General Motors Corp.

National Labor Relations Board - Board Decisions

Dec 8, 1961

134 N.L.R.B. 1107 (N.L.R.B. 1961)

GENERAL MOTORS CORP., PACKARD ELECTRIC DIVISION 1107
ployees; but excluding office clerical employees, engineering clerks,
and blueprint machine operators; design engineers, designers, de-
tailers, and engineering apprentices in the measuray engineering de-
partment; designers, detailers, and engineering apprentices in the
mechanical and electrical engineering departments; laboratory tech-
nicians in the pneumatic laboratory of the autometrology division ;
engineering group leaders, design engineers, designers, detailers and
engineering apprentices in the machine tool engineering department
of the machine tool division; engineering group leaders, checkers, de-
sign engineers, designers, detailers and engineering apprentices in
the production engineering department of the gauge and instrument
division; engineering group leaders, design engineers and designers
in product engineering of contract manufacturing division; designer
in special projects, modulab; and sales employees, co-op students,
confidential employees, professional employees," guards, and super-
visors as defined in the Act."
[Text of Direction of Election omitted from publication.]
MEMBERS LEEDOM and FANNING took no part in the consideration
of the above Decision and Direction of Election.
probationary employees of the Employer in the production and maintenance unit (The
Sheffield Corporation, 123 NLRB 1454 , 1457 ) and the record herein shows that the em-
ployment status of probationary employees has not changed We therefore find, for
the reasons given in that decision , that probationary employees should be included in
the unit and are eligible to vote.
11 We find, on the basis of the entire record, that the following employees are pro-
fessional employees , and, in accord with the agreement of the parties , exclude them
from the unit : electronic engineers in the electronic engineering department, auto-
metrology division , and the cavitron department, machine tool division ; mechanical
engineers in the pneumatic laboratory , autometrology division , physicists in the cavitron
department , machine tool division; project engineers in special products , modulab; and
the engineering group leader in the electrical engineering department , autometrology
division.
12 The Petitioner at the hearing agreed to represent as broad a unit as the Board finds
appropriate As the unit found appropriate is broader than that originally requested by
the Petitioner , the Regional Director is instructed to conduct the election herein directed
only after he has determined that the Petitioner has made an adequate showing of interest
in the unit found appropriate.
General Motors Corporation , Packard Electric Division and
Donald T . Morris
International Union of Electrical , Radio, and Machine Workers,
AFL-CIO, Packard Local 717 and Donald T. Morris. Cases
Nos. 8-CA-9d024 and 8-CB-418. December 8, 1961
DECISION AND ORDER
On August 3, 1960, Trial Examiner Ralph Winkler issued his In-
termediate Report in the above-entitled proceeding, finding that the
134 NLRB No. 116.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondents
did not engage in certain other unfair labor practices and recom-
mended that the complaint be dismissed with respect thereto. There-
after the Charging Party, General Counsel, and Respondents filed
exceptions to the Intermediate Report and briefs in support thereof.
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 this
proceeding,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner , except as modified herein.
1. As found by the Trial Examiner, the Union requested the Com-
pany to discharge Busefink pursuant to a valid union-security agree-
ment between the Union and the Company , at a time when and solely
because Busefink was delinquent in the payment of his dues. There-
after, Busefink offered to pay the Union the amount of his delinquency,
which offer the Union refused to accept ; and the Company thereafter
discharged Busefink pursuant to the Union 's request . On these facts
the Trial Examiner concluded that under the rule of the Alrwminum
Workers case 2 the Respondent Company had violated Section 8(a) (3)
and (1 ) of the Act and the Respondent Union had violated Section
8(b) (2) and (1) (A).
The Union, in excepting to the finding of violations of Section
8(b) (1) (A ) and (2 ), urges the Board, inter alia, to overrule the
A11tvmivnum Workers case insofar as it holds that a full and unqualified
tender made any time prior to actual discharge , and without regard as
to when the request for discharge may have been made, is a proper
tender, and that a subsequent discharge based upon the request is
unlawful . We find merit in this position.
The legality of a discharge in the circumstances of this case is gov-
erned by the provisions of Section 8(a) (3) and 8 (b) (2) of the Act.
Section 8(a) (3) provides in pertinent part:
. .. nothing in this Act, or in any other statute of the United
States, shall preclude an employer from making an agreement
with a labor organization . . . to require as a condition of em-
ployment membership therein on or after the thirtieth day fol-
lowing the beginning of such employment or the effective date of
I As the record and briefs adequately present the issues and positions of the parties, the
request by the Respondent Union for oral argument is denied.
a Aluminum Workers International Union, Local No. 135 , AFL (The Metal Ware
Corporation), 112 NLRB 619, 621, wherein the Board stated the general rule that "a
full and unqualified tender made anytime prior to actual discharge, and without regard
as to when the request for discharge may have been made, is a proper tender and a
subsequent discharge based upon the request is unlawful."
GENERAL MOTORS CORP., PACKARD ELECTRIC DIVISION 1109
such agreement, whichever is the later . . . : Provided further,
That no employer shall justify any discrimination against an
employee for nonmembership in a labor organization . . . if he
has reasonable grounds for believing that membership was denied
or terminated for reasons other than the failure of the employee
to tender the periodic dues and the initiation fees uniformly
required as a. condition of acquiring or retaining membership.
Correspondingly, Section 8(b) (2) of the Act provides that it shall be
an unfair labor practice for a union "to cause or attempt to cause an
employer . . . to discriminate against an employee with respect to
whom membership in such organization has been denied or terminated
on some ground other than his failure to tender the periodic dues and
the initiation fees uniformly required as a condition of acquiring or
retaining membership."
