International Association of Machinists

National Labor Relations Board - Board Decisions

May 29, 1958

120 N.L.R.B. 1223 (N.L.R.B. 1958)

INTERNATIONAL ASSOCIATION OF MACHINISTS 1223
as the employees requested at the Lorain plant have been included in
the multiplant unit for a number of years, it follows, as in the case of
the General Motors petitions above, that the proposed unit, limited to
powerhouse employees of the single plant, is too limited in scope and
therefore inappropriate for purposes of collective bargaining.16 We
shall therefore dismiss this petition also.
In view of our decision to dismiss all the petitions on the foregoing
grounds, we find it unnecessary and therefore do not pass upon the
merits of any other issues raised by any of the petitions in the course
of these proceedings.
[The Board dismissed the petitions.]
19 St. Regis Paper Co., 101 NLRB 655.
International Association of Machinists , Precision Lodge No. 1600
[Adel Precision Products , Division of General Metals Corpora-
tion] and Robert M. Bennett . Case No. 21-CB-933. May 29,
1958
DECISION AND ORDER
On December 2, 1957, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
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 brief, and the entire record in
the case. It hereby adopts the Trial Examiner's findings and con-
clusions.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard by the duly designated
Trial Examiner at Los Angeles, California , October 21, 1957, on complaint of
120 NLRB No. 158.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel of the National Labor Relations Board, the latter hereinafter
called the Board, issued pursuant to a charge filed by Robert M. Bennett, an
individual, and answer of International Association of Machinists, Precision Lodge
No. 1600, AFL-CIO, hereinafter called the Respondent or the Union. The complaint
alleged in substance, and the answer denied, that the Respondent violated Section
8 (b) (1) (A) and (2) of the National Labor Relations Act, hereinafter called the
Act, by causing Adel Precision Products, Division of General Metals Corporation,
hereinafter called the Employer or Adel, to discharge its employee, Robert M.
Bennett, for reason other than his failure to tender periodic dues and initiation fees
uniformly required. The General Counsel's representative at the hearing engaged
in oral argument upon the completion of the evidence, and the Respondent has filed
a brief.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Adel Precision Products, Division of General Metals Corporation, is a California
corporation engaged at Burbank, California, in the manufacture of component parts
for aircraft and guided missile industries. It annually ships to points outside
California products valued in excess of $50,000.
The parties agree and it is found that Adel is engaged in commerce within the
meaning of the Act and that the Board will assert its jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning of Section 2 (5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
The facts material to a decision in this case are undisputed.
Robert M. Bennett was employed by Adel on June 13, 1957. At the time of his
employment he was informed that Adel had a bargaining agreement with the Union,
and was given a copy of the agreement . This agreement contained a union-shop
clause requiring employees not already members of the Union to acquire member-
ship within 31 days, or, with respect to new employees, within 31 days of their
employment. The contract further provided that if an employee failed to comply
with this requirement, the Union should notify Adel in writing of the employee's
failure to comply, within 5 working days prior to requesting the employee's discharge.
It was the practice of Adel thereupon to notify the employee in question that he
would be discharged unless Adel was advised by the Union within the 5-day period
that he had complied with the union-shop requirements. The contract further
provided that the first 30 days of employment were probationary and during that
period the continued employment or termination of employment of newly hired
employees was within the sole jurisdiction of Adel.
Prior to being employed by Adel, and at a place of prior employment, Bennett
had been a member of an affiliated local of the Union, and when he left this place
of prior employment he obtained an honorary withdrawal card. This card carried
with it no benefits or privileges of membership, but provided that if presented by
its holder together with a fee of $2 within 5 days of its holder's again becoming
engaged in employment coming under the jurisdiction of the Union, its holder would
thereupon be reinstated to membership in the Union. It was further stipulated
on the card that if its holder did not present it together with the $2 fee
for reinstatement in the Union within 5 days of becoming engaged in employment
under the jurisdiction of the Union, the withdrawal card was automatically canceled.
Bennett did not present his honorary withdrawal card together with the requisite
fee to the local office of the Union within 5 days of becoming employed by Adel.
Possibly he may have chosen to wait until he had notice that he had served his
probationary period satisfactorily before renewing his affiliation with the Union,
but be that as it may, when he failed to present the withdrawal card within 5 days
of becoming employed by Adel, the card, by its own terms, was automatically
canceled.
By letter dated July 15 , the Union requested Adel to discharge Bennett, among
others, on July 19 , unless by that date the Union had notified Adel that he had
applied for membership in the Union . Adel thereupon notified Bennett of the
Union's demand and Bennett 's obligation under the contract to meet the membership
INTERNATIONAL ASSOCIATION OF MACHINISTS 1225
requirements. After receiving this notice from Adel, Bennett went to the business
office of the Union's local and tendered his withdrawal card and the $2 fee. This
offer was refused because he had not made a proffer of the card together with the
requisite fee within 5 days of becoming employed by Adel. At the same time he
was advised that as a former member of the Union who had let his membership
lapse, he would be required to pay a $15 reinstatement fee. This fee was uniformly
required of all former members who had not deposited withdrawal cards within the
5-day limit or for any reason had let their membership lapse. Bennett refused to
pay the $15 reinstatement fee. It is his testimony that he offered to pay the $10
initiation fee uniformly required of all new members, and that this was refused.
Ethel Pendleton and Louis Mall, the Union's office employees who interviewed
Bennett on this occasion, denied that he made a tender of the $10 initiation fee but
admitted that such a tender would have been refused because, under the Union's
constitution and bylaws, former members who had let their membership lapse were
uniformly required to pay the $15 reinstatement fee. It is immaterial whether
Bennett made a specific tender of the $10 fee inasmuch as it was made clear to him
that nothing short of the reinstatement fee would be accepted and that if he did not
pay the reinstatement fee the Union would require his discharge. A futile tender,
where it is made clear that the tender would be futile, is not required. However,
I am convinced and find that, whether expressed in a direct tender or not, Bennett
made it known to the Union's agents that he was willing to pay the $10 initiation
fee, though not willing to pay the $15 reinstatement fee.
Allowing for the full 5 working days from receipt of the Union's notice, Adel,
pursuant to the Union's demand and the terms of its agreement with the Union,
discharged Bennett on July 19.
B. The issues
The validity of the Union's contract with Adel is admitted. The issue is whether
the Union's demand for Bennett's discharge, predicated upon his refusal to pay a $15
reinstatement fee, was for reason other than his failure to pay periodic dues and
initiation fees uniformly required; and whether because of the cancellation of his
honorary withdrawal card upon his failure to tender it with the nominal reinstate-
ment fee of $2 within 5 days of his employment by Adel, and the subsequent require-
ment of the $15 reinstatement fee, he was restrained and coerced in his right to
refrain from union affiliation within the 31-day period dating from his employment.
The General Counsel's position is that Bennett was penalized by the Union for
refraining from renewing his union affiliation by the filing of his honorary withdrawal
card within 5 days of becoming employed by Adel, when he had a right under the
union-shop agreement to wait until he had successfully passed his probationary period
before affiliating with the Union. In this situation, the General Counsel argues, the
imposition of a $15 reinstatement fee instead of the $10 initiation fee required of
new members was discriminatory, and the discharge demand was, accordingly, for
reason other than Bennett's failure to tender periodic dues and initiation fees
uniformly required.
The position of the Respondent Union is that its classification of former members
who had let their membership lapse , and new members, in separate categories with
different but uniformly applied membership fees, was a reasonable one, nondis-
criminatory, and in conformity with the requirements of the Act. The Union argues
that the Board's decision in Food Machinery and Chemical Corporation, 99 NLRB
1430, is controlling. The General Counsel relies on the Stacker case (Local 153,
International Union, United Automobile, Aircraft and Agricultural Implement Work-
ers of America, UAW-CIO (Bendix Aviation Corporation), 99 NLRB 1419), the
earlier decision in Ferro Stamping and Manufacturing Co., 93 NLRB 1459, and the
more recent decision in Newspaper Guild of Buffalo, Local #26, American News-
paper Guild (Niagara Falls Gazette Publishing Corporation), 118 NLRB 1471.
C. Conclusions
In the Food Machinery case, relied on by the Respondent , the respondent union
required of former members who had let their membership lapse a reinstatement fee
of $60 , whereas employees who had not formerly been affiliated with it were required
to pay an initiation fee of only $30 . When a former member refused to pay the
reinstatement fee, the union , acting under its union-shop agreement with the em-
ployer, caused his discharge . The Trial Examiner held that the imposition of the
reinstatement fee, twice that of the initiation fee required of a new member, was
discriminatory and not a fee uniformly required within the meaning of the Act. Ac-
cordingly , he held the union in violation , inter alia, of Section 8 (b) (1) (A) and (2)
of the Act. The Board overruled him because there was no evidence of a discrimina-
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory motive in the requirement of the higher reinstatement fee, such as was found
in the earlier Ferro Stamping case, and because reasonable classifications of applicants
for membership with an accompanying differential in membership fees are per-
missible. The following language from the Board 's decision has significant bearing
on the situation here:
Under the Respondent Union's practice, Bauer , as a former member of another
affiliated lodge, would have been charged only a nominal fee if he had held an
honorary withdrawal or retiring card from Local 394. -In other words, all that
the Respondent Union has done in this case is to adopt a rule that former mem-
bers are entitled to special consideration, more or less favorable than that
accorded new members depending on the history of the individual's association
with its affiliated organizations. Similarly, the Respondent Union has accorded
special consideration to recently discharged veterans, who are admitted without
the payment of any initiation fee. Were we to adopt the rationale of the
minority, new members of the Respondent Union presumably could claim in
some cases that they were being subject to discriminatory treatment solely be-
cause they were not former members of the Respondent Union or veterans at
a time when they were not obligated to enter into either category. .. .
.. . the Board has construed Section 8 (a) (3) and 8 (b) (2) of the Act to
permit a labor organization holding a union-security agreement to charge, as a
condition of acquiring or retaining membership, different initiation fees and
periodic dues provided they are based on a reasonable classification; that is, one
that is not discriminatory.
Here, as in Food Machinery, the requirement of a reinstatement fee for former
members who had let their membership lapse in excess of that charged new members
was a matter of long-standing practice and provided for in the Union's constitution
and bylaws. Bennett was not in any way singled out for the application of the higher
fee but the same test was applied to him that would have been applied to any other
former member whose membership had lapsed. Indeed, the whole matter of the
reinstatement fee was handled by two office employees who simply went by the book
and had no discretion to do otherwise. There was therefore no discriminatory motive
such as was found to exist in the Ferro Stamping case, or that the Board found to be
a distinguishing factor in the Stacker case impelling it to find a violation in Stacker
but not in Food Machinery. Here, as in Food Machinery, the initiation fee was
waived for veterans, and as the Board remarked in that case if no differential in fees
based on reasonable classifications were permissible, nonveterans might be heard to
complain that it was discriminatory for them to be required to pay any initiation fees.
There is in fact only one distinguishing factor of moment between the factual situa-
tion here and that which the Board passed on in Food Machinery. Bennett had a
withdrawal card from an affiliated local and this was canceled by its own terms when
he did not present it within the 5-day period following his employment by Adel,
whereas in Food Machinery the employee required to pay the higher reinstatement
fee had no withdrawal card. Is this a material distinction? I think not. It appears
to me that the Board has taken this situation into account in its Food Machinery
decision, when it remarks that had the employee involved in that case held an
honorary withdrawal card he might have obtained reinstatement at a nominal fee,
and then comments: "all that the Respondent Union has done in this case is to adopt
a rule that former members are entitled to special consideration, more or less favor-
able than that accorded new members depending on the history of the individual's
association with its affiliated organizations." That is all the Respondent Union has
done in this case. Bennett might have cashed in on his honorary withdrawal card
had he chosen to do so. He did not choose to do so and he was free to make his own
choice in' the matter, but when he exercised that choice he automatically-and not
because of a discriminatory application of rules-placed himself in the category of a
former member without a withdrawal card, and as such former member whose
membership had lapsed he was thereupon subject to the requirement of a reinstate-
ment 'fee instead of the initiation fee for new employees. In Food Machinery the
Board said that this was a fee differential based on a reasonable classification, and
when applied in a nondiscriminatory manner, met the requirements of the Act.
It is true,. as argued by the General Counsel, that had Bennett turned in his with-
drawal card within 5 days of employment by Adel, he would have been reinstated
to membership on, the payment of a $2-fee. This was an advantage accruing to him
because of his former membership in the Union, an advantage not shared by other
Adel employees not formerly affiliated with the Union and not holding honorary
withdrawal-cards. It is hardly to be supposed that a complaint of unfair labor prac-
INTERNATIONAL DIE SINKERS CONFERENCE 1227
tices would have issued against the Union if Bennett had availed himself of the
privilege attaching to his former membership and filed his withdrawal card within
the stipulated period. But because he did not take advantage of that privilege we
are asked to find a violation . And yet, were we to adopt the rationale of the General
Counsel , had Bennett availed himself of the privilege attaching to his withdrawal
card by filing it together with a $2 fee within the 5-day period, Adel employees not
holding withdrawal cards might complain , with as much merit as is encountered here,
that they were discriminated against because they were required to pay a $10 initiation
fee instead of the $2 fee required of Bennett.
- It appears to me that if a union may as a standard nondiscriminatory practice
advantage its former members in obtaining reinstatement over new members, it may
also disadvantage these same former members if they do not avail themselves of
their privilege within a stipulated period of time. And while it cannot be denied
that in a sense Bennett was penalized for refraining from revitalizing his union
affiliation during a period when he had a right to refrain from union affiliation, such
a penalty-if it be regarded as such-stemmed solely from fee differentials based on
classifications of new and former members , and such differentials the Board in Food
Machinery found lawful . The penalty did not therefore arise from a lack of uni-
formity in dues requirements, and the Union 's demand for Bennett's discharge was
not based on his failure or refusal to reinstate his membership in the Union during
a period when he was free to refrain from union affiliation . Neither was Bennett
restrained and coerced in his right to refrain from union affiliation during the first
31 days of his employment by Adel because he chose not to take advantage of a
privilege accruing to him by virtue of his former affiliation with the Union and the
fact that he held an honorary withdrawal card.
Unable as I am to find a material distinction between this case and Food Machinery,
I consider myself bound by the Board's decision in that case and , accordingly, must
recommend dismissal of'the complaint.'
Upon the basis of the foregoing findings of fact and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The operations of the Employer occur in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. The Respondent Union is a labor organization within the meaning of Section
2 (5) of the Act.
3. The Respondent Union has not engaged in unfair labor practices as alleged in
the complaint, within the meaning of Section 8 (b) (1) (A) and (2 ) of the Act.
[Recommendations omitted from publication.]
1 The Board's decision in Newspaper Guild, cited by the General Counsel, does not, in
my opinion, in any way modify or illuminate its decision in Food Machinery.
International Die Sinkers Conference , San Jacinto Die Sinkers
Lodge #410; International Die Sinkers Conference ; and Lodge
12, District 37, International Association of Machinists, AFL-
CIO and General Metals Corporation . Case No. 39-CC-37.
May 29, 1958
DECISION AND ORDER
On January 9, 1958, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled case, finding that the Re-
spondents had not engaged in and were not engaging in the alleged
unfair labor practices within the meaning of Section 8 (b)'(4) (A)
of the Act and recommending that the complaint be dismissed, as set
forth in the copy of the Intermediate Report attached hereto. There-
120 NLRB No. 160.