Local 169, Ect.

National Labor Relations Board - Board Decisions

Feb 2, 1955

111 N.L.R.B. 460 (N.L.R.B. 1955)

-460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees of the Employer at its
Red Lion plant, Bustleton, Pennsylvania, excluding professional and
technical employees, timekeepers, rate setters, time-study men, safety
inspectors, nurses, cafeteria employees, guards, office and clerical em-
ployees, administrative employees, executives, and supervisors as de-
^fined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Direction of Election.
LOCAL 169, INDUSTRIAL DIVISION INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER-
ICA, AFL and ANN BODROG. Case No. 4-CB-199. February 2, 1955
Decision and Order
On September 9, 1954, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action , as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report and a supporting brief.
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 brief, and the entire record in the
case and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner with the following additions and
modifications.
1. We agree with the Trial Examiner's finding that the Respond-
ent, through its agent, John Morris, independently violated Section 8
(b) (1) (A) of the Act by threatening employees with physical vio-
lence and loss of employment if they engaged in activities on behalf of
United Steelworkers of America, CIO. We find no merit in the Re-
i In footnote 41 of the Intermediate Report, the Trial Examiner erroneously stated that
the record is silent as to the disposition made of the case of Robert O'Conner , whose dis-
charge the Respondent had requested for nonpayment of dues. The record shows, and we
find, that after the Respondent asked for the discharge of O'Conner , the Company pro-
moted him to a foreman 's position . The Respondent thereafter withdrew its request for
discharge because he was no longer in the bargaining unit and subject to the union-secu-
rity clause . The Intermediate Report is corrected accordingly.
In adopting the Trial Examiner 's findings , we do not also adopt his discussion and con.
clusions as to the proper usage of the Respondent 's withdrawal card system. We do not
consider this discussion necessary to a decision on the issues in this case.
111 NLRB No. 72.
LOCAL 169, ETC. 461
-spondent's contention that Section 10 (b) of the Act precludes the
Board from making an unfair labor practice finding based on this
alleged conduct.
The charge herein was filed on January 12, 1954. It alleged that
the Respondent had discriminatorily caused the discharge of Ann
Bodrog and thereby "and by other acts and conduct" had restrained
and coerced employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act. The original complaint did not allege independent
violations of Section 8 (b) (1) (A). However, the General Counsel
filed an amended complaint on April 21, 1954, which did make such
allegations. The Respondent filed its amended answer on April 26,
1954, and the issues involving the alleged independent violations of
Section 8 (b) (1) (A) were fully litigated.
One of the threats by Morris was made in December 1953, less than
^6 months before the amended complaint was issued and served. The
other threats were mmde within 6 months before the date the charge
was filed, but more than 6 months before the issuance of the amended
.complaint. We find that the threats of violence and of discharge for
activities in behalf of the Steelworkers were closely related to the
charge that the Respondent had caused the Company to discharge
Bodrog because of her activities in behalf of another union, and as
such threats occurred within 6 months before the filing and service
,of the charge they were properly made allegations of the complaint.2
2. The Trial Examiner found that the Respondent had refused
Bodrog the privilege of paying her back dues in installments, al-
though its practice was to accord such privilege to delinquent mem-
bers, and that it asked for Bodrog's discharge not because of her dues
delinquency, but because of her rival union activities and sympathy,
all in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
To a great extent, these findings are based on credibility resolutions
of the Trial Examiner which are attacked by the Respondent. The
Trial Examiner based his credibility findings in part on his observa-
tion of the witnesses and their demeanor while testifying. As de-
ineanor of witnesses is a factor of consequence in resolving issues of
credibility, and as the Trial Examiner, but not the Board, has had
the advantage of observing the witnesses while they testified, it is our
policy to attach great weight to the Trial Examiner's credibility find-
ings at least insofar as they are based on demeanor. Hence, we do not
overrule a Trial Examiner's resolutions of credibility except where the
clear preponderance of all the relevant evidence convinces us that the
Trial Examiner's resolution was incorrect. No such conclusion is
2N. L. R. B. v. Pecheur Lozenge Co ., Inc., 209 F. 2d 393 ( C. A. 2), cert . denied 347
U S 953 , Dinion Coil Co., Inc. v. N. L. R. B , 201 F. 2d 484 (C. A. 2).
