Great Lakes District, Seafarers' Int'l Union

National Labor Relations Board - Board Decisions

Nov 27, 1964

149 N.L.R.B. 1114 (N.L.R.B. 1964)

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL MEMBERS OF UNITED PAPERMAKERS AND PAPERWORKERS , AFL-CIO,
AND ITS LOCAL 790, AND TO ALL EMPLOYEES OF CONTINENTAL CAN COMPANY, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT in any manner cause or attempt to cause Continental Can Com-
pany, Inc., to discharge employees because they have protested the manner in
which union officers conducted the affairs of the Union and/or Local 790, or
otherwise engaged in concerted union activities , or to discriminate against its
employees in any manner in regard to their hire or tenure of employment , except
to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner restrain or coerce employees of Continental
Can Company, Inc., or any other employee member of this Union, 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 organiza-
tion, as a condition of employment, as authorized by Section 8(a) (3) of the Act,
as amended by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL notify, in writing, Continental Can Company, Inc., and the employees
named below, that we have withdrawn our objection to their employment and
that we have no objection to their reinstatement and employment:
Leon Boguszewski James Greco Wolodymyr Jakovenko
Joseph DeCicco Mickey Greco Richard Romanski
WE WILL make whole the above-named employees for any loss of pay they may
have suffered as a result of the discrimination against them.
UNITED PAPERMAKERS AND PAPERWORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Great Lakes District , Seafarers ' International Union of North
America, AFL-CIO [Tomlinson Fleet Corporation ] and Wilbur
D. Kilfoyle . Case No. 8-CB-757. November 27,1964
DECISION AND ORDER
On June 15, 1964, Trial Examiner Sidney Sherman issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had not engaged in unfair labor practices as alleged in the complaint,
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Respondent filed exceptions to the Trial
Examiner's Decision and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
149 NLRB No. 109.
GREAT LAKES DISTRICT , SEAFARERS ' INT'L UNION 1115
Examiner 's Decision , the exceptions and briefs , and the entire record
in this case , and hereby adopts the Trial Examiner 's findings, con-
clusions, and recommendations.'
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
We do not adopt the Trial Examiner's comments at footnote 20 of his Decision re-
specting certain witnesses for the Respondent whose testimony he did not credit.
TRIAL EXAMINER'S DECISION
The original charge herein was served upon the Respondent on October 1, 1963, the
complaint issued on January 22, 1964 , and the case was heard before Trial Examiner
Sidney Sherman on March 4 and 24, and May 25, 1964 . Respondent filed a brief with
the Trial Examiner . The issue litigated was whether Respondent caused or attempted
to cause the Company to discharge Kilfoyle for reasons proscribed by the Act, thereby
violating Section 8 (b) (2) and (1) (A).
Upon the entire record and my observation of, the witnesses , I adopt the following
findings:
1. THE BUSINESS OF THE COMPANY
Tomlinson Fleet Corporation, herein called the Company, has a principal place of
business at Cleveland, Ohio, and is engaged in transporting cargo on the Great Lakes
between ports located in several States of the United States. The parties stipulated,
and I find, that its annual gross revenue from its interstate operations exceeds $50,000.
It is accordingly found that the Company is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Great Lakes District, Seafarers ' International Union of North America, AFL-CIO,
herein called Respondent , is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent violated Section 8(b)(2) and (1) (A)
of the Act by causing the Company to discharge Kilfoyle for failure to pay dues with
respect to a period when he was not employed by the Company. The answer denies
any violation of the Act.
A. Sequence of events
For some years prior to 1962, Kilfoyle, a member of Respondent, had worked for
the Company as a wheelsman. When, in June 1962, a dispute arose between him and
the Union over his alleged breach of a union rule by procuring employment for his
son on a Great Lakes vessel, an agent of Respondent, Bluitt, relieved Kilfoyle of his
Union book, giving him a receipt therefor in the form of an "in-lieu slip," 1 which
erroneously recited that Kilfoyle's dues were paid up to 1966. The significance of this
misstatement will appear later.