As reflected in the statutory language, the question to be determined
is the reason underlying the discharge. As we have found, Busefink
was delinquent in the payment of his dues at the time the Union re-
quested his discharge and the request was made solely because of such
delinquency; if the Company had discharged Busefink immediately
upon receipt of the Union's request, the legality of both the request
and the discharge could not have been questioned. In these cir-
cumstances, to find that Busefink's offer of payment, subsequent to the
request for his discharge but prior to his actual discharge, was suffi-
cient to convert lawful action into unlawful action would mean that,
despite the absence of any other evidence of unlawful purpose, an
inference is to be drawn that the Union refused to accept his offer
and continued to seek his discharge for some undisclosed reason other
than his prior delinquency and that the Company had reasonable
grounds for believing that such was the case. We do not believe that
the fact of a tender belatedly made after a lawful request for dis-
charge is sufficient standing alone to warrant such an inference.
We believe, moreover, that the application of the Aluminum Work-
ers rule is at odds with the congressional purpose of allowing parties
to collective-bargaining relationships to enter into and effectively en-
force union-shop agreements requiring membership in the union as
a condition of employment. For, as illustrated by the circumstances
of this case, there can be little if any union security if dissident mem-
bers can frustrate the orderly administration of lawful collective-
bargaining agreements by delaying payment of dues and fees they are
lawfully obligated to pay until the last minute before their actual
discharge. We shall therefore no longer apply the Aluminum Work-
ers rule when the tender occurs after a lawful request, but shall in
all such cases look to the record to determine the real reason for the
parties' subsequent conduct.'
3 To the extent that they are inconsistent with our decision herein , the Aluminum
WorLers case, supra, and cases relying thereon are hereby overruled In joining the
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we are satisfied on this record that the Union requested the dis-
charge of Busefink solely because of his delinquency in dues, and that
the Company discharged him for such delinquency, as it was required
to do by the valid union-security agreement in effect between them,
we find that no violations of 8(a) (1) and (3) and 8(b) (1) (A) and
(2) were committed by reason of the conduct of the Company and
-the Union with respect to Busefink.4 We also find, contrary to the
contention of the Charging Party, that the Union did not violate
the Act by attempting to cause the discharge of employees Bendick,
Bower, Burgess, Pukelis, and Ulam, as they were also delinquent at
the time of the request for their discharge and, like Busefink, offered
to cure their delinquency only after such request.
2. Under the circumstances of this case we agree with the Trial
Examiner's disposition of the other allegations in the complaints.
ORDER
Upon the entire record in this proceeding, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent Union,
International Union of Electrical, Radio, and Machine Workers,
AFL-CIO, Packard Local 717, its officers, agents, representatives,
successors , and assigns; shall:
1. To cease and desist from :
(a) Seeking or threatening the discharge of employees for faliure
to pay dues for a period not covered by a union-security contract.
(b) In any like or related manner restraining or coercing em-
ployees of General Motors Corporation, Packard Electric Division, in
the exercise of their rights guaranteed in Section 7 of the Act, ex-
cept as such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as au-
thorized by Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business office in Warren, Ohio, copies of the notice
attached hereto marked "Appendix." s Copies of said notice, to be
furnished by the Regional Director for the Eighth Region, shall,
after being duly signed by an official representative of the aforesaid
Union, be posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
majority in this case , Member Brown does not view the decision as determining whether
the validity of the discharge action is contingent upon a specific request for discharge
before a belated tender is made.
A In view of our decision , we do not pass on the Trial Examiner 's recommendation that
any dues which Busefink may have owed be offset against his backpay.
5In the event that this Order is enforced by a decree of a United States 'ourt 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."
GENERAL MOTORS CORP., PACKARD ELECTRIC DIVISION 1111
including all places where notices to members are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Diretcor for the Eighth Region sufficient
signed copies of the foregoing notice for posting, the Company will-
ing, at its plant in Warren, Ohio, in conspicuous places, including all
places where notices to employees, are customarily posted, and, if
posted, reasonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent Union has taken to comply therewith.
IT IS FURTHER ORDERED that the amended complaint in Case No.
8-CA-2024 be dismissed in its entirety, and that the complaint in
Case No. 8-CB-418 be dismissed insofar as it alleges that the Re-
spondent Union has violated the Act otherwise than as found herein.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF ELECTRICAL,
RADIO, AND MACHINE WORKERS, ' AFL-CIO, PACKARD LOCAL 717,
AND TO ALL EMPLOYEES OF GENERAL MOTORS CORPORATION, PACK-
ARD ELECTRICAL DIVISION
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 seek or threaten the discharge of employees for
failure to pay dues for period not covered by a union-security
contract.
WE WILL NOT in any like or related manner restrain or coerce
employees of General Motors Corporation, Packard Electric Di-
vision, in the exercise of their rights guaranteed in Section 7 of
the Act, except as such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
INTERNATIONAL UNION OF ELECTRICAL,
RADIO, AND MACHINE WORKERS, AFL-
CIO, PACKARD LOCAL 717,
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.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This consolidated proceeding was heard before the duly designated Trial Examiner
in Warren, Ohio, on March 7 and 8, on an amended consolidated complaint of the
General Counsel and separate answers of the respective Respondents. The issues
litigated were whether Respondent Company violated Section 8(a)(1) and (3)
of the Act and whether Respondent IUE, Local 717, violated Section 8 (b) (1) (A) and
(2) of the Act. Briefs have been received and considered. I
Upon the entire record in the case, and from my observations of all witnesses, I
hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT COMPANY
General Motors Corporation, herein called the Company, is a Delaware corpora-
tion with principal offices in Detroit, Michigan. It operates automobile manufactur-
ing and assembling plants and other business establishments throughout the United
States. Packard Electric Division, an unincorporated division of the Company,
manufactures electrical systems for motor vehicles in a plant at Warren, Ohio; its
annual interstate sales exceed $50,000. The Company is engaged in commerce
within Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent International Union of Electrical, Radio, and Machine Workers,
AFL-CIO, Packard Local 717, herein called IUE, is a labor organization within
Section 2(5) of the Act.
Chapter 14, International Society of Skilled Trades, herein called Society, is a
labor organization within Section 2(5) of the Act.
1111 . THE UNFAIR LABOR PRACTICES
The complaint alleges in effect that the IUE and the Company required five
employees,' as a condition of their employment, to execute checkoff authorizations
for union dues and also to pay dues for a period not covered by a union-security
contract; that the IUE caused the Company to discharge Herbert E. Busefink and
that the Company did discharge Busefink for dues delinquency under a union-shop
contract after Busefink had tendered the amount of dues owing under said contract;
and that the Company suspended and then discharged Donald T. Morris for engaging
in protected concerted activities.
A. Sequence of events
This case involves a plant of approximately 5,000 employees, and the IUE has
been recognized as the certified bargaining representative for these employees since
1950. The Company and the IUE have had a series of collective-bargaining agree-
ments covering this plantwide unit, the effective term of the present agreement ex-
tending from October 21, 1958, until at least August 31, 1961. The prior contract
ran from 1955 until May 28, 1958, and there was no operative agreement during
the period from May 29, 1958, until the present contract went into effect on Oc-
tober 21, 1958; this interval between contracts will be called the no-contract period.
The present agreement, like the prior one, contains union-security provisions as
well as a provision for checkoff of union dues. The General Counsel does not chal-
lenge in any -respects the validity of these union-security and checkoff provisions.
Insofar as is material here, the contract provides in this connection that all employees
who were members of the IUE on October 21, 1958, shall continue such member-
ship and that employees who were not members on that date shall become members
within 90 days of that date and shall continue their membership. The contract
defines a union member as one who is not more than 60 days in arrears of described
union dues. This 60-day period begins running at the beginning of the month for
which dues are payable; thus, an employee member who fails to pay his May dues
'Thomas F Bower, Norman J. Ulam, Robert D. Burgess, Stephen J. Bendik, Jr, and
Stanley Pukells
GENERAL MOTORS CORP., PACKARD ELECTRIC DIVISION 1113
is subject to discharge for such reason by June 30. The Company agrees, in the
checkoff provision, to deduct monthly membership dues from the pay of each
employee for whom it has on file an unrevoked checkoff authorization.
The Society has been organizing and attempting to carve out a toolroom unit of
approximately 250 employees from the established plantwide unit, and in June 1958
the Society filed a representation petition with the Board for such toolroom unit.
This petition was dismissed on July 1, 1958, because of the inappropriateness of the
requested unit. In November 1958 the Society instituted an action in the Ohio State
courts to restrain the Company and the IUE from performing the checkoff provision
of the current agreement . The court of common pleas dismissed the action and,
on review , the court of appeals sustained the dismissal . In May 1958 , upon expira-
tion of the prior agreement, employee proponents of the Society meanwhile had
concertedly revoked their IUE checkoff authorizations and otherwise did not con-
tinue their dues payments to the IUE during the mentioned no-contract period.
These employees were not required to do otherwise by any existing contract, and
the Company also advised all its personnel that union-security conditions were not
in force during the no-contract period and that the Company would not, and it did
not, checkoff IUE dues during this hiatus.
All employees were required, however, to become IUE members (within the
contract definition) no later than 90 days after the effective date of the current
October 1958 agreement , as described above. Some employees who had not paid
IUE dues during the no-contract period had failed to rejoin or perfect such member-
ship within the contract prescription. On January 29, 1959, which was after the
stated 90-day period, the IUE individually notified all such employees that it would
request their discharge unless they became members of the IUE within 5 days from
receipt of this notification. On February 9, 1959, and as it was entitled to do under
the contract , the IUE accordingly requested the Company to discharge approxi-
mately 80 named employees who still had not become IUE members as required;
however , the IUE agreed with the Company to postpone the discharge requests until
February 16, 1959 . The Company meanwhile interviewed each of the 80 employees
and explained the union-security provisions of the contract . On February 11, 1959,
an attorney representing employee members of the Society sent a check to the IUE
in payment of initiation fees and the January and February dues for the mentioned
80 employees.
It is recalled that many , if not all, Society proponents had revoked their 'IUE
checkoff authorizations in May 1958 ; they did not execute new IUE checkoff au-
thorizations under the October 1958 contract and their practice was to wait at least
a month before paying each month 's dues. I am satisfied that such action was
deliberate and taken in concert.
Stephen Bendik , Thomas Bower, Robert Burgess , Stanley Pukelis, and Norman
Ulam were long-time employees of the Company and they were among the Society
members who had revoked their IUE checkoff authorizations in May 1958. They 2
were also among the aforementioned 80 Society members who failed to become IUE
members within the 90 days required under the October 1958 agreement , who were
interviewed and advised by the Company of their obligations under the contract, and
who then belatedly paid their IUE dues and initiation fees in February 1959 as
described above. These five employees also had not executed new checkoff cards,
and also were among the mentioned Society members who followed the practice of
delayed payment of IUE dues. None of these five employees had paid IUE May
dues by June 22, 1959, and on that day the IUE advised them by individual letter
that they would be in default under the contract unless they paid such May dues
by June 30. All five employees chose to ignore the IUE's June 22 letter, and they
did nothing about paying May dues within the required 60-day period.
On July 2,3 IUE President Albert Fenton handed a letter to C. C. Alexander, the
Company's director of labor relations , which letter demanded the immediate dis-
charge of the mentioned five employees for being more than 60 days in arrears in
dues. Alexander told Fenton he would have to make his own investigation of such
claimed arrearages , and Fenton indicated in the ensuing conversation that he
(Fenton) would be willing to talk to the affected men before final discharge would
be taken . Alexander thereupon directed one of his personnel supervisors, Morey
Webster, to interview the men and ascertain the facts respecting their purported de-
fault and to remind them of their IUE membership obligations under the contract
2 Bendik was in layoff status from July until December 1958
3 Unless otherwise stated , all other events recounted here occurred in 1959.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to determine what the men intended to do about the matter. Alexander also
directed Webster to have the men report back to Webster what action each had
taken to straighten out the situation by July 6 and Alexander also directed Webster
to report back to him on July 6. Webster thereupon proceeded to interview each
man within the scope of Alexander's instructions; what he did was to refer to the
IUE's letter of July 2 and to the membership requirement of the contract mentioned
in the letter and to ascertain whether the men were more than 60 days in arrears.
The men admitted their default to Webster and they indicated their desire to pay
up their dues. The five men spoke with Fenton within the next few days and
offered to pay their current arrearages. Fenton rejected their respective offers and
he told them in effect that he would not withdraw the July 2 demand for their dis-
charge unless they signed checkoff authorizations and paid all dues, including back
dues for the mentioned no-contract period. Fenton told the men that the reason
for insisting on the checkoff was to prevent continued recurrence of default in dues
payments. No company representative was present at these conversations.
Three or four (the number being immaterial) of the five men reported back to
Webster on July 6, and they informed Webster of their aforementioned conversa-
tions with Fenton. Webster's function at the time was, as indicated earlier, merely
to ascertain facts and to report such facts to Alexander, and the reliable and credible
testimony establishes that Webster did only what he was instructed to do. Webster
testified and I find that he did not direct or advise or suggest to the employees that
they should sign checkoff authorizations or that they should pay dues for the no-
contract period; Webster did not state in any of these mentioned conversations either
expressly or impliedly that the signing of checkoff authorizations or payment of no-
contract dues was a condition of employment and he did not otherwise tell these
employees that they would be discharged unless they signed a checkoff authorization
or paid such dues. After the employees related their conversations with Fenton,
Webster directed them to work and he told them that he would pass on the informa-
tion to Alexander and that they would be notified of any further action.
The five employees went to Fenton on or about July 6 and signed checkoff authori-
zations and either paid or made arrangements to pay the mentioned back dues. Later
that day Fenton advised Alexander that the IUE was withdrawing its request for the
discharge of the five employees. The IUE retained possession of the five checkoff
cards until August, and the Company deducted no dues thereunder until that time.
In the evening of July 6, the Society convened a special meeting attended by approx-
imately 40 Society members employed in the Company's machine shop, including
Bower and Ulam of the five employees involved. Employee Donald T. Morris is
director or president of the Society, and he presided. The meeting was called to
discuss the checkoff cards executed by the fivementioned employees and the assem-
bled group unanimously agreed at this meeting that there would be a "sitdown" at
the plant the following day (July 7) "until [the aforementioned five] checkoff cards
obtained through coercion are rescinded." The motion, as adopted, described the
intended "sitdown" as "not open tool boxes or don aprons."
The mentioned strike occurred the next day (July 7). Before discussing that inci-
dent and in order to present the succeeding events in proper perspective, I shall inter-
rupt the chronological recitation with a reference to some pertinent contractural pro-
visions operative at the time.
B. No-strike and other contract provisions
Paragraph 99 of the current contract contains the following no-strike provision:
During the life of this Agreement , the Union will not cause or permit its mem-
bers to cause, nor will any member of the Union take part in, any sit-down, stay-
in or slow-down, in any plant of the Corporation, or any curtailment of work
or restriction of production or interference with production of the Corporation:
The Union will not cause or permit its members to cause nor will any member
of the Union take part in any strike or stoppage of any of the Corporation's
operations or picket any of the Corporations ' plants or premises until all the
bargaining procedure as outlined in the Agreement has been exhausted, and in
no case on which the Umpire shall have ruled, and in no other case on which
the Umpire is not empowered to rule until after negotiations have continued
for at least five days at the Appeal step of the Grievance Procedure and not
even then unless authorized by the International Union of Electrical, Radio &
Machine Workers, AFL-CIO, and written notice of such intention to authorize
has been delivered to the Personnel Staff of the Corporation subsequent to
the Appeal step and at least five (5 ) days prior to such authorization. . In
case a strike or stoppage of production shall occur, the corporation has the
GENERAL MOTORS CORP., PACKARD ELECTRIC DIVISION 1115
option of cancelling the Agreement at any time between the tenth day after the
strike occurs and the day of its settlement. The Corporation reserves the right
to discipline any employee taking part in any violation of this Section of this
Agreement.
The contract provides, in part, as to dues checkoffs that the Company will not make
such payroll deductions until the IUE delivers to it an authorization form properly
executed by the employee, and the contract also provides in this connection that:
Any dispute which may arise as to whether or not an employee properly exe-
cuted or properly revoked an Authorization and Direction form, shall be re-
viewed with the employe by a representative of the Local Union and a repre-
sentative of local Management. Should this review not dispose of the matter,
the dispute may be referred to the Umpire, whose decision shall be final and
binding on the employe, the Union and the Corporation. Until the matter is
disposed of, no further deductions shall be made.
The contract also contains a multistep grievance procedure , the last step being an
appeal to an impartial umpire.
C. The strike and Morris' discharge
Returning to the events of July 7 , the toolroom employees reported and went to
their work stations at 7 o'clock that morning, the usual starting time; however, they
just sat there and refused to perform their normally assigned duties. As started
above, this stoppage was conceived at the Society meeting the evening before. The
employees informed the foremen that they would not work until checkoff cards were
returned; Industrial Relations Director Alexander did not learn until after the stop-
page began that the cards in dispute were those of the five aforementioned employees.
It is sufficient for purposes of this case to describe the further events of July 7 and
8 in broad outline. The stoppage was not authorized by the IUE, the statutory
bargaining representative; it was in defiance of the Company and the IUE and in
violation of the no-strike provision and both the IUE and the Company at all times
sought to have the strikers return to work. Morris, the Society director, was one
of the strikers and by virtue of that position he was a spokesman for the strikers and
a focal point of their activity. Fenton informed the strikers that the IUE had the
five checkoff cards, not the Company, and that the IUE alone was responsible for
obtaining them. Meetings were held that day between the IUE, the Company, and
representatives (including Morris) of the strikers and toward the end of the day
the strikers were still demanding the return of the five checkoff cards and they also
demanded that they be paid for time spent in striking and also that no discipline be
imposed on striking employees. Alexander rejected the strike-pay demands and he
stated that company decision respecting possible discipline would have to await
consideration of the matter. The strikers returned to work about 3:30 that afternoon.
About an hour after work began the following morning, individual employees again
stopped working and Morris testified that they did so in protest against the Com-
pany's refusal to pay them for the period of the strike the day before. Alexander
asked what Morris' own intentions were concerning working. Morris replied that his
action depended on whatever a majority of the men would decide.
The work stoppage ended on July 8. The Company suspended Morris later that
day pending a study of his participation in the strike. Morris thereupon requested
and obtained representation of his IUE committeeman and he filed a grievance under
applicable contract procedures. The Company finally terminated Morris on July 11,
and he filed a second grievance; the TUE is processing this grievance and it is pres-
ently before the impartial umpire. The Company also took disciplinary action against
95 other employees for strike participation.
In August the IUE delivered to the Company a number of checkoff cards in ac-
cordance with usual operating procedures under the contract. Among them, as al-
ready indicated, were the five cards under consideration here. The Company has
deducted dues since then, and none of the five employees has filed a grievance pro-
testing such deduction or otherwise challenging the validity of their cards.
D. Busefink's discharge °
The Company discharged Herbert Busefink in September 1959 at the IUE's request
because of Busefink's failure to maintain his membership in the IUE as required by
the contract; Busefink had approximately 10 years company seniority at the time.
Busefink was among the group of Society proponents who concertedly had re-
voked TUE checkoff authorizations in May 1958; and he was one of the same group
who were in default under union-security provisions of the contract in January
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1959, and whom the IUE thereupon advised to correct such situation within 5 days
or be discharged. Busefink was also among the 80 or so Society members who were
interviewed by the Company at the time and advised of the union-security conditions
of employment and who still did not become such required member of the IUE
until after the IUE had meanwhile requested his discharge for failing to achieve union
membership status during the mentioned 5-day period.
Busefink continued the practice of delaying payment of dues. On June 22, 1959,
for example, the IUE notified Busefink that the 60-day period for payment of May
dues would expire on June 30. Busefink thereupon paid his May dues a few days
before the contractual deadline. But that was all he paid at the time, and on July 15
the IUE again notified him that he would be in default unless he paid his June
dues by July 30. Busefink did nothing about this July 15 notification and an IUE
officer called to advise Busefink on the last day of July that he would be in default
unless his June dues were paid that same day. Busefink thereupon paid his June
dues on that last day. Again Busefink paid only 1 month's dues, and on August 14
the IUE once more sent him a letter to the effect that he would be in default
unless he paid his July dues by the end of August .4
Busefink did not pay the July dues, and by letter dated August 31 the IUE
requested Busefink's discharge for nonpayment of dues within the 60-day period.
Upon receipt of this letter on September 1, Webster (of Alexander's staff) suggested
that Busefink attempt to straighten out his status with the IUE. Busefink called
the IUE office and Fenton invited Busefink to appear before the union executive
committee which he did on September 2. Busefink testified that he had forgotten to
pay the July dues and he told the committee that his delinquency was a result of
oversight rather than deliberate intention on his part and he offered to pay (but
did not actually tender) the dues for July. The committee rejected his offer, where-
upon Busefink offered to pay (but did not actually tender) his current dues and
all arrearages and he also then offered to sign a checkoff authorization. The com-
mittee refused and in effect informed Busefink that it would not withdraw the request
for his discharge. The next day Busefink informed Webster of his meeting with
the committee, including the comittee's rejection of his mentioned offers. The IUE
did not withdraw its request for Busefink's discharge, and the Company thereupon
discharged him on September 4 for failing to satisfy the union-security provisions
of the contract.
E. Contentions and conclusions
1. Checkoff cards and "no-contract" dues
The General Counsel contends in effect that the Company and the IUE respectively
violated the Act by requiring Bower, Ulam, Burgess, Bendik, and Pukelis to sign
checkoff authorizations and to pay IUE dues for the no-contract period.
It is hornbook law that an employee covered by a valid union-security agree-
ment is obligated to comply with such terms as a legal condition of continued
employment and that, failing such compliance, the bargaining representative is
lawfully entitled to demand his discharge and the employer is lawfully entitled to
effect his discharge. There was a valid union-security agreement and the record
shows that the aforesaid five employees were part of an organized dissident group
whose practice it was to willfully delay payment of union dues in order, I find, to
harass the statutory bargaining representative; and the record further shows that
these five were among the same group who only a few months earlier had in fact
been in default under the contract. The employee body, this record shows, was
accorded every consideration by the IUE and the Company in the performance
of the union-security provisions of the contract; beginning with the events of
January 1959, the Company fairly and patiently investigated each situation of
claimed default and made certain that all employees understood the pertinent union
conditions of employment and the IUE gave ample and frequent notice of dues
delinquencies and approaching default and cooperated with the Company in avoiding
peremptory action on legitimate discharge requests in that connection. If the IUE
and/or the Company had desired to penalize employees for rival Society membership
they had many opportunities to do so; rather, their conduct was marked by restraint
and sympathetic understanding.
The primary function of labor organizations is to represent employees and they must
keep their house in economic order to carry out this purpose. A labor organization
4 Busefink testified that he did not receive this August 14 notification Whether or
not he did is immaterial ; he testified, moreover, that he was aware in August that he would
be in default unless he paid his July dues before the end of August
GENERAL MOTORS CORP., PACKARD ELECTRIC DIVISION 1117
has initiation fees and dues because it takes money to maintain itself as an organiza-
tion and to perform its proper functions, and it has current and long-term obliga-
tion to meet. Considering the background of delayed payments and default, the
IUE had reasonable grounds to believe that the only assured way to prevent recur-
rence of default by the five men was to require a checkoff authorization.
While the equities weigh heavily on the side of the Company and the IUE,
the law on the subject supports their position in regard to the checkoff matter even
apart from such considerations. The legal issue, in any event, is not reached so
far as the Company is concerned for, as indicated above and as I find, the Company
did not require and it had no part in requiring the five employees either to execute
checkoff authorizations or to pay any dues for the no-contract period and it did not
otherwise threaten the five employees in such connection.
The General Counsel and the Charging Party cite several cases 5 in purported
support of their proposition that it is unlawful to require an employee to sign a
checkoff authorization or to attempt to seek an employee's discharge unless he
executes such authorization. But the question in all these cited cases arose in
context lacking a valid union-security agreement, either there was no union-security
agreement at all or there was an agreement which was otherwise illegal. Indeed,
the Bayly case cited by the General Counsel illustrates the critical importance of a
valid union-security contract in resolving a checkoff issue: The Respondents in
that case had required employees to sign checkoff authorizations during the operative
period of an unlawful union-security agreement which was subsequently amended
to conform with the requirements of the Act. The Board thereupon directed the
Respondents to make whole the affected employees by reimbursing them for union
dues deducted pursuant to such chcekoff; however, the Board limited such remedy
only to the period of unlawful union-security conditions (103 NLRB 1342, 1372,
1373-1374).
Employees do not have a protected right to refrain from paying union dues
lawfully required under a valid umon-security contract or to be continually or
willfully delinquent in such respect. The checkoff requirement as to the five em-
ployees was merely incidental to the IUE's right to timely receipt of dues 6 and,
I find in the circumstances of this case, that such measure was both reasonable
and necessary to a fair administration of the contract with due regard for the
rights of all parties concerned, namely, the Company, the IUE, and the employees.
Even without considering the impact of the aforementioned grievance provisions
dealing specifically with checkoff matters and without regard to the fact that none
of the five employees availed themselves of such procedures, I accordingly con-
clude that neither the Company nor the IUE violated the Act by conduct respecting
checkoff cards of the mentioned employees . See Salant & Salant, Inc., 88 NLRB
816. And, as already stated, the Company in any event did not even engage in
and was not otherwise responsible for the conduct complained about in this
connection.
Discussion is unnecessary, however, to sustain, as I do, the General Counsel's
allegation that the IUE violated Section 8(b)(1)(A) and (2) by its conduct
respecting the payment of back dues by the five employees for the no-contract
period. See Montgomery Ward & Co., Incorporated, 121 NLRB 1552, 1557-1558;
Public Utility Construction and Gas Appliance Workers of the State of New Jersey,
Local 274, Plumbers, etc. (Public Service Electric and Gas Company), 120 NLRB
355, 357; NLRB v. Spector Freight System, Inc., et al., 273 F. 2d 272, 276 (C.A. 8),
and cases cited therein. J
2. Morris' suspension and discharge
The Company suspended and then discharged Morris for engaging in a strike in
violation of a valid no-strike agreement. Strike action in breach of contract is
generally not protected under the Act, and an employer is accordingly privileged
to discharge or otherwise discipline any or all employees for participating in
such unprotected conduct.? The General Counsel nevertheless contends that the
5 Bayly Manufacturing Company, 103 NLRB 1337; General Drivers, Chauffeurs and
Helpers, Local Union No. 886, etc (Unit Parts Company), 119 NLRB 222, enfd 264 F. 2d
21 (CA 10).
6 "[The] legislative history clearly indicates that Congress intended to prevent utiliza-
tion of union-security agreements for any purpose other than to compel payment of union
dues and fees " The Radio Officers' Union, etc. (A. H. Bull Steamship Company) v.
NLRB, 347 U S. 17, 41.
