
the Union had, from September 1, 1953, to about January 1, 1954, failed to cancel
the membership of other employees of the Company who were more than 3 months'
delinquent in dues and during the period from about December 1, 1953, to about
February 1, 1954, reinstated to membership other employees of the Company who
were delinquent in dues payments for more than 3 months; ( 3) this disparity of
treatment between Pense and other employees was due to the fact that Pense had
assisted other employees of the Company to prepare , in accordance with the pro-
vision of the contract then in effect between the Union and the Company , revocations
of previously given authorizations to deduct union dues, initiation fees, and assess-
ments from their pay; (4 ) about December 7, 1953, the Union requested and
demanded that the Company discharge Pense allegedly for having forfeited his
membership for delinquency in payment of dues; and ( 5) the Company on about
January 15 , 1954, acceded to the Union 's request and discharged Pense and there-
after , on the Union 's request and demand , refused to reinstate Pense for the sole
reason that the Union had requested and required his discharge.
The answer of the Union , dated June 1, 1954 , in substance admitted the alleged
union-security provisions in the contract , admitted that it had requested the dis-
charge of Pense in accordance with the terms thereof, but denied that it had per-
sisted in a demand that the Company decline to reinstate and reemploy Pense for
any reason and in general denied the alleged unfair labor practices . The answer of
The complaint was amended on motion made and granted at the hearing to reflect the
change in the name of the Respondent Corporation . It is now known as Convair , A Divi-
sion of General Dynamics Corporation, but as all the records of the case have been set
up under the original name, I have retained the original caption for convenience.
'CONVAIR 1065
the Company, dated July 9, 1954, admitted that, at the Union's request, it had on
January 15, 1954, discharged Pense upon the Union's representation that Pense
had declined and failed to pay dues required under the terms of the aforesaid union-
security clause of the contract, and that it had since that date refused to reinstate
Pense for the same reason. The Company's answer denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held at Los Angeles, California, on July 12 and
13, 1954, before me as the duly designated Trial' Examiner. The General Counsel
and the Company were represented by counsel, and the Union was represented by
its grand lodge representative. All participated in the hearing and were afforded
full opportunity to examine and cross-examine witnesses and to introduce evidence
bearing upon the issues. At the opening of the hearing the Company made a motion
to substitute the name of General Dynamics Corporation for that of Consolidated
Vultee in the pleadings and the motion was granted. At the close of the hearing
the Union made a motion to dismiss the complaint as to it. Ruling was reserved
and is now denied for the reasons stated herein. Time was granted within which to
file briefs. Briefs were received from the General Counsel and the Union and have
been considered.
From my observation of the witnesses, and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Consolidated Vultee Aircraft Corporation for a number of years up to April 30,
1954, was primarily engaged in the manufacture, development, design, and sale of
military and commercial aircraft, missiles, aircraft parts, and accessories. The gen-
eral offices of Consolidated Vultee Aircraft Corporation were located at San Diego,
California, with manufacturing divisions located in that city, in Pomona, California,
Fort Worth, and Daingerfield, Texas.
Effective as of the close of business on April 30, 1954, Consolidated Vultee Air-
craft Corporation, a Delaware corporation, merged with and into General Dynamics
Corporation, a Delaware corporation, the surviving corporation being known by the
latter name. This merger was effected in accordance with the statutes of the State
of Delaware and resulted in the transfer of all Consolidated Vultee Aircraft Corpora-
tion rights, privileges, business, property, assets, etc., to, and the assumption of all
Consolidated Vultee Aircraft Corporation obligations and liabilities by, General
Dynamics Corporation. Following the aforesaid merger, the activities and business
of Consolidated Vultee Aircraft Corporation were, by resolution of the board of
directors, designated as "Convair, a Division of General Dynamics Corporation,"
hereinafter called Convair, or the Company. The activities and business of Convair
continued uninterrupted after the merger in the same way as before. The general
offices of Convair continued to be located at San Diego, California, and so far as
the subject matter of this action is concerned the various operating divisions of
Convair continue in all respects the same.
Convair's Pomona division, between January 1, 1954, and June 30, 1954, pur-
chased raw materials and supplies valued in excess of $5,000,000. More than 75
per cent of such raw materials and supplies were purchased from suppliers located
outside the State of California and were shipped by said suppliers to Convair at
Pomona, California. During the same period of time sales of said Pomona division
exceeded the value of $18,000,000. Approximately 99 percent of such sales were
made to the United States Government and ultimately were shipped outside the State
of California. The Company concedes and I find that it is engaged in commerce
within the meaning of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Company and representing such employees in collective bargaining with the
Company.
III THE UNFAIR LABOR PRACTICES
A. The union-security clause
In the collective-bargaining contract between the Union and the Company in
effect at all times during the period covered by the complaint was article XIV, which,
in part , reads as follows:
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNION SECURITY
Section 1 . Any employee within the bargaining unit who, on the effective
date of this agreement , is a member of the Union in good standing , and each
employee within the bargaining unit who thereafter becomes a member of the
Union shall pay while on the Company 's active payroll and a member of the
Union, initiation fees, monthly dues and general assessments levied by the
International Association of • Machinists , Guided Missile Lodge No. 1254, in
accordance with the constitution and by-laws of the Union as a condition of
employment while in the bargaining unit, provided that in no event shall the
initiation fee, monthly dues or general assessment exceed the amount specified
in the constitution and by-laws ; and each employee who , after the effective date-
of this agreement , is separated from the bargaining unit and who at such time
is subject to the provisions of this section shall, upon rehire within the bar-
gaining unit, again pay regular dues to the Union commencing with the date of
rehire, provided , further, that any employee may withdraw from membership
in the Union by notifying the Union and the Company by registered mail, post-
marked between August 1 to August 15 of the then currently effective yearly
period.
Section 2 . No employee , as a condition of employment while in the bargain-
ing unit, shall be required to pay while on the Company's active payroll any
Union membership dues, fees or general assessments covering any period dur-
ing which the employee was not in the bargaining unit or was not on the Com-
pany's active payroll.