On August 11, 1962, Kilfoyle was laid off as a wheelsman, and did not return to
work until more than a year later-August 14, 1963-and then only as a watchman
(a lower classification than wheelsman), as he did not have sufficient seniority to
return as a wheelsman. His vessel was the G. A. Tomlinson.
On July 15, 1962, the Company and the Respondent entered into a contract for a
term of 1 year, which contained a clause requiring that, as a condition of continued
employment, all employees covered by the contract become members of the Respond-
ent within 31 days after (1) the date of execution of the contract, or (2) their date of
hire, whichever was later, and pay their "regular dues and/or initiation fees." (The
'The action was apparently a necessary prelude to the filing of Intraunlon charges
against Kllfoyle.
1116 DECISIONS OF NATIONAL LABOR RELATIONS ' BOARD
dues rate was $20 per calendar quarter. ), , This provision was continued without
change in a contract effective for 1 year from July 15 , 1963. , When he returned to
work in August 1963, Kilfoyle owed dues . for the last two quarters of 1962 and' the
first three quarters of 1963, and , under the Respondent 's constitution , his status was
that of a suspended member.
On August 13, the day before he returned to work for the Company , Kilfoyle, pur-
suant to the Company 's instructions ,, reported to an agent of Respondent , Boudreau,
for "clearance ." The latter cleared Kilfoyle, but only after reminding him of his dues
delinquency and giving him a slip which showed that he owed dues for five quarters as
well as an unspecified reinstatement fee, and which bore a notation that the foregoing
dues and fee were to be paid within 31 days.
While aboard the G . A. Tomlinson , Kilfoyle encountered various agents of
Respondent , but they made no request for dues until September 17, when "Scotty"
Aubusson , a representative of Respondent , boarded the vessel and made a dues
demand. (The exact terms of such demand are controverted and will be considered
below. ) Failing to receive a satisfactory response to such demand , the Respondent,
on September 18, wrote the Company citing the fact that Kilfoyle was "in arrears in
his dues," and had been "afforded an opportunity" by Boudreau , Aubusson , and vari-
bus other agents of Respondent , to pay his dues but had refused, and concluding with
a request for Kilfoyle 's discharge under the union -shop clause of the Respondent's
contract . On September 20 the Company discharged Kilfoyle in compliance with
Respondent 's request.
B. Discussion
The complaint alleges that Respondent violated , inter alia, Section 8(b) (2), which
forbids labor organizations or their agents-
to cause or attempt to cause an employer to-discriminate against an employee
in violation of subsection (a) (3) or 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 initia-
tion fees uniformly required as a condition of acquiring or retaining member-
ship....
Specifically, the complaint alleges that Respondent on September 20, 1963 , caused
the Company to discharge Kilfoyle, pursuant to a union -shop clause in the current
(1963-64 ) contract between Respondent and the Company , because he "failed to pay
dues to Respondent for a period of time when he was not employed" by the Company.
The General Counsel appears to have litigated the case on the theory that the gist
of Respondent 's violation was its insistence that Kilfoyle pay dues for a period during
which he was unemployed-namely, the last two quarters of 1962 and the first two
quarters of 1963.2 Additionally , General Counsel contends , although the complaint
does not expressly so allege, that Respondent 's procurement of Kilfoyle 's discharge was
unlawful because it was not only for failure to comply with an excessive dues demand,
but also for failure to contribute to Respondent 's publication , "The Log."
As against these various contentions , the Respondent apparently asserts that (1) its
only demand was for dues for the current quarter , (2) in any event, the alleged
demand for back dues would not be improper , as a union -shop clause applicable to
Kilfoyle was in effect during the period to which such demand related , and Kilfoyle's
obligation under such clause was not suspended by reason of his layoff, and (3)
Kilfoyle was , moreover , not entitled to any relief, because he failed to make a proper
dues tender and there is no basis for excusing such tender.
These defenses will be considered in order.
1. The Respondent 's demand
The determination of the substance of Respondent 's demand upon Kilfoyle depends
on a resolution of conflicting testimony as to the events of September 17. Analysis
of the relevant evidence impels me to find that Respondent's representative , Aubusson,
on that date demanded that Kilfoyle pay dues for the current quarter and the four
preceding quarters. This finding is based on the following considerations:
a. The fact that there is no dispute that Boudreau 's oral demand, on August 13, and
his written notation related to past, as well as current dues, and such notation called
2 General Counsel appears to concede that Kilfoyle was covered by a valid union-
security clause throughout that period and that but for his unemployment be would be
required to pay dues for such period as a condition of employment.
GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 1117
for payment of all arrears within 31 days, which corresponded to the grace period in
the union -shop clause . I infer from this that it was Boudreau 's position that payment
of all arrears was required as a condition of continued employment under the union-
shop clause, and Respondent 's reference in its September 18 discharge request to the
fact that Boudreau had offered Kilfoyle an opportunity to pay his dues , evidences its
awareness of, and acquiescence in, Boudreau 's position.
b. The testimony of Kilfoyle regarding the crucial conversation between him and
Aubusson on September 17, which testimony was to the effect that Aubusson opened
the conversation by announcing that he had "orders from headquarters to pull [Kil-
foyle] off the ship or collect [his ] dues and [his ] reinstatement"; and, that when
Kilfoyle showed Aubusson his "in lieu " slip with the notation that his dues were paid
to 1966, Aubusson offered to waive the reinstatement fee, demanding only "$100 dues
and $5 for the Log."
In opposition to the foregoing , Respondent offered the testimony of Aubusson that
on September 17, in conformity with the instruction of Respondent 's secretary-
treasurer , Farnen, the witness requested only that Kilfoyle pay the dues for the
current quarter . However, when , under ci oss -examination , Aubusson was confronted
with his pretrial affidavit, in which he named Respondent 's business agent, Drewes,
rather than Farnen , as the one who had instructed him as to what demand to make
upon Kilfoyle, Aubusson abruptly repudiated his piior testimony as to Farnen's role
in the matter , acknowledging the veracity of the affidavit . Aubusson thereby gave the
lie not only to his own testimony but also to that of Farnen (who had preceded him
on the witness stand ), that prior to the September 17 incident , he instructed Aubusson
not to request from Kilfoyle any dues for past quarters . Moreover , Farnen , himself,
substantially modified his own testimony 3 and, when pressed to state whether he
would still have requested Kilfoyle's discharge if he had paid his dues foi the current
quarter, Farnen vouchsafed only the evasive answer that he could not legally have
made such a request.
Finally, Brown , who was a witness to the September 17 incident , and was called by
Respondent , while insisting , albeit somewhat equivocally , that Aubusson had asked
only for "current dues ," admitted that he heard Aubusson say to Kllfoyle, "You have
got to bring this up . You are not even paid up for this quarter " The significance of
the emphasized word is not apparent unless the preceding sentence related to a
demand for dues for past quarters.
In view of the foregoing matters affecting the credibility of Aubusson and Farnen,
as well as the circumstantiality of Kilfoyle 's testimony regarding Aubusson's dues
demand, I credit Kilfoyle on that point and find that Aubusson on September 17, in
effect, told Kilfoyle that unless he paid all five-quarters dues owed by him, Respondent
would procure his discharge.
2. The propriety of Respondent 's demand
As to Respondent's second contention-that a demand for back dues , even if made,
was proper-General Counsel apparently agrees that such a demand would have been
proper had Kilfoyle not been laid off during the period with respect to which such
dues accrued , but he contends that the fact that Kilfoyle was so laid off suspended
his dues obligation under the 1962-63 union -security clause for the duration of such
layoff. This contention raises a question which does not appear to have been squarely
decided by the Board 4
3 Thus, he testified at first that in instructing Aubusson to insist only on current dues, he
was acting on advice given him by a Board agent. However, after considerable equivoca-
tion and evasion on this point , under cross -examination , Farnen abruptly abandoned any
claim that he had spoken to the Board agent before the 17th , admitting that his fist con-
versation with her had been after that date ; and he advanced , for the first time, the
contention that it was his own attorneys who had advised him before that date what dues
he could legally demand of Kiltoyle
* General Counsel cites Convair, A. Division of General Dynamics Corporation , 111 NLRB
1055, for the proposition that an employee ' s obligation under a union - security contract is
suspended with respect to any period that lie is separated from the bargaining unit. Re-
spondent , on the other hand, cites National Automotive Fibres , Inc, 121 NLRB 1358,
for the contrary proposition While the facts in the latter case aie closer to the instant
one, the resolution of the point for which Respondent cites the case was not necessary to
the decision thereof, and it is therefore arguable that the Board ' s holding on that point
was merely dictum.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel contends that Respondent 's demand was improper , in any event,
because it included a request that Kilfoyle make a $5 contribution to The Log,5 and
that , in view of the context in which the demand was made, the inference is warranted
that compliance with this request , as well as the demand for back dues , was regarded
by Respondent as a condition of Kilfoyle 's continued employment 6
Since, for reasons that will appear below, the result reached in this case would be
the same, whether the Respondent 's demand was proper or improper , I will make no
finding on that point but will assume that Aubusson 's demand for five-quarters dues
was improper , in that Respondent could lawfully require Kilfoyle to pay the dues
only for the current quarter as a condition of remaining aboard ship.
3. The "free rider" issue
We turn now to the contention that Kilfoyle is not entitled to any relief because he
made no tender of dues in any amount and there is no basis here for excusing such
tender
As already noted, Section 8(b)(2) forbids a union to cause discrimination against
an employee "with respect to whom membership ... 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.. . .
[Emphasis supplied.]
It is clear that there was no physical "tender" by Kilfoyle of any part of the dues
owed by him on September 17. However, General Counsel contends that such
physical tender was excused here under the rule of the Eclipse Lumber case, and
related cases , 8 holding that insistence by a union on the payment of an amount in
excess of what it may properly demand, relieves the employee of the duty to tender
a lesser amount , in view of the apparent futility of such tender; and that it is unlawful
for the union to procure the employee's discharge for failure to tender under such
circumstances
However, so far the Board has not had to consider whether to extend this rule to an
employee who not only makes no physical tender but also, as Respondent contends
was the case here, is resolved not to pay any part of his dues.
In resolving this issue, it becomes necessary to consider, first, whether Kilfoyle in
face entertained such a resolve.
Kilfoyle acknowledged that on September 17, in response to Aubusson's dues
demand, he mentioned the fact that he had a "receipt" (the "in lieu" slip) showing that
his dues were paid to 1 966, but Kilfoyle insisted that he, nevertheless, unconditionally
offered to pay the current quarter's dues and that he was prepared to make such pay-
ment on the spot. However, according to Aubusson, Kilfoyle at first refused to pay
any dues, claiming that the "in lieu" slip absolved him of any dues obligation until
1966; and, although Kilfoyle subsequently offered, inter alia, to pay all dues owed by
him, this was only upon condition that Respondent would upgrade his seniority as a
wheelsman.a Although I have credited Kilfoyle as to another phase of this conversa-
tion (Aubusson's demand for back dues), for reasons set forth below I am constrained
to reject his testimony that he unconditionally offered to pay the current quarter's dues
Such testimony, unlike the balance of his version of the incident, departs from a
direct quotation of the colloquy between him and Aubusson and is expressed in con-
clusionary language. It thus lacks the directness and the cogency of the rest of his
account of that incident Even more significant is the mutually corroborative testi-
mony of certain of Kilfoyle's shipmates that prior to his encounter with Aubusson
Kilfoyle had not only referred to the fact that he had a statement from Respondent
that his dues were paid up to 1966, but also had announced that he intended to hold
the Union to this statement and had no intention of paying any accrued dues for that
reason. Kilfoyle 's own testimony on this point is replete with equivocation and self-
contradictions He admitted showing the " in-lieu" slip to various persons, including
5 It is clear that such contribution did not constitute "periodic dues [ or] initiation
fees uniformly required as a condition of acquiring or retaining membership ," within the
meaning of the Act. The Respondent's constitution makes no reference to such a
contribution and Farnen admitted that it was normally not compulsory but purely
,voluntary
8 Respondent contends that this ground for finding a violation of Section 8(b) (2) was
not alleged in the complaint or adequately litigated . For reasons indicated in the text,
1 do not pass on this contention
7 The Eclipse Lumber Conipeny, Inc, 95 NLRB 464
8E g., Murphy's Motor Freight, Inc, 113 NLRB 524
9 He would thereby be assured steady employment in that classification
GREAT LAKES DISTRICT, SEAFARERS ' INT'L UNION 1119
Aubusson , and, when pressed as to whether he had ever announced his intention to
take advantage of the error in the slip , he gave the following answers successively:
(1) "Not that I know of," ( 2) that he could have said it, but did not recall, ( 3) (when
he returned to the stand ) that the question of his holding the Union to Bluitt's mistake
"was not brought up," and (4) that he had not intended to take advantage of the
Union's mistake . Even more puzzling are Kilfoyle's attempts to explain why he had
not paid his current quarter 's dues before Aubusson's visit . When pressed on this
point, Kilfoyle at first answered , "I can't tell you ," but promptly thereafter ascribed
such failure, rather confusedly , to the fact that he was waiting for a hearing on
Respondent 's charges against him When asked why he nevertheless offered to pay
his current dues on September 17, despite the fact that such hearing had not yet
been held, Kilfoyle gave a series of unenlightening answers. Finally , he contended
that he would have paid his dues upon the expiration of the contractual grace period,
if he had in the meantime received notice of the hearing on the Union 's charges
against him or of the Board 's action on his charges against the Union. However, he
promptly attempted to retract the foregoing italicized qualification , interjecting the
remark that he had been advised by a "Judge Parsons" in Chicago to pay his current
dues. The apparent implication on this was that it was this advice by Judge Parsons
which prompted him to offer to pay the current quarter 's dues. However, Kilfoyle
later professed uncertainty as to whether he had spoken to Judge Parsons before or
after the Aubusson incident ; and finally appeared to abandon any reliance on alleged
advice by Judge Parsons , asserting that he had been advised by his lawyers in August
1963 to pay his current dues
In addition , Kilfoyle was uncertain as to whether he had told Respondent he
would not pay his dues until he had a hearing on the charges against him; and,
although on his first appearance on the stand he admitted that he had not told the
ship's master on September 20 that he had offered to pay his current dues , he subse-
quently attempted to retract this admission.
In view of all the foregoing circumstances reflecting on Kilfoyle 's credibility in
this area , I credit the testimony of Respondent 's witnesses that, even prior to his
encounter with Aubusson , Kilfoyle had taken the position , in conversation with his
shipmates , that he would take advantage of Bluitt's mistake and not pay any dues
prior to 1966 , and I credit Aubusson 's testimony , which is substantially confirmed
by Kilfoyle , that on September 17, Kilfoyle asserted that he owed no dues till 1966
because of the "in-lieu" slip, and I reject Kilfoyle 's testimony that he nevertheless
offered unconditionally to pay his dues for the current quarter. I find rather, as
Aubusson 's testimony implies, that Kilfoyle attempted to use the error in the "in-lieu"
slip as a bargaining point, in his effort to exact concessions from Respondent , offering,
in effect, inter alia, to waive any reliance on Bluitt's mistake and pay all his back
dues, in return for upgrading of his seniority as a wheelsman 10 In sum, the only
conclusion I can draw is that Kilfoyle was determined not to make any dues payments
until 1966, unless he received some quid pro quo.
There remains to be considered whether Kilfoyle is nevertheless entitled to relief
under the Eclipse Lumber rule-or, in other words , whether that rule excuses not
only a failure to tender , but also a determination not to pay , any dues.
A cardinal purpose of union-security provisions in collective -bargaining contracts
is to distribute equitably the cost of union representation among those benefiting
thereby, or, in other words , to eliminate the "free rider," i e., the employee who,
while content to receive the benefits of union representation , is unwilling to bear his
fair share of the cost thereof. It was this purpose which led Congress to incorporate
in the Wagner Act the proviso to Section 8 (3) of that Act, which sanctioned union-
security arrangements generally.
In 1947, in considering amendments to the Wagner Act , the attention of Congress
was drawn to the fact that unions had made improper use of union -security clauses,
invoking them not only against free riders , but also against members who refused,
for example , to pay political assessments , or who gave testimony in court adverse to
a union agent 11 While recognizing the continuing validity of the policy of elimi-
nating free riders, Congress sought ways and means of safeguarding against the fore-
going abuses that had grown up under the blanket sanction given to union -security
arrangements by the Wagner Act . 12 To this end, Congress amended the old provi-
10Kilfoyle admitted that there was a discussion between him and Aubusson on Septem-
ber 17 of a general settlement of Kilfoyle 's differences with Respondent , which included
reterence to the matter of upgrading of his seniority as a wheelsman
" Legislative History, Labor-Management Relations Act, 1947, p. 1010.
I= Id. pp. 411-413
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions of Section 8(3) by adopting the present language of Section 8 (a)(3), and
incorporating therein, i nter alta, proviso (B), and the related provisions of Section
8(b)(2). These changes were addressed specifically to the problem of how to permit
unions to eliminate free riders, while at the same time preventing them from effecting
discharge of employees for reasons unrelated to their willingness to pay their proper
share of the cost of union representation . 13 The solution devised was to outlaw any
discharge under a union -shop clause for reasons unrelated to the failure of the
employee to make a proper tender. The Senate report , in referring to proviso (B)
as it appeared in the Senate bill,14 states:
. expulsion from a union cannot be a ground of compulsory discharge if the
worker is not delinquent in paying his initiation fee or dues ....
It is evident from the foregoing that proviso (B) (and the parallel language of
Section 8 (b) (2)) do not reflect any change in the attitude of Congress toward free
riders, but seek to protect from discharge only employees who are not free riders and
are willing to pay their proper dues obligations.
The Board 's view has been consistent with this approach . Thus, in The Baltimore
Transfer Company of Baltimore City, Inc ., case,15 which involved the discharge of
an employee at a union 's request pursuant to a union -shop clause , because of dues
delinquency , it appeared that the employee had been fined by the union and that the
union had repeatedly refused to accept his dues unless he paid the fine and caused
his discharge because of the delinquency thus created . The respondent contended
that, while the nonpayment of the fine was not a permissible ground for discharge,
the discharge was nevertheless not unlawful because there had been no "tender" by
the employee of his duties , as required by proviso (B) in Section 8(a)(3) and by
Section 8 ( b) (2). In rejecting this contention , the Board noted that the employee had
initially made a physical tender of his dues, which had been rejected , and that there-
after the employee had repeatedly advised the union of his willingness to pay his
dues, but without avail. The Board then stated , "Under these circumstances, we find
that the complainant had clearly indicated his immediate willingness to pay his dues
and arrearages and was not obliged to continue to make the useless gesture of actu-
ally handing the money to the Union 's cashier each time in order to fulfill the obliga-
tion of `tender ' required by proviso ( B) of Section 8(a)(3) and Section 8(b)(2)."
Thus the Board, while dispensing with the requirement of a continuing tender,
stressed the fact that the employee had manifested his willingness to pay what the
union was entitled to demand ( and, hence , could not be denominated a free rider).
In the The Eclipse Lumber Company, Inc., case,1° cited by the General Counsel, the
Board similarly found unlawful the discharge pursuant to a union -security contract of
one, Marl, after he had rejected the union 's demand that he pay a sum which included
not only current dues but also dues for a period antedating the contract . However,
it appeared that Marl, before his discharge , had indicated to his foreman and his
shop steward his willingness to pay the current dues . While finding that there had
been no "formal tender" by the employee in any amount , the Board held that such
tender was "unnecessary in cases involving proviso ( B) when the circumstances indi-
cate that such a tender would have been a futile gesture "
Thus, although not always clearly articulated , the thrust of the foregoing and
related cases appears to be that, where the circumstances are such that it may be
inferred that but for the union 's excessive demand the employee would have made a
proper tender and that he was deterred from doing so by the apparent futility thereof,
it would be inequitable to deny relief to the employee because of his failure to make
such tender 17 It does not follow that this "futility " rule should be extended to the
case of an employee, like Kilfoyle, who , as found above , was an avowed "free rider,"
and who, it is clear, was not deterred from making a tender by the nature of Respond-
11 Ibid
14 lbid
1E 94 NLRB 1680
10 95 NLRB 464.