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warranted in this case. We therefore adopt the Trial Examiner's
credibility findings,' and his findings of fact and of law based thereon.'
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Local 169, Industrial Divi-
sion International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Restraining or coercing employees of Rheem Manufacturing
Company, Burlington, New Jersey, by threatening them with dis-
charge or physical violence if they engage in activities in behalf of
United Steelworkers of America, CIO, or any other labor organi-
zation.
(b) Causing or attempting to cause Rheem Manufacturing Com-
pany, Burlington, New Jersey, to discriminate against Ann Bodrog,
or any other employee in violation of Section 8 (a) (3) of the Act.
(c) In any other manner restraining or coercing employees of
Rheem Manufacturing Company, Burlington, New Jersey, in the ex-
ercise of the rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Rheem Manufacturing Company and the Charging
Party, Ann Bodrog, in writing that it has no objection to the Com-
pany's employment of Ann Bodrog.
(b) Make whole Ann Bodrog for any loss of pay she may have
suffered as a result of discrimination against her, in the manner set
forth in section IV of the Intermediate Report, entitled "The
Remedy."
(c) Post in conspicuous places at its business office and in all places
where notices or communications to its members are customarily
posted, copies of the notice attached hereto and marked "Appendix
3 Universal Camera Corp v N. L R. B., 340 U. S 474, 495-496; Standard Dry Wall
Products, Inc, 91 NLRB 544, 555, enfd. 188 F. 2d 362 (C. A. 3).
d Chairman Farmer finds sufficient support for the 8 (b) (2) finding in the fact that the
Respondent failed to make membership available to Bodrog on the same terms and con-
ditions-generally applicable to other members. However, in view of the majority decision
in Special Machine and Engineeisag Company, 109 NLRB 838, by which he considers him-
self bound, he also concurs in the finding of the Trial Examiner that the Respondent vio-
lated Section 8 (b) (2) by demanding the discharge of Bodrog under the pretext that it
was for dues delinquency whereas the real reason was her rival union activities and
sympathy.
LOCAL 169, ETC. 463
A." 5 Copies of said notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately upon
the receipt thereof, and maintained by it for a period of sixty (60)
consecutive days thereafter. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto as "Appendix A" for posting,
Rheem Manufacturing Company willing, on the bulletin boards of
such Company at its plant at Burlington, New Jersey, where notices to
employees are customarily posted. Such notices are to be posted and
maintained for a period of sixty (60) consecutive days after receipt
by the Company. Copies of the notice, to be furnished by the Re-
gional Director for the Fourth Region, shall, after being duly signed
by an official representative of the Respondent be forthwith returned
to the Regional Director for said posting.
(e) Notify the Regional Director for the Fourth Region, in writing
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
MEMBER MURDOCK, concurring specially :
I agree with the conclusions of my colleagues that the Respondent
violated Section 8 (b) (1) (A) by threatening employees with vio-
lence and loss of employment, and also Section 8 (b) (2) and 8 (b)
(1) (A) by causing the discharge of Ann Bodrog because of her union
activities and sympathies.
In applying the statute of limitation contained in the proviso of
Section 10 (b) of the Act, I would rely upon the doctrine enunciated
by the Board in Cat hey Lumber Company, 86 NLRB 157, and restated
in Osbrink, 104 NLRB 42, as follows :
The only purpose of the charge is to set in motion the Board's
investigatory machinery in order to determine whether a com-
plaint should issue. There is no requirement that the charge set
forth each unfair labor practice to be litigated; this is a function
of the complaint. The Board is therefore free to add to its com-
plaint allegations, unfair labor practice discovered in the course
of its investigation, although not alleged in the charge, provided
only that these did not occur more than 6 months before the filing
and the service of the original charge.