Section 3 . Any employee subject to the provisions of Section 1 above, who is
thereafter separated from the bargaining unit, shall upon his re -employment
in a job within the bargaining unit again pay membership dues to the Union
in accordance with Section 1 above, unless such employee has withdrawn from
membership with the Union in accordance with this Article.
It is contended by the General Counsel that the foregoing union-security provision
is illegal and void because ( 1) it includes the requirement of payment of general
assessments in addition to initiation fees and dues as a condition of employment,
and (2 ) it requires membership in the Union as a condition of employment of cer-
tain employees prior to the 30th day following the date of employment or reemploy-
ment and prior to the 30th day following the effective date of the contract.
With respect to the first contention , it was stipulated that the Union had never re-.
quested the Company to deduct any amount from the pay of any employee covering
a general assessment and that the Union had never requested the Company to enforce
by discharge or otherwise the provisions of section XIV so far as they refer to the
payment of general assessments . The determination of the legality of a contract
does not, of course, depend upon whether or not anything illegal has been done in
performance of it . A provision of an agreement which requires in the future the
relinquishment of a right guaranteed in Section 7 of the Act may be just as illegal
as one which requires a present relinquishment . But to say that the language is il-
legal, and hence , void, is not necessarily equivalent to. saying that the use of the
language was the commission of an unfair labor practice. Section 8 (a) (3) re-
quires a discrimination as an element of the unfair labor practice and not the bare
potentiality of one. The mere existence of a setting in which a discrimination could
occur upon the occurrence of another event-the levying of an assessment-does
not, itself , constitute discrimination. Section 8 (b) (2), on the other hand, does
not require that there be an actual discrimination as proof of the unfair labor prac-
tice there covered . It is sufficient that there be an attempt to cause discrimination.
But does the mere inclusion of the word "assessments" in the union-security clause
constitute an attempt to cause such discrimination ? The verb "attempt" is defined, in
Webster's dictionary : "To make trial or experiment of; try; endeavor to do. . "
The use of the word "assessments" in the contract prepares the foundation for the
attempt, but the act constituting the endeavor is lacking . In those cases where the
Board has found unfair labor practices by the employer and union in the very exe-
cution of an unauthorized union -security agreement , it may be noted that the inter-
ference, restraint , and coercion and likewise the discrimination occurs the moment
the contract is executed , because the contract applies to certain employees , if not all,
requiring that they immediately (or within less than the statutory grace period re-
quired to be given ) do something that Section 7 of the Act guarantees they shall be
free to refrain from doing .2 It may be argued that, in those cases where employees,
2 E g, New York State Employers Association, Inc., 93 NLRB 127 and cases there cited ;
Heating, Piping and Acr Conditioning Contractors , etc., 102 NLRB 1646.
CONVAIR 1067
under a union -shop clause, are given a grace period which is shorter than the one
required by the Act, the contract has future rather than immediate application, but
its execution is, nevertheless , held to be a violation of Section 8 (a) (1) and (3) and
of 8 (b) (1) (A) and (2) of the Act; so the mere fact that the requirement for pay-
ment of assessment in the instant contract is future rather than present should not
distinguish the case. It is not the futurity of application of the agreement alone
which distinguishes the present case. Rather it is the fact that employment cannot
be affected, and employees will not be required to do that which they have a right to
refrain from doing, unless a certain condition occurs which is not certain to occur.
Lapse of time alone is certain to occur; the levying of an assessment is not. The
complaint alleges that the use and continuation of the word "assessments" in the
union-security clause constituted a violation not only of Section 8 ( a) (3) and 8
(b) (2) but also of Section 8 (a) (1) and 8 (b) (1) (A) of the Act by the Com-
pany and the Union, respectively. Without the levying of an assessment, what co-
ercion is there? The language alone exerts no compulsion on employees as does a
contract requirement of membership within 30 days as a condition of employment.
Until the levying of an assessment no employee is compelled to do anything which,
under Section 7 of the Act, he has a right to refrain from doing. But wholly aside
from the conditional aspects of the assessment , the provision for payment of assess-
ments may be found to be no unfair labor practice . Employees here are not required
to join the Union with payment of assessments held over their heads as a condition
of employment . The main purpose of the union -security clause here is maintenance
of membership , where initial membership is voluntary , rather than closed or union
shop, where it is not. It has been decided that no unfair labor practice occurs when
an employee , who is already a union member at the time he is hired , is required, with-
out grace period, to remain a member for the life of a maintenance -of-membership
contract . 3 Obviously an employee may, by his voluntary act, relinquish his right to
refrain from engaging in the activities enumerated in Section 7 of the Act. Thus,
as an employee is not compelled to join the Union here, he may, by his voluntary act
of joining , waive the protection he otherwise might have had.
I am not aware of any unfair labor practice case precisely like the one at hand,
and I am not convinced that such cases as deal with the kind of unauthorized lan-
guage involved here are controlling . The General Counsel cites several representa-
tion cases in his brief which hold that the requirement of payment of union assess-
ments as a condition of employment goes beyond the scope of union-security clauses
permitted by Section 8 (a) (3) of the Act and renders the contract illegal . Because
of such illegality , the Board will not permit the contract to be a bar to an election.4
The Act does not specifically authorize the requirement of payment of assessments
as a condition of employment . In this sense it is illegal . But the use of the language
alone is not a crime , a tort, nor in my opinion , an unfair labor practice . I find, there-
fore, on the facts of this case , that no unfair labor practice was committed by the
Company or the Union by virtue of the inclusion of assessments in addition to dues
and initiation fees in the language of the contract . By the agreement of February 1,
1954, the requirement of payment of assessments was removed ; so, except to the extent
that the problem arises in connection with the discharge of Pense, the matter is rela-
tively unimportant.