17 Thus, in Brunswick -Balke- Callender Company , 115 NLRB 518 , 520, the Board took
pains to negative any implication that the claimant was a free rider , stressing the "per-
suasive evidence that [he ] was willing to meet any lawful financial obligations to the
Union to retain his job " See also Peerless Tool and Engineering Co , 111 NLRB 853,
Westinghouse Electric Corporation ( Sunnyvale Plant ), 96 NLRB 522 , Bloomingdale's,
107 NLRB 191 ; Cottman's Builders Supply Co, Inc, 101 NLRP. 327 . In all of these
cases, it was found that at some point the employee involved had tendered or offered to
pay the sum that the union was entitled to exact In none of these cases was there any
finding , as there is here, that the employee was averse to paying such sum
IBEW, LOCAL 322 1121
ent's demand , but was motivated solely by his aversion to paying any part of his dues
obligations and would not have complied even with a proper demand. I do not believe
that the decided cases require that a failure to tender under such circumstances be
excused , or that such a result would be consistent with the congressional policy
underlying Section 8 (b)(2) and proviso (B) in Section 8(a)(3). That policy, as
we have seen , was not to protect free riders against excessive union demands, but
rather to insure that employees who were willing to pay their financial obligations
were not discharged for improper reasons.
It is one thing to dispense with the statutory requirement of objective proof-in
the form of a tender-of an employee's willingness to pay his fair share of union
representation , where the union 's conduct deters him from satisfying this requirement.
It is quite a different matter to require no proof at all of such willingness to pay, or
to deem immaterial the proof in the record that the employee was in fact unwilling
to pay for reasons unrelated to the terms of the union's request.
Accordingly , in view of all the foregoing considerations , I find that, by causing
Kilfoyle's discharge , Respondent did not violate Section 8(b) (2)18 or ( I) (A) of the
Act, and I will recommend that the complaint be dismissed.
RECOMMENDED ORDER
It is ordered that the complaint herein be, and it hereby is, dismissed.19
18 Had the record shown that the Company , in discharging Kilfoyle, had reasonable
grounds for believing that his discharge was sought , at least in part, because of his re-
fusal to pay for The Log, it would be arguable that such discharge fell within the inter-
diction of proviso ( A) of Section 8(a) (3), and that , by causing such illegal discharge,
Respondent violated Section 8 ( b) (2). However , General Counsel disclaimed any reliance
on such a theory , and the record does not, in any event, warrant a finding that the
Company had reason to believe that Aubusson had demanded that Kilfoyle pay for The
Log. (Even if one credits Kilfoyle ' s testimony that he told the master of his vessel that
Aubusson had asked for "105 dollars ," this would hardly constitute notice that this sum
included $5 for The Log .) Moreover , the considerations cited above that militate against
extending the protection of Section 8(b) (2) to "free riders" would still be applicable.
19 One cannot condemn too strongly the conduct of Respondent 's agents in this case in
giving admittedly false testimony in their efforts to defeat Kilfoyle ' s claim. That Kilfoyle,
as I have found, resorted to like measures is no justification. However, this is a matter
for consideration by another forum.
International Brotherhood of Electrical Workers, Local 322 1 and
Ets-Hokin & Galvan/Hood Corporation (A Joint Venture)'
and International Union of Operating Engineers 3 and Inter-
national Hod Carriers , Building and Common Laborers of
America.4 Case No. 27-CD-53. November 27, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following a
charge filed by Ets-Hokin & Galvan/Hood Corporation, herein called
the Employer, alleging that the International Brotherhood of Elec-
trical Workers, Local 322, herein called IBEW, had violated Section
1 Appearances were also made on behalf of the International Brotherhood of Electrical
Workers, Locals 1525 and 111.
2 The name of the Joint Venture appears as amended at the hearing.
3 Counsel appearing on behalf of the International Union of Operating Engineers, also
represented its Locals 326, 9, and 571.
*Counsel appearing on behalf of the International Hod Carriers , Building and Common
Laborers of America , also represented its Locals 880 and 1219.
149 NLRB No. 112.
770-076-65-vol. 149--72