International Woodworkers of America

National Labor Relations Board - Board Decisions

Feb 24, 1958

119 N.L.R.B. 1681 (N.L.R.B. 1958)

INTERNATIONAL WOODWORKERS OF AMERICA 1681
[The Board directed that the Regional Director for the Twelfth
Region shall, within ten (10) days from the date of this decision open
and count the ballots of employees E. Harris, Troy Barfield, E. J.
Bolton, R. G. Cotney, D. E. Harris, Clyde Jenkins, S. W. Lee, E. E.
McCall, Geo. Sanford, B. T. Williams, F. G. Bragg, Fred Copeland,
E. A. Crawford, J. E. Miller, H. C. Price, C. E. Wilson, W. E.
Keenan, Henry Leggett, J. C. Ward, Geo. Ivy, F. W. Palmer, and
Charles Refoe, and serve upon the parties a revised tally of ballots.
If the remaining unresolved challenges can not affect the results of
the election, the Regional Director shall issue a certification of repre-
sentatives if the Petitioner has received a majority of the votes cast,
or the Regional Director shall issue a certification of results of election
if the Petitioner has not received a majority of such votes. If, the
remaining unresolved challenges can affect the results of the election,
the Regional Director is hereby directed to proceed to hearing in
accordance with the Board's Order of December 24, 1957.]
[The Board ordered that disposition of the above-entitled matter
be referred to the Regional Director and that the Board's Order of
December 24, 1957, be amended to provide that the hearing ordered
be held only in the event that after issuance of the revised tally of
ballots the unresolved challenges can affect the results of the election.]
MEMBERS RODGERS and FANNING took no part in the consideration
of the above Supplemental Decision, Direction, and Order. .
International Woodworkers of America , AFL-CIO, Local Union
13-433 [Ralph L. Smith Lumber Company] and Charles R.
Hatfield . Case No. 3O-CB-408. February 04, 1958
SUPPLEMENTAL DECISION
On February 20, 1957, the Board entered its Decision and Order in
this proceeding i in which it found that Respondent Union had vio-
lated Section 8 (b) (1) (A) and (2) of the Act by causing the dis-
charge of woods employee Hatfield under its valid union-security
agreement, at a time when Hatfield had made a full and unqualified
tender of initiation fees and dues. In its opinion the Board referred
as precedent to its decisions in Aluminum Workers International
Union (The Metal Ware Corporation),' and in Technicolor Motion
Picture Corporation,3 wherein it held that a full and unqualified tender
of dues and initiation fees at any time before actual discharge was a
1117 NLRB 405.
2111 NLRB 411; 112 NLRB 619.
3115 NLRB 1607.
119 NLRB No. 211.
476321-58- vol. 119-107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proper tender and a subsequent discharge unlawful. It also referred
to the opinion of the United States Court of Appeals for the Seventh
Circuit in the Aluminum case 4
Since issuance of the Board's Decision and Order in this proceed-
ing, the United States Court of Appeals for the Ninth Circuit, has, in
the Technicolor case,' denied enforcement and ordered a remand.
The court interprets the union shop proviso to Section 8 (a) (3) of
the Act as authorizing the execution of collective-bargaining agree-
ments which make time of the essence with regard to the tender of
initiation fees within the 30-day grace period, allowed by the proviso,
holding that a belated tender under such an agreement, although made
before actual discharge, will not avert a valid discharge-contrary to
the Board's view. The court declined to pass upon the contention
that Respondents, in the particular circumstances of that case, were
precluded from insisting upon their respective rights under the con-
tract, stating that it would be sound policy for the Board rather than
the court to initiate any theory of waiver or preclusion in this area
of the law. Thus the court, although disagreeing with the Board's
interpretation of the basic legal principle involved, recognized that
particular cases may require relaxation of the rule.
We have carefully reexamined and reconsidered the entire record
in this case in the light of the Technicolor court decision, and with
all due respect to that court, we adhere to our original decision and
our interpretation of the Act. Moreover, even assuming that Hat-
field's tender was belated, we nevertheless find that the Respondent
accepted Hatfield.'s tender and thereby waived his asserted delinquency
as a ground for discharge.
As stated in our earlier decision, Respondent had established a
practice of accepting signed checkoff slips as a full and unqualified
tender of initiation fees and dues, and Hatfield made such a full and
unqualified tender to the job steward, Gordon, on May 13, 1955.
Gordon accepted it. Respondent contends, however, that its business
agent rejected Hatfield's tender, and hence that it did not waive its
contract right to insist.upon timely payment. As we have said, we
do not agree. Regardless of the fact that Respondent's business
agent refused to accept Hatfield's membership application from the
job steward, Gordon, and that he later, upon receiving the Employer's
check covering Hatfield's initiation fee and dues pursuant to Hatfield's
checkoff authorization of the 13th, returned the check to the Employer,
Respondent was bound by the actions of Gordon whom it had clearly
authorized to sign up new members. Notices posted by Respondent to
the lumber company employees concerning obligations under the
union-security agreement stated in part :
4 N. L. R. B. v. Aluminum Workers International Union, Local No. 135, AFL, 230 F. 2d
515 (C. A. 7).
5N. L. R. B . v. Technicolor Motion Picture Corporation, et al., 248 F. 2d 348 (C. A. 9).
PENN DAIRIES, INC. 1683
It is essential that new applicants for membership contact the
Union Shop Steward in their department, or the Business Agent
of the Union, and be prepared to pay the Initiation Fee, which
is $20.00 and $3.50 for a month's dues. A convenient Check-Off
Card is provided for both Initiation Fee and monthly dues for
your convenience. (Italics supplied.)
Gordon defined his duty as a job steward as follows: "I am supposed
to sign up the new men as they come .to work, sign them up into the
union." 6 This testimony was corroborated by Crimmins, the busi-
ness agent. Furthermore, Respondent's constitution and bylaws
contain nothing to negate this authority on the part of the job
steward. Thus the Trial Examiner's finding (Intermediate Report
footnote 11, 117 NLRB 413) that Gordon as job steward 7 for the
Union was its agent, and that his actions and conduct as steward are
attributable to it, is amply supported by the record. In the circum-
stances, we deem Gordon's acceptance of Hatfield's tender to have
constituted acceptance by Respondent. Nor do we see that Gordon's
testimony on redirect examination, that he "probably wouldn't have"
signed Hatfield up had he known of the discharge letter, alters the
effect of his having done so. Gordon was authorized to act for the
Respondent in that capacity and he did so in the instance with which
we are concerned. On this record we find that Respondent, by the
action of its agent, Gordon, in accepting the checkoff slip for initiation
fees and dues tendered by Hatfield, waived its right to insist that
Hatfield be discharged for failure to make a prompt tender.
For the reasons hereinabove stated, we affirm our Decision and
Order of February 20, 1957, as supplemented herein.
MEMBER FANNING took no part in the consideration of the above
Supplemental Decision.
Gordon also testified that he had planned to sign up Hatfield and.the two others who
had not ' signed up in the fall , on May 3, but was prevented from doing so by his injury
on May 2 and his stay in the hospital until May 1'2.
" The Trial Examiner referred to Gordon as the "woods shop steward " ; actually Gordon
testified that he was "a job steward" for the Union. In the context it appears that
"woods shop" and "job" are synonymous.
Penn Dairies , Inc. and Milk Drivers and Dairy Workers Union,.
National Brotherhood of Packinghouse Workers, Petitioner..
Case No. 1-RC-3193. February 01, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National.
Labor Relations Act, a hearing was held before Bernard Samoff,,
119 NLRB No. 217.