With respect to the second contention-that the union-security clause is illegal
and void because it requires as a condition of employment, in respect to certain em-
ployees of the Company, membership in the Union prior to the 30th day following
the beginning of their employment or reemployment and prior to the 30th day follow-
ing the effective date of the contract-it will be noted that the union security here
provided for is maintenance of membership rather than a union shop . By this agree-
ment no one is obliged to join the Union who has not already done so, or does not,
during the term of the agreement, do so voluntarily. Ever since the Krause Milling
case ,5 it has been settled law that, as to existing union members , it is not necessary
to provide, in the union-security clause, a 30-day escape period after the effective
date of the contract. Since the 30-day requirement of the Act applies only to new
employees , then, it becomes a question as to whether , in this case , new employees
have been afforded this protection . As this is a maintenance -of-membership rather
than union -shop provision , employees never before employed would , of course, be
subject to the union-security clause only if they voluntarily joined the Union; so they
3 Wagner Iron Works, 94 NLRB 446.
4lnternational Harvester Co, 95 NLRB 730; Continental Can Co, Inc , 98 NLRB 1252;
National Malleable and Steel Castings, 99 NLRB 737; John Deere Planter Works of Deere
and Company, 107 NLRB 1497
5 Charles A. Ki ause Milling Co., 97 NLRB 536
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are not required to join as a condition of employment s The only serious question
involved in this second contention , therefore , concerns the requirement of article
XIV of the contract that an employee who, being a member of the Union on leaving
the bargaining unit , shall, upon reemployment in it later , pay dues thereafter dur-
ing the term of the contract unless he has withdrawn from the Union in the one
way, and at the one time, specified in the article-that is, by notifying the Union
and the Company thereof by registered mail, postmarked between August 1 and 15
of the then currently effective yearly period. It is possible that the parties were
contemplating only the case of employees who are transferred from the Pomona'
division to another division where they transfer their membership to a different
lodge of the same parent organization and who are still members of the same parent
organization at the time they are retransferred to the unit covered by the contract.
The language of the agreement, however, is broad enough to cover a number of
other situations. For example, an employee might resign from employment at some
time other than between August 1 and 15 and might at that time notify the Union
of his intent to withdraw from membership in the Union or, having resigned from
employment, he might thereafter permit his membership to be automatically extin-
guished by failure to pay dues for 3 consecutive months in accordance with the
Union's bylaws. Being no longer an employee, he is not covered by the contract
and may withdraw his membership other than by the way provided by the contract.
Even if an employee who is transferred by the Company from the unit here involved
to another division retains his membership in the Union 's parent organization at the
time of transfer, he might thereafter resign from employment and terminate his
membership, or, continuing in employment in another division of the Company
withdraw from the Union while so employed. There is no evidence that a main-
tenance-of-membership agreement between the Company and a local of the Union's
parent organization applied to each division to which an employee might be trans-
ferred. But even if there were, the employee might withdraw from the Union hav-
ing such agreement, in accordance with the terms of the latter agreement. These
terms, so far as it appears, would not necessarily be the same'terms as those stated
in the agreement here involved. And certainly there would be no reason to notify
the Union after the employee had transferred his membership to another local.
Hence, the employee might have withdrawn properly from the Union's parent or-
ganization and local at the place where he was employed and, being thereafter a
nonunion employee, be transferred back to the unit here involved where he would
again be obliged, under the terms of the contract under consideration to join the
Union at once because he was a member when he left the unit and did not withdraw
from the Union in accordance with the provisions of article XIV of the contract
under consideration An employee who, after terminating his membership in one
of several ways indicated above, and who is reemployed by the Company within the
bargaining unit while the contract, or an automatic extension of it, is, in effect, in
the same situation as any new employee who is not a member of the Union. If a
new employee is required to become a member of the Union, he must, under the
Act, be given no less than 30 days from the date of his employment to join the Union.
The same applies to transferees who are not union members. It may be argued that
the requirement of section 3 of article XIV of the contract is not one for union
membership. The language is, ". . . shall again pay membership dues to the Union
in accordance with Section 1 above.. . Membership dues are normally payable
only by members. Section 1 of article XIV of the contract requires dues payment
to be made only by members. I construe the contract therefore, as meaning that
employees who were members of the Union when they left the unit must again be-
come members of the Union upon reemployment in the unit, without exception and
without the statutory 30-day grace period, as a condition of employment. This pro-
vision does not conform to the requirements of Section 8 (a) (3) of the Act. There
is evidence that employees were in fact transferred and that transferees made appli-
cation to join the Union. It does not appear whether all the applications were for
transfer alone or for new membership. In the latter case, so long as this clause
existed in the contract, it cannot be determined that they joined the Union volun-
tarily. The tendency of the language is to compel membership. But even if the
intent is merely to compel payment of union dues without requiring membership of
such employees, the provision would still violate the Act, for it would coerce em-
ployees into doing that which under Section 7 of the Act they would have a right
9 Article XIV does not specifically refer to employees who, at the time they are hired,
are already members of the same parent organization. But if they are required to transfer
their membership to the Union and thereafter maintain it for the life of the contract, the
agreement would not be illegal as to them Wagner Iron Works, 94 NLRB 446.
CONVAIR 1069
to refrain from doing. Hence, I find that by maintaining this provision in the agree-
ment for the period of time covered by the complaint,7 the Company has discrimi-
nated in regard to hire and tenure of employment of employees in violation of Sec-
tion 8 (a) (3) of the Act, and the Union, by causing such discrimination, violated
Section 8 (b) (2) of the Act. By the same conduct, the Company violated Section
8 (a) (1) of the Act and the Union violated Section 8 (b) (1) (A) of the Act.
B. The discrimination against Pense
Charles E. Pense had been employed by the Company in San Diego, California,
on March 9, 1951. He was transferred to the Pomona division on January 19, 1953,
where he continued to be employed until the date of his discharge as hereinafter
related. He was a member of the Union from about October 1, 1952, until the
time he was automatically dropped from membership for nonpayment of dues in De-
cember 1953. Before he was transferred from San Diego, he had been a shop com-
mitteeman for the Union for a few months, and shortly after his transfer to Pomona
he became a shop committeeman there until some time after August 1, 1953, when
he ceased paying his union dues.
Section 4 of article XIV of the contract provides that an employee may have his
initiation fee, dues, and general assessments deducted from his pay if he desires by
executing an authorization therefor. Following section 7 of said article is given the
language of the authorization, which in its terms states the several ways in which
the authorization may be canceled, one being by "written notice to the Company,
copy to the Union, . . . by registered mail dated by U. S. Post Office cancellation
between August 1 . [and] August 15 of the then currently effective yearly
period." It will be noticed that this period is the same as that for withdrawing from
the Union.
On August 1, 1953, Pense borrowed a typewriter in the plant and typed the follow-
ing letter:
CONSOLIDATED VULTEE AIRCRAFT CORP.,
Guided Missile (Pomona) Division
Pomona, California
GENTLEMEN: Please accept this as your authority to discontinue payroll de-
duction of union dues from my weekly pay check effective as of August 1, 1953.
This is in accord with article 14 section "C" of our current working agree-
ment 8 and a copy of this notice is being forwarded to union headquarters,
Pomona, California.
He mailed this to the Company and sent a copy to the Union, both by registered
mail.
While Pense was typing his letter, several employees looked over his shoulder, read
what he was typing, and asked questions about it. Some asked to borrow a copy of
it so that they might write similar letters. Those who could use the typewriter typed
their own letters. A few who were unable to type asked Pense to do it for them,
and he did.
As there was, at this time, another union seeking to establish itself in the plant,
as quite a number of members canceled their dues deduction authorizations or mem-
berships, and as some of the employees who had copied Pense's letter apparently
believed they were withdrawing from the Union instead of just canceling their dues
deduction authorization, the Union was displeased with Pense's action, and members
in his department undertook to choose a new shop committeeman to replace Pense.
Having heard rumors of Pense's action, Union President Hobb reported the matter
to Angelo Ursino, grand lodge representative and business agent of the Union, for
investigation.
Section 14 of article E of the constitution of the Union's parent organization pro-
vides that delinquency for 3 months in the payment of dues or assessments results
automatically to cancel membership. Section 15 thereof provides in part:
Any person whose membership has been cancelled may be reinstated to mem-
bership, but the application for reinstatement must be made to the L. L. [local
lodge] under whose jurisdiction the applicant is working, and the regular rein-
statement fee of such L. L. must be paid.
7 The same provision appears in the 1954 agreement.
8 There is no section "C" of article XIV of the contract, as such The reference Is to
the paragraph of the authorization form quoted In that article which lists three ways
in which the authorization may be canceled. The third, In paragraph "C," Is by the kind
of notice given by Pense
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pense's dues fell in arrears for more than 3 months on December 1, 1953. Under
date of December 7, 1953, the Union wrote a letter to the Company notifying it
that Pense and another employee, by name of D. M. Ainsworth, "have not com-
plied with said contract, as a Condition of Employment," and the "union will await
your compliance to the above subject set forth." The letter referred to, under the
address, stated its subject to be "Union member in violation of Article XIV Section 1,
as a condition of employment." Presumably the foregoing letter was deemed not
specific enough, for on December 17, 1953, the Union again wrote to the Company,
this time as follows:
The International Association of Machinists Guided Missile Lodge #1254 is
hereby notifying Consolidated Vultee Aircraft Corp., Pomona Division, co-
signers of the present contract between the Union and the company, that former
Union Members, D. M. Ainsworth, Department 25, Clock Number 10341 and
C. E. Pense, Department 27, Clock Number 70053, are not in compliance with
Article XIV of our Agreement in that they have been dropped from membership
of our Association because of non-payment of dues in accordance with the
Constitution and By-Laws of our Union.
We therefore, request the company to immediately terminate the above em-
ployees in accordance with the terms of our Agreement.
On January 7, 1954, Pense, still employed, went to David Provan, his successor as
shop committeeman, and asked how much it would take to straighten up his dues.
Provan figured that Pense owed $17.50 for 5 months' dues, including January's.
Pense gave Provan a check for the amount, but Provan said he was not sure that
he could accept it. Provan asked how Pense came to get into this difficulty. Pense
replied that he did not have the money. Provan expressed disbelief. The latter
then telephoned John King, the Union's financial secretary, informed him that he
had a check from Pense for dues and asked if he could accept it. King told Provan
to return the check because Pense had already been dropped from membership and
would have to apply for reinstatement. Later on the same day, Pense went to King
at the Union's office, told him of his financial difficulties, procured an application
for membership, filled it out by hand, and gave it to King. To the application form
is attached a checkoff authorization with a perforation between to facilitate separa-
tion. Pense tore off the checkoff authorization before handing the application to
King with a tender of his check for $17.50. King took the application but refused
to take the check.
Believing that the Union might react unfavorably to an application without a
checkoff authorization and believing also that he should offer an explanation of his
previous revocation of his dues-deduction authorization, Pense, on January 11, 1954,
wrote a letter to Ursino, the Union's business representative, explaining his financial
difficulties and the incident of employees' copying the revocation of his authoriza-
tion for dues deduction and requesting Ursino's help He enclosed a new, typed
application, this time with the dues deduction authorization filled out,9 and requested
that Ursino submit it to the members of the Union. This letter was delivered in
due course of mail to the office of the Union for Ursino. The evidence is in dispute
as to whether or not Ursino saw this letter before Pense's application was acted upon.
Ursino testified that he did not receive the letter until after the membership meeting
on January 14 when applications were passed on. He likewise testified that no ap-
plication was enclosed with the letter. He testified that he did not mention receipt
of Pense's letter until a few days after receiving it, when he commented to King
that the letter which King had handed him the previous Thursday night, January 14,
was a letter from Pense, that "There's quite a story involved in it . . . There isn't
a thing I can do about it." But he did not, according to his testimony, give King
the letter or application However, the application which went before the mem-
bership on January 14 was the typed application which Pense testified he enclosed
with his letter and not the one filled in by hand in King's presence. Contrary to
Ursino's testimony, I find that the application was enclosed with Pense's letter and
that in some manner it came into the possession of King before the January 14
meeting.
Applications for membership customarily go through the hands of a screening com-
mittee, which make recommendations thereon However, the applications of Ains-
worth and Pense, then in possession of Financial Secretary King, were brought up
at a meeting of the Union's executive board held an hour before the membership
meeting on the evening of January 14. Before the executive board meeting, Ursino
had arranged with John Hobb, president of the Union, for Ainsworth to appear in
9 According to Pense's testimony, which I credit on this, be dated the new application
with the same date as his handwritten one, January 7
CONVAIR 1071
person before that board to plead his cause for readmission to the Union. After hear-
ing Ainsworth, the committee voted to recommend his application. Hobb then asked
the committee what action they wished to take on Pense, commenting on his conduct
at the time of typing his letter revoking his dues deduction authorization. The com-
mittee voted to reject Pense's application. King attached their recommendations
to the applications and took them, with a number of new applications, to the mem-
bership meeting. No member of the screening committee was present at the execu-
tive board meeting. No testimony was given to show whether or not the screening
committee saw the applications before the membership meeting, but on the back of
Pense's application appears the signature of the chairman of that committee, with
the date January 14, 1954, under a recommendation that Pense's application be
rejected. At the membership meeting that night, King read the applications and
recommendations of the executive board to the members. Apparently no comment
was made about any action of the screening committee. Business Representative
Ursino, at his request, was given time to speak on behalf of Ainsworth. A vote
was then taken and carried to accept all applications except that of Pense. This
was treated as a rejection of Pense's application.
On January 15, 1954, the Union wrote a letter to the Company, relating the action
taken at meeting the night before, canceling its request for discharge of Ainsworth,
and repeating the request in its December 17 letter for the discharge of Pense. Al-
though this letter stated that Pense's application for reinstatement was rejected, it
did not state that Pense had tendered the requisite dues and initiation fee and that
the Union had refused to accept them. The Company complied with the Union's
request, discharging Pense on the same day, relying solely on the representations
and request of the Union hereinabove described. Thereafter Pense unsuccessfully
prosecuted a grievance 10 and on February 1, 1954, filed the charges initiating these
proceedings.
C. Concluding findings on Pense's discharge
In contending that the Company violated Section 8 (a) (3) of the Act, the
General Counsel reasons that the invalid provisions of the union-security article of
the contract invalidated the entire article so that the Company's discharge of Pense
for nonmembership in the Union at the latter's request would be without any con-
tractual justification. With respect to the Union, the General Counsel makes not
only this argument in support of his contention that the Union violated Section 8
(b) (2) (which would be a violation of the first alternative of that subsection) but
he also contends that the Union violated Section 8 (b) (2) with respect to the second
alternative stated in said subsection by terminating Pense's membership, or at least
denying him reinstatement, because of his act of assisting other employees to cancel
their dues deduction authorizations rather than his mere failure to pay dues. The
latter contention, which will be first considered, is supported by the following facts:
Despite the provision of the constitution, previously quoted, that delinquency in
dues for 3 months automatically terminated membership and that thereafter an ap-
plication for reinstatement had to be made to the Union, in at least three instances
the Union accepted payment of back dues after 3 months' delinquency without first
requiring the delinquent member formally to make application for reinstatement or
to be voted on at a membership meeting. The three were not dropped from the
rolls when, according to the constitution, they should have been. Clayton Wilson,
1 of the 3, despite due notice of delinquency, owed October, November, and
December, 1953 dues and was 3 months' delinquent on January 1, 1954. But on
January 20, 1954, Wilson's tender of his October and November dues was accepted
with no requirement that he make application for readmission. He left the unit on
January 24, but in about May 1954, he tendered his December and January dues to
pay to the time he left the unit. The Union rejected them at this time on the ground
that he had been dropped for nonpayment of December, January, and February
dues."
Nunzio Bitetti 12 was delinquent in his dues for September, October, and No-
vember, 1953, the same as Pense. On November 10, 1953, King, the financial secre-
tary, sent him a notice that he would be 3 months' delinquent at the end of that
to Ursino admitted that when Pense's grievance came to his attention he might have
commented, "This is a good one Here is a son of a bitch we get fired and now he wants
us to represent him," although he did not think he used the words "son of a bitch." He
confessed, however, to using the expression quite a bit
11 The change in attitude might be accounted for by the fact that the charge against
the Union had been filed in the interim
12 Bitetti's name is incorrectly spelled in the record as Bittetti
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
month, but Bitetti did not pay his dues before December 1 or even before January.
On January 7, 1954 , the same date that Pense tendered his delinquent dues, Bitetti
paid 2 months ' dues.13 The Union had among its records an application for rein-
statement endorsed as approved by the screening committee . The purported date
of this approval was December 24, 1953. But I find on the basis of the testimony
of Financial Secretary King, that on January 11, 1954 , he back-dated the endorse-
ment , intending to insert the date of the last previous membership meeting, which
would have been held on December 24 if it had in fact been held on the fourth
Thursday of the month as usual . However , the last previous meeting before Janu-
ary 11 was actually held on December 21. The minutes for that meeting do not
show any action taken on any application for reinstatement by Bitetti . Bitetti's
name was never removed from the roll of members as was Pense's. Union Presi-
dent Hobb testified that the Union had never had an application for reinstatement
from anyone dropped by the Union before those of Pense and Ainsworth. The sum
of the evidence leads me to the conclusion and I find that on January 11, 1954, after
Bitetti had been allowed to pay his back dues , the Union , without vote of the mem-
bership , caused a membership application card to be made out and endorsed ap-
proved by the screening committee chairman in order to give a formally correct
appearance to Bitetti 's case and that Bitetti was not actually put through the same
application procedure that Pense was.
A third man, William Goetz, failed to pay his dues after May 1953. He received
delinquency notices on August 11, September 8, and September 28, 1953. On Sep-
tember 1, 1953, he was more than 3 months in arrears, but he was not dropped from
the rolls. On September 15, 1953, he tendered, and the Union accepted, payment of
2 months' dues.14 King explained that Goetz' name was not removed from the
rolls through an oversight by the grand lodge (parent organization) to whom names
of members and last payment of dues are reported. But whether or not the grand
lodge overlooked Goetz' delinquency, it is the duty of the financial secretary to note
the name of a delinquent member for dropping as soon as he becomes 3 months
in arrears. King might be excused for an error in his report to the grand lodge;
but when he sent Goetz his delinquency notice on September 8, he admittedly knew
that Goetz was already more than 3 months in arrears and should have been dropped.
Nevertheless, on September 15, knowing this, King accepted from Goetz 2 months'
dues without requiring Goetz to make application for readmission as he did with
Pense.
Pense and Ainsworth were the first delinquent members to be put in the position
of having to make application for reinstatement and having their applications passed
on by the executive board and the membership. And Pense was the first to be dis-
charged for loss of membership. The mere fact that the Union had failed to comply
with the constitution before the cases of Pense and Ainsworth arose, does not mean
that it could not thereafter commence to comply with the constitution as it should
have. But the fact that it commenced with Pense, against whom there appeared to
be some ill feeling for reasons other than his failure to pay dues, and the fact that
the constitutional provision was not uniformly applied thereafter, are circumstances
not to be overlooked in determining the true reason for the Union's dropping of
Pense from membership.15 It is conceded that Pense's tender of $17.50 was not
rejected because of its form or amount. It is reasonably inferrible, and I find that,
if Pense had not aggrieved the Union other than by becoming delinquent in dues,
he would not have been dropped from the rolls. He was, I find, actually deprived
of membership because of the circumstances surrounding his cancelation of his dues-
deduction authorization. The Act does not authorize the Union to cause a discharge
for such reason, so I find that the Union, by depriving Pense of his membership for
such reason and by thereafter causing his discharge, violated Section 8 (b) (1) (A)
and (2) of the Act.
But even granting , for the sake of argument , that Pense was dropped from mem-
bership solely for nonpayment of dues, he was, nevertheless, thereafter denied mem-
bership, on application, for a reason other than his failure to tender the dues and
13 The finding as to the date is based on a stipulation between the Union and the Gen-
eral Counsel
14 King sometimes gave a notice of 2 months' delinquency. Presumably the notice of
September 28 was of that character as Goetz would not have been again 3 months in
arrears until November 1
15 See Intermediate Report and Recommended Order in Biscuit and Cracker Workers
Local Union No. 405, AFL, 109 NLRB 985, where a Trial Examiner found that disparate
treatment deprived the respondent union of any justification for causing employee's dis
charge for nonpayment of dues.
CONVAIR 1073
initiation fee uniformly required as a condition of acquiring membership . His ap-
plication for reinstatement was accompanied by an authorization to deduct from his
wages not only his dues but his initiation fee. No contention was made that this
was inadequate as a tender . Ainsworth made the same kind of tender and his tender
was accepted. If Pense 's application had been accepted , he would have been charged
the equivalent of 2 months' dues as a reinstatement fee, as was Ainsworth, and that
amount , $7, would have been paid under the checkoff authorization tendered by
Pense with his application , just as it was in the case of Ainsworth. No question is
involved of the right of the Union to discipline its members , a right specifically pro-
tected by Section 8 (b) (1) (A) of the Act. If the Union felt that Pense's conduct
in assisting union members to revoke their dues-deduction authorizations was inimical
to its interests and deserving of penalty, it was free to inflict it. It was even free to
withhold membership from Pense for such reason so long as it did not seek to cause
his discharge by the Company for that reason. That it did in fact request his dis-
charge for a reason other than his failure to pay his dues, or for a reason other than
his failure to tender dues and initiation (or reinstatement) fee, is obvious from the
fact that, but for the Union' s displeasure caused by the conduct of Pense in aiding
employees to revoke their dues deduction authorizations, his case was no different from
that of Wilson, Goetz, and Bitetti, whose tender of dues more than 3 months' de-
linquent was not rejected, or from the case of Ainsworth, whose application for re-
instatement , accompanied by a dues-deduction authorization was accepted. The
Union sought to distinguish the difference in treatment between Ainsworth and Pense
on the ground that Ainsworth appeared personally before the executive board and
pleaded his case, while Pense did not. No union rule, bylaws, or constitutional
provision required appearance before the executive board in such case. In fact
there was nothing in such rules providing for consideration of applications by the
executive board at all, and there was no precedent for it. Pense could not have
been expected to know that his case would be passed on by the executive board,
much less that he would be expected to appear before it. Had not the business agent
taken Ainsworth under his wing and steered him to the executive board, Ainsworth
would not have appeared there either. I am not persuaded that the disparate treat-
ment afforded the two men resulted from such a tenuous and illogical distinction.
Rather I find that the real reason for rejection of Pense's application (just the same
as the rejection of his tender of dues) was the Union's displeasure with his conduct
as explained above and was not, in any event, a failure to tender the requisite dues
or initiation fee. Had Pense already been discharged at the time he made his appli-
cation for reinstatement in the Union, the rejection thereof could not have affected
his employment status. It does not appear why the Union, after demanding the
immediate discharge of Ainsworth and Pense on December 17, 1953, stood silent
for nearly 30 days before again insisting on giving the contract effect. No contention
is made that the Company wilfully disregarded its agreement. I note the fact that
it acted quite promptly on receipt of the Union's letter of January 15, 1954. I can
only infer that the delay was acquiesced in by the Union for some reason, perhaps
to give Ainsworth and Pense an opportunity to make application for reinstatement
and have it passed on. In any event, Pense had not yet lost his employment before
either of the tenders made as hereinbefore related. Inasmuch as the Union, by its
letter of January 15, 1954, caused the Company to discharge Pense and inasmuch
as the reason of the Union for causing such discharge was not Pense's failure to
tender the requisite dues and initiation fee, the Union caused the Company to dis-
criminate against Pense in violation of Section 8 (b) (2) of the Act.
Because the Company had no reason to believe that Pense had been dropped
from membership or denied reinstatement for any reason other than failure to pay
dues, as the Union represented the case to be, the Union's true motive did not enter
into the Company's action of discharging Pense. Therefore, although Pense was in
fact discriminated against, the Act permits the Company to justify (or excuse) the
discharge so as to relieve it of the consequences of the discrimination. This no doubt
explains the omission, in the complaint, of an allegation that the Company violated
Section 8 (a) (3) as a result of the Union's improper motive.
On the other hand, the complaint alleges that both the Company and the Union
committed unfair labor practices as a result of their conduct with respect to Pense
because of the illegality of the union-security provision. In making this contention,
the General Counsel adopts the premise that any illegality in terms of a union-secu-
rity clause renders the entire provision void. If this premise is correct, not only the
Union but the Company likewise is guilty of an unfair labor practice in the discrimi-
nation against Pense, for the justification by the Company for Pense's discharge de-
pends on the existence of a union-security agreement which requires the payment
of dues and initiation fees as a condition of employment. If the entire union-secu-
rity section of the contract is void for illegality, the Company's justification is gone,
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even if it did not discharge Pense pursuant to the illegal language-that is, did not
discharge him for failing to pay dues after having left the unit while a union mem-
ber and later being reemployed in the unit at a time when he was not a member.
When the Act uses the word "agreement" in the proviso, "That nothing in this Act,
or in any other statute of the United States, shall preclude an employer from mak-
ing an agreement with a labor organization . to require membership therein on or
after the thirtieth day following the beginning of such employment or the effective
date of such agreement, whichever is the later. . ." it does not furnish any defi-
nition for the word. It could mean one entire writing, called an agreement, whether
or not each item therein is violative of the purpose of the Act; or it could mean just
the individual item of agreement among many dealing with union security; or it
could mean all items of that portion of an entire contract which deals with the sub-
ject of union security even though less than all are contrary to the purpose of the
Act. It has been decided that it does not have the first meaning. An entire contract
is not a nullity because of an illegal union-security provision.is So far as I am aware,
it has not yet been decided that illegality in one aspect of a union-security contract
does not void the entire union-security section. The Act does not specifically re-
quire the nullification of the whole union-security agreement because one portion
of it may be unauthorized. The proviso quoted above is negative-that nothing
shall preclude the making of a union-security agreement-rather than that all parts
of an agreement attempting to establish union security are void. The license for
finding such agreement void derives from the principle that a purpose to circum-
scribe the rights and protection intended to be provided for employees by the Act
is contrary to the policy of the law. But calling one portion of a contract illegal is
not tantamount to saying that the whole is void. As" used in connection with con-
tracts, the word "illegal" may have different meanings, depending on how far it
may be necessary to go to effect the policy of the law. Severability in terms of a
contract may contribute to a determination of the extent to which a contract will
be outlawed. Severability is generally found to exist if the illegality is in a promise
or condition which does not constitute the main or essential feature or purpose of
the agreement, where deletion of the unlawful part will not distort the meaning and
intent of the parties as to the balance, and where the illegality is not so interwoven
with the remaining portion as to taint it with illegality, too.17 It may be that, to the
extent that an employee who was a member of the Union on leaving the unit is still
a member of the same parent organization on being reemployed in the unit, albeit
through a different local, a requirement of membership or payment of dues on reem-
ployment in the unit may be lawful without a grace period. But the agreement itself
does not differentiate between such employees and others who are not members on
reemployment. As to the latter, the language of the agreement is unlawful. No
words can be deleted which will permit application so far as legal. Therefore, the
whole phrase is void. But this does not necessarily mean that the entire main-
tenance-of-membership article must be found to be void. Again applying the test
of severability, I note that the unlawful language is subsidiary to the main purpose
of article XIV, it is severable in its own terms, that is, it is possible to delete the
offensive language without rendering the remainder of the maintenance-of-member-
ship agreement unperformable, and it does not, in my opinion, taint the balance with
its illegality so that the remaining maintenance-of-membership provisions must be
nullified.18 Accordingly, I find that, although the provision for mandatory payment
of dues by employees when reemployed in the unit, if they had been members on
leaving it, is illegal and void, it does not so pervade the balance of the maintenance-
of-membership agreement as to taint it and render it a nullity. Because Pense was
not discharged pursuant to the severable illegal provisions of the maintenance-of-
membership agreement, the Respondents are not deprived of any justification for
'IN. L. R B. V. Rockaway News Supply Company, Inc, 345 U. S. 71; Golden Valley
Electric Association, Inc, 109 NLRB 397.
17 See American Law Institute Restatement of Contracts, Vol. 2, § 603; annotations :
6 L. R A (N S ) 547; 26 L. R A (N S.) 106.
Iii In this respect, I find the case here distinguishable from Pacific Intermountain Ex-
press Company, 107 NLRB 837; Local 803, International Brotherhood of Boilermakers,
Iron Ship Builders and Helpers of America (AFL), 107 NLRB 1011; and Tacoma Harbor
Lumber & Timber Co, 108 NLRB 912 In these cases, the illegality pervaded the entire
union security plan. In the last cited case, for example, the agreement was for a modi-
fied union shop which did not give new employees the full 30 days in which to join the
union The principal puipose of a union shop cannot be achieved unless new employees
join the union The illegal portion of that contract, therefore, could not be considered
subsidiary to the main purpose of the clause.
• CONVAIR 1075
their conduct in connection with his discharge that they otherwise would have. How-
ever, even under a valid union-security agreement , the Union 's conduct here would
not have been justified; so it is not relieved from the consequences of its unfair labor
practice by the fact that the illegality is severable and did not contribute to the dis-
crimination against Pense.
Although I have found that the inclusion of the requirement of payment of gen-
eral assessments in the contract was not by itself an unfair labor practice, there
is no doubt that the language was unauthorized by the Act . In the representation
cases previously cited, the Board held such language to be illegal . The question
of severability was not raised . It may be argued that, in holding such contract no
bar to an election , the Board , in effect, was holding that the entire contract was a
nullity. But that is not necessarily true. The Board has recently held in an unfair
labor practice case, that illegality of a contract in one respect does not warrant an
order to cease and desist giving effect to the entire contract . 19 As previously stated,
the extent to which illegality will be found to void a contract depends to some
extent on how far it may be necessary to go to give effect to the policy of the law.
The Board may, in its discretion , decide that , in representation cases, the policy of
the law can best be effectuated by holding that a contract in which a union attempts
to gain any unauthorized advantage will constitute no bar to an election. In an
unfair labor practice case, it may be necessary to do no more than to require that
the unauthorized language be deleted . This would be true if the illegal language
were severable . Where no moral turpitude is involved and where the statute does
not expressly state that the use of unauthorized language will nullify the contract,
the policy of the law may be effectuated adequately by requiring the parties to
eliminate the offending language so as to guard against even the possibility of a
future unfair labor practice . The Union explains that the unwarranted word
"assessments" got into the agreement because it was in a checkoff provision in
former contracts which did not contain any union -security provision , and, when the
maintenance -of-membership contract was made, it was incorporated therein without
noticing the need for a change. If this be true, it was a matter of inadvertence
rather than design to violate the policies of the Act, no one actually suffered as a
consequence of the inadvertence , and the Union gained no preferred position as a
result thereof. Whatever remedy might be deemed essential to cope with intended
illegality, voiding the entire union-security provision seems unnecessary here where
apparently it was not inserted by design and where no performance had taken place
under it. Under the Union 's constitution , assessments are not treated as dues, being
separately payable. Under the contract there is no confusion between dues and
assessments , both apparently being payable independently . So the unauthorized word
or words may be stricken without affecting performance of the remaining provisions;
and the requirement of payment of general assessments is subsidiary to the main
purpose of the Union 's security clause, so it does not taint the remaining legal
language. Consequently , I find the provision for payment of general assessments
in the contract is severable , and that , although it is void it does not affect the remain-
ing parts of the agreement found not to be illegal.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Company described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I shall recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. As stated above, in a new col-
lective-bargaining contract between the Union and the Company effective February
1, 1954, the requirement of payment of general assessments as a condition of employ-
ment was omitted from the union-security section , which otherwise remained the
same. I see no reason to anticipate any danger that the omitted words will hereafter
be reinserted in the same or a similar agreement . Therefore, no cease and desist
order seems to be required as to such language.
19 Golden Valley Electric Association, Inc, 109 NLRB 397.
344056-55-vol 111-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No question has been raised concerning the propriety of recommending that the
remedy extend to General Dynamics Corporation, successor of the original re-
spondent, but in view of the Board's decision in Symns Grocer Co., and Idaho Whole-
sale Grocery Co., 109 NLRB 346, it will be well to differentiate this case. It is unnec-
essary to decide whether a distinction should be drawn between an assignee , as in that
case, where there was a severance of the business sold from that retained by the
respondent, and a successor, as in this, where the respondent merges in a new cor-
poration and continues as a division of the successor corporation, because here the
successor, General Dynamics Corporation expressly assumed all of the obligations
of Consolidated Vultee Aircraft Corporation. This would include the collective-
bargaining agreement made on February 1, 1954. The new agreement continued
in effect a portion of the illegal language of the prior agreement as heretofore found.
Hence, to that extent, the successor, General Dynamics Corporation, will merely be
remedying its own unfair labor practice. Furthermore, General Dynamics Corpora-
tion, by its own motion to be substituted as respondent in place of Consolidated
Vultee Aircraft Corporation, acquiesced in the issuance of any remedial order
against itself.
Since it has been found that the Union caused the Company discriminatorily to
discharge Pense for reasons other than his failure to tender the requisite dues and
initiation fees in violation of the Act, I shall recommend that the Union notify the
Company and Pense that it withdraws any and all objections it may have to the
reinstatement of Pense with his previous seniority and other rights and privileges,
and that it will not again request his discharge for a reason other than his failure
to tender the requisite dues and initiation fees (including reinstatement fees). I
will further recommend that the Union make Pense whole for any loss he may
have suffered as a result of the discrimination caused by the Union by paying to
him a sum of money equal to that which he would have earned in his employ with
the Company but for the discrimination against him , from January 15, 1954, to
5 days after the receipt of notification by the Company and Pense that it has with-
drawn its objection to his reinstatement as aforesaid, less his net earnings elsewhere,
if any, during that period.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By maintaining in effect a union-security provision in a contract requiring that
employees who, on leaving the bargaining unit were members of the Union, should,
on reemployment in the unit, again pay dues, whether or not they are then mem-
bers of the Union, and without providing the statutory period of 30 days in which
to become members as a condition of employment, (a) the Company has engaged
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the
Act; and (b) the Union has engaged in unfair labor practices within the meaning of
Section 8 (b) (1) (A) and (2) of the Act.
3. By causing the Company to discharge Pense discriminatorily within the mean-
ing of Section 8 (a) (3) of the Act, the Union has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
4. 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.]
FERGUSON - STEERE MOTOR COMPANY and LOCAL UNION No. 577, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSE-
MEN AND HELPERS OF AMERICA , AFL. Case No. 16-CA-721. March
02,1955
Decision and Order
On October 21,1954, Trial Examiner Sidney L. Feiler issued his In-
termediate Report in the above-entitled proceeding, finding that the
111 NLRB No. 181.