Further, in finding that the Respondent violated Section 8 (b) (2)
and 8 (b) (1) (A) of the Act by causing the discharge of Ann Bodrog,
6In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I rely only upon the Trial Examiner's finding that the Respondent
was in fact "motivated in requesting Bodrog's discharge not because
of unpaid dues but because of her rival union activities and sympa-
thies. . . ."-in other words, that the alleged reason-delinquency in
dues-was merely a pretext. I do not find it necessary to, nor do I,
rely upon the Trial Examiner's further conclusion that in according
leniency to other members but not to Bodrog "the Union forfeited its
statutory right to request the Company to discharge Bodrog for non-
payment of dues." "The Board has held that a union should not be
penalized for `laudable leniency' with respect to the collection of dues
and that the failure to treat all delinquents alike does not per se pre-
clude a union from lawfully invoking a union-security clause against
particular individuals." (See Special Machine and Engineering Com-
pany, supra, footnote 4.) In addition, it seems questionable to me
that the Board would be logically consistent in stating, as did the Trial
Examiner, on the one hand, that the Respondent by "disparate treat-
ment" forfeited its statutory right to demand Bodrog's discharge, but,
on the other hand, that the "leniency shown by the Union for other
members is not the basis for any so-called penalty."
Accordingly, I concur in the conclusions of the majority with the
above qualifications.
Appendix A
NOTICE TO ALL MEMBERS OF LOCAL 169, INDUSTRIAL DIVISION INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF
RHEEM MANUFACTURING COMPANY, BURLINGTON, NEW JERSEY
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, we hereby notify our members and the employees of
Rheem Manufacturing Company, Burlington, New Jersey, that :
WE WILL NOT restrain or coerce employees of Rheem Manufac-
turing Company, Burlington, New Jersey, by threatening them
with discharge or physical violence if they engage in activities in
behalf of United Steelworkers of America, CIO, or any other
labor organization.
WE WILL NOT cause or attempt to cause Rheem Manufacturing
Company, Burlington, New Jersey, to discriminate against Ann
Bodrog, or any other employee in violation of Section 8 (a)
(3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
of Rheem Manufacturing Company, Burlington, New Jersey, in
the exercise of the rights guaranteed in Section 7 of the Act, ex-
cept to the extent that such rights may be affected by an agree-
LOCAL 169, ETC. 465,
ment requiring membership in a labor organization as a condition
of employment as authorized by Section 8 (a) (3) of the Act.
WE WILL notify Rheem Manufacturing Company and Ann
Bodrog in writing that we have no objection to the Company's-
employment of Ann Bodrog.
WE WILL make whole Ann Bodrog for any loss of pay she may
have suffered as a result of the discrimination against her.
LOCAL 169, INDUSTRIAL DIVISION INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL,
Labor Organization.
Dated---------------- By--------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,-
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed by Ann H. Bodrog, on January 12, 1954, against Local 169,_
Industrial Division International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, herein called both the Union and the Respondent,
the General Counsel of the Board issued his complaint and notice of hearing on
March 12, 1954. The complaint, as amended on April 21, 1954, alleged the com-
mission of unfair labor practices by the Union in violation of Section 8 (b) (1)
(A) and (b) (2), and Section 2 (6) and (7) of the National Labor Relations.
Act, 61 Stat. 136, as amended, herein called the Act, in that the Union: (1)
Caused the Rheem Manufacturing Company, herein called the Company, to dis-
charge Ann Bodrog, the Charging Party, because she had engaged in activities on-
behalf of a rival union; (2) discriminatorily denied membership in good standing in
said Union to Bodrog on the same terms and conditions generally applicable to other
union members; and (3) threatened employees if they should engage in activities on
behalf of any other labor organization.