7 N L R B v Sands Manufacturing Co , 306 U S. 332, 355 ; Bechtel Corporation, 127
NLRB 891; California Cotton Cooperative Association, Ltd., 110 NLRB 1494, 1496-1497;
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike was caused by the Company's allegedly unlawful requirement of checkoff
authorization by the five mentioned employees, and he accordingly asserts the
strike to be protected under the Mastro Plastics doctrine.8 Morris' case turns,
therefore, on whether the strike was a protected activity.
The strike was misdirected against the Company for, as I have found above,
the Company did not have the authorizations and it had neither imposed nor
threatened to impose checkoff requirements on the five employees involved.
Mastro Plastics is therefore wholly inapplicable. Mastro Plastics is inapposite for
the further reason , also found above, that such checkoff requirement was in any
event not unlawful in the instant case. But I would find Mastro Plastics inapposite
here for still another independent reason, even assuming, contrary to the fact,
that the company had compelled checkoff authorizations and that such conduct
were unlawful. Measured by the facts and circumstances of the Mastro Plastics
case, such assumed violation in the present case would be slight indeed; the unfair
labor practices causing the strike in Mastro Plastics were described there as a
"willful, deliberate, widespread and grave" attack on a statutory bargaining repre-
sentative which was party to a no-strike contract and that strike "was in protest
of matters and actions not covered or in any respect demanded by the contract"
(103 NLRB 511 at 513, 514). The strike in the instant case was in defiance of
the incumbent statutory bargaining representative and in derogation of a no-strike
agreement and established contract procedures for the handling of grievances,
one such contract provision dealing specifically with disputes concerning checkoff
authorizations. It may hardly be said, even viewing the situation from the stand-
point of minority rival activity, and to require the five men to sign checkoff cards
for the deduction of dues legally required to be paid, was a serious threat, if
threat at all, to legitimate union activities or nonactivities. In fact, considering the
way these five employees had comported themselves, there is more than a little
reason to believe that a required checkoff was a means of protecting them from
valid discharge for recurring failure to maintain such payment. An objective of
this Act is to encourage industrial peace by compliance with lawful contractual
obligations, and parties and employees covered by such contracts are accordingly
to resolve their disputes through available contractual procedures without resort
to the unsettling self-help stratagems of strikes and lockouts. Strikes in the face
of no-strike commitments , are permitted under Mastro Plastics where self-help is
reasonably necessary to maintain the status quo and to protest serious infringe-
ments on statutory rights. However, the Mastro Plastics doctrine does not, I
conclude, protect any or all breach-of-contract strikes caused by unfair labor prac-
tices no matter how trivial the violation in the labor-relations context and irrespec-
tive of outstanding contractual procedures and remedies.9 See Mid-West Metallic
Products, Inc., 121 NLRB 1317, affd. 45 LRRM 2148 (C.A. 6), October 5, 1959.
Upon all the foregoing and without relying on additional matters urged by the
Company, I find that Morris participated in a strike which was unprotected on
at least three separate grounds, that the Company suspended and discharged
him for such reason , and that the Company did not thereby violate the Act.
3. Busefink's discharge
Acknowledging that Busefink had been in default under valid union-security
requirements for continued employment under the contract, the General Counsel
contends that the IUE and the Company violated the Act by respectively causing
and effecting Busefink's discharge at a time Busefink purportedly had tendered his
dues for IUE membership within the contract definition of that term. The General
Counsel cites as supporting authority the so-called Aluminum Workers 10 doctrine.
Reversing then established law on the subject,ll the Board enunciated the rule in
Aluminum Workers that, where an employee is in default for nonpayment of union
dues lawfully required under a valid union-security agreement , it is unlawful to
discharge such employee on the basis of a prior timely request therefor if, at
Mineweld Company, Division of Rasco, Inc., 127 NLRB 1616. Cf. N.L R.B v Fansteel
Metallurgical Corporation, 306 U S. 240, 259.
1 Mastro Plastics Corp., et al. v. N.L R B , 350 U S. 270, affg 214 F. 2d 462 (C.A. 2),
enfg 103 NLRB 511.
9 For a fuller discussion of this point by Trial Examiner Funke, see Arlan's Department
Store of Michigan, Inc., 133 NLRB No 56.
" Aluminum Workers International Union, Local Union No. 135, AFL, 111 NLRB 411,
112 NLRB 619, enfd 230 F. 2d 515 (C.A 7).
11 Chisholm-Ryder Company, Inc., 94 NLRB 508.
GENERAL MOTORS CORP., PACKARD ELECTRIC DIVISION 1119
any time before the discharge is effected, the employee makes "full and unqualified"
tender of delinquent dues.
Respondents' defense is threefold: first, that Busefink did not make "full and
unqualified" tender; next, that the Aluminum Workers doctrine is unsound in law;
and, lastly, that the particular circumstances involved here are sufficiently dis-
tinguishable to remove this case from operation of the doctrine.
While Busefink did not physically tender the amount of his arrearages, he
did offer to pay such amount at the meeting with the IUE committee. It would
have been pointless, upon the IUE's consequent refusal of this offer, to perform
the physical act of tender. "The law does not require a futile tender" and I accord-
ingly find that Busefink did everything necessary to satisfy the Aluminum Workers
requirement of "full and unqualified" tender. N.L.R.B. v. Murphy's Motor Freight,
Inc., et al., 231 F. 2d 654, 655 (C.A. 3).
Respondents express their disagreement with Aluminum Workers. And, in noting
the absence of any judicial support for the doctrine, Respondents point to the fact
that, of the three circuit courts of appeals which have considered the proposition, the
Second Circuit has rejected the theory "as an incorrect statement of the law," 12 the
Ninth Circuit concurs with the Second Circuit,13 and the Seventh Circuit did not
accept the doctrine in the Aluminum Workers case itself but enforced it on other
grounds.14 With all respect for the views of the circuit courts, suffice it to say that
the Board's own stated views are determinative here.
We come to Respondent's final contention that the Aluminum Workers doctrine
should in no event be applied where a dissident group has concertedly endeavored
to undermine a binding contract relationship between an employer and a certified
statutory representative and where, as one of its harassing tactics, this group has
concertedly and deliberately skirted and at times overstepped the boundaries of de-
fault under the contract by delayed payment of union dues and where the affected
employee (Busefink) has joined such practice. Respondents thus would distinguish
an accidental or innocent or isolated default situation from the case of willful and
concerted practice involved here. Perhaps the present case does reveal an unintend-
ed effect in the application of Aluminum Workers. If so, it is for the Board, not its
examiner, to say so; for in my judgment, the logic of Aluminum Workers is too
much a part of the case at bar for me to reach any result but consonant with
Aluminum Workers.
I accordingly find upon an Aluminum Workers theory, that the IUE unlawfully
caused and the Company unlawfully effected Busefink's discharge, thereby respec-
tively violating Section 8(b)(1)(A) and (2) and Section 8(a)(1) and (3) of the
Act le
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 described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices, I
shall recommend that they cease and desist from such conduct and related conduct
and that they take certain affirmative action designed to effectuate the policies of the
Act. The facts of this case do not require more than a limited order. Ordinarily,
the remedy for required payment of dues for a period not covered by a valid contract
is restitution of the amount of such dues. However, at the time these five employees
paid the dues for the no-contract period, they were not members of the IUE within
the contract definition and the contract therefore required them to pay initiation
fees as a condition of continued employment. The amount of dues for the no-
contract period is presumably very little more than the initiation fees. Because of
12 The International Association of Machinists, et al (New Britain Machine Co ) v.
N.L R B., 247 F. 2d 414, 418 (CA 2).
13 N.L R B v. Technicolor Motion Picture Corp , at al, 248 F 2d 348, 353 (C A 9)
N.L R.B. v International Woodworkers of America, Local Union No 13-4S3, 264 F. 2d
649, 654-655 (C.A. 9).
14 230 F. 2d 515.
16 I reject the suggestion that Busefink 's discharge was in any respect motivated by
reprisal for his Society membership.
1.120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the trivial amounts involved, under the circumstances I shall make no affirmative
recommendation in this connection.
I shall recommend that the Company offer immediate and full reinstatement to
Busefink to his former or a substantially equivalent position without prejudice to his
seniority and other rights and privileges, and that the Company and the IUE, jointly
and severally, make Busefink whole for any loss of pay suffered as a result of the
discrimination against him by paying him a sum of money equal to the amount he
would have earned from the date of his discharge until offer of reinstatement, less
net interim earnings, the backpay to be computed in accordance with F. W. Wool=
worth Company, 90 NLRB 289. The IUE may terminate its liability for further
accurate of backpay by notifying the Company that it does not object to Busefink's im-
mediate reinstatement and that it requests such reinstatement , and the IUE shall not be
liable for any backpay after 5 days from the giving of such notice. As a valid union-
security contract has been in effect at all times since Busefink's discharge, the Com-
pany and/or the IUE shall deduct from the net backpay the amount of IUE dues
which Busefink owed under the contract to the IUE at the time of his discharge and
the amount of all dues unpaid since then which Busefink would have been required
to pay to maintain such membership as a condition of employment ; such amounts
shall be paid over to the IUE by the Company and/or withheld by the IUE, and the
IUE shall thereupon credit Busefink's membership account in such amount.
No violation has been found in regard to the checkoff authorization of the five-
mentioned employees . I nevertheless feel impelled to mention my disagreement with
the suggestion that, should such violation be found, a proper remedy would in-
clude reimbursement to these five employees of all dues withheld thereunder. A valid
union-security agreement has been in effect at all times since the incident, and the
agreement requires these five, as it does all other employees, to pay membership
dues as a condition of employment. To order restitution of dues in these circum-
stances would in my opinion , be nothing short of "a windfall to the employees and an
unjust penalty" exceeding any authority granted under this Act. N.L.R.B. v. Ameri-
can Dredging Company, 276 F. 2d 286, 288 (C.A. 3). See Republic Steel Corpora-
tion v. N.L.R.B., 311 U.S. 7, 11-12; Consolidated Edison Co. of New York, Inc. v.
N.L.R.B., 305 U.S. 197, 235-236.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The IUE and the Society are labor organizations within the meaning of Section
2(5) of the Act.
3. The Company has violated Section 8 (a) (1) and (3) of the Act by discharging
Busefink.
4. The IUE has violated Section 8 (b) (1) (A) and (2), by causing the Company
to discharge Busefink and by seeking and threatening the discharge of Bendik,
Bower, Burgess, Pukelis, and Ulam unless •these employees paid back dues for a
period not covered by a union-security contract.
5. The aforesaid unfair labor practices are unfair labor practices within Section
2(6) and (7) of the Act.
6. The Company did not violate the Act as to Morris, and neither the Company
nor the IUE violated the Act in regard to the checkoff authorizations of Bendik,
Bower , Burgess, Pukelis, and Ulam, and the Company also did not require or
threaten to require these five employees to pay back dues for the no-contract period
as a condition of employment.
[Recommendations omitted from publication.]
Robert P. Scott, Inc. and International Hod Carriers , Building
and Common Laborers Union of America, Local No. 16, AFL-
CIO. Case No. 08-CA-636 (formerly 33-CA-636). December 8,
1961
DECISION AND ORDER
On November 29, 1960, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
134 NLRB No. 120.