The Respondent Union filed an answer which alleged that an agreement entered
into between the Company and the Union provided that as a condition of employ-
ment, membership in good standing in the Union was required for continuing in the.
employ of the Company. Bodrog, it was alleged, lost her membership in good stand-
ing in the Union because she refused to pay her union dues whereupon the Union so
notified the Company who, in turn, discharged Bodrog. The answer also denied that
the Respondent had threatened employees if they should engage in activities on behalf
of any other union.
Copies of the charge and complaint, as amended, together with the notice of hear--
ing, were duly served on the parties. Pursuant to notice, a hearing was held in Bur-
lington, New Jersey, on various dates between April 19 and May 4, 1954, inclusive,
before Henry S. Salim, the duly designated Trial Examiner. All parties were repre-
sented by counsel and were afforded full opportunity to participate in the hearing, to
introduce relevant evidence, and to argue orally. Briefs were filed by the General.
Counsel and the Union and have been carefully considered. During the course of
the hearing, various motions were made by the Respondent which are disposed of in
the following findings and recommendations.
On June 30, 1954, subsequent to the close of the hearing, the Trial Examiner sent
a letter to counsel for the Respondent Union with copies to all parties requesting
that the Local Respondent Union's constitution and bylaws be sent to the Trial Ex-
aminer. This letter stated that if the parties had no objection to its admission, that
the exhibits requested would be designated and received in evidence as "Trial Ex-
aminer's Exhibit No. 1." By letter dated July 1, 1954, and received on July 2, coun-
sel for the Respondent enclosed "two copies of the Constitution and By-laws of the
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union" which his letter stated, "under the evidence offered by the Re-
spondent were adopted by the membership of the Local Union as its own Constitution
and Bylaws." 1 Said letter is hereby received in evidence as Trial Examiner's Ex-
hibit No. 1 and made a part of this record.
Upon the entire record in this case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Rheem Manufacturing Company, a California corporation, operates 14 plants, 1 of
which is located at Burlington, New Jersey, where it employed approximately 1,300
employees during the year 1953. The Burlington plant is engaged in national de-
fense work manufacturing shell casings for the Ordnance Corps of the U. S. Govern-
ment. In its operations, the Company manufactures and sells products valued in
excess of $100,000 which are sold and transported in interstate commerce from its
plant in New Jersey, into and through States of the United States to places outside
the State of New Jersey. By reason of the foregoing facts, it is found that the Com-
pany's operations substantially affect the national defense and that it is engaged in
commerce within the meaning of the Act .2
II. THE LABOR ORGANIZATION INVOLVED
Local 169, Industrial Division International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Beginning in December 1952, the United Steelworkers of America, CIO, and the
Respondent Union conducted membership campaigns among the employees at the
Company's Burlington plant. A vigorous campaign was waged by both labor organ-
izations to enlist members in their respective unions which culminated in a Board-
conducted election held on February 20, 1953. The Respondent Union won the
election and was certified by the Board on March 3, 1953, as the collective-bargain-
ing agent for the production and maintenance employees at the Company's Burling-
ton plant. Pursuant to this certification, the Company and Union entered into an
agreement effective April 15, 1953, covering wages and working conditions. Article
II of this agreement provides that all employees covered by the agreement shall be-
come members of the Union and remain in good standing during the life of the agree-
ment as a condition of continuing in the employ of the Company. The agreement
also provided that all new employees must become members of the Union within
30 days from the date they are hired. The Union notified the Company that pursuant
to article II of the agreement, Bodrog, the Charging Party herein, was not in good
standing in the Union because she was delinquent in her dues payments and requested
her discharge. Thereupon the Company discharged Bodrog.
The General Counsel contends that the operative reason for the Union's conduct
in causing the Company to discharge Bodrog was her activity on behalf of a rival
union and not her failure to pay union dues. He also argues that Bodrog offered to
pay her delinquent dues in installments , which privilege was accorded by the Union
to those of its members who were delinquent in their dues payments, but that the
Union refused Bodrog's request, demanding that she pay all her delinquent dues im-
mediately in one sum. The fact that the Union singled out Bodrog from other de-
linquent members to discharge and the refusal of the Union to grant Bodrog the
same privilege accorded other union members, to pay her delinquent dues in install-
ments, which culminated in the Union requesting the Company to discharge her, the
General Counsel contends, was discriminatorily motivated because of her activity in
support of a rival union and thus a violation of the Act.
The Respondent denies the General Counsel's charge and contends the sole reason
the Union demanded that the Company discharge Bodrog was because of her refusal
to pay her delinquent dues which accrued during the time she was on sick leave.
'The constitution and bylaws of the Inteinational Union had already been received in
evidence at the hearing as General Counsel's Exhibit No. 7.
2 See Page Airways, Ine., 108 NLRB 1108.
LOCAL 169, ETC. 467
Because of Bodrog's alleged dues delinquency, she was not in good standing in the
Union, the Respondent contends, and therefore, under the union-security provision
of the contract between the Company and the Union, she was not entitled to continue
to be employed by the Company.
B. Restraint and coercion
The spirited preelection campaign between the CIO and the Respondent AFL
Union which culminated in the Respondent Union being certified as the collective-
bargaining agent for the production and maintenance employees of the Company's
Burlington plant left some unhealed wounds .3 This hostility was evidenced, as here-
inafter described, by the Respondent Union's actions and words which were directed
at certain employees of the Company, particularly Bodrog and Bublewitz, who were
ardent CIO supporters.
The General Counsel in his complaint alleges that the Respondent Union, through
its agent John Morris, herein referred to variously as the chief steward, shop chair-
man, and business agent,4 threatened certain employees if they engaged in activities
on behalf of any other labor organization. However, the General Counsel's repre-
sentative at this hearing went beyond the allegations in the complaint both as to time
and incidents, and offered evidence, without objection from the Respondent, as to
threats being made by union representatives other than Morris. These incidents in-
volving union representatives other than Morris are not considered in making find-
ings of fact nor are they made the basis for resolving any of the legal issues herein
involved, but are mentioned merely as background to clarify the actions and ex-
plain the statements alleged to have been made by Morris and which are discussed in
more detail, infra.
Sometime prior to the election on February 20, 1953, Bodrog began to solicit em-
ployees to vote for the CIO. Her campaigning on behalf of the CIO apparently came
to the attention of the Respondent Union because she was repeatedly approached by
Paul Martin and John Morris, adherents of the Respondent Union, who importuned
her to support the AFL in the forthcoming election. She refused to accede to their
suggestions.
Alice Bublewitz, a CIO supporter, and a CIO observer 5 at the election on February
20, was also asked by Morris, in February 1953, to support the AFL but she also
refused. Her uncontradicted testimony is that Morris in attempting to persuade her
to aid the AFL, stated: "If you use your head, Alice, . . . if you come over here
where you belong ... anybody that works for us will always be well protected. If
not, . watch out from then on. ..." To this threat, Bublewitz testified that she
repued. "What do you mean, in other words, I don't have a job here!" Morris said,
according to Bublewitz, "Yes." 6
On the day of the election but before the voting returns had been made public,
Paul Martin, an AFL adherent, said to Bodrog: "Ann, where are you going to get a
JOD now that the AFL is going to get in!" '
James H. McAllister, personnel director of the Rheem Manufacturing Company,
the Company herein, testified that following the certification of the Respondent
Union but prior to the time the Union and Company signed an agreement, he was
approached by a union representative, whose identity he does not recall, and engaged
in a conversation involving a union question. McAllister testified that:
It was a question of harmony and due to conflict between pro-Local 169 and
Anti-Local 169 . . . it was a request that [Bublewitz] be transferred from her
Indicative of this is an incident which was alleged to have occurred on February 20,
1954, when two AFL adherents, Murphy and Martin, one a union steward and the other
a former steward and AFL observer at the election, on meeting Edward Kisielnicki, a
company employee, in a tavern asked hun, "what are you CIO or AFL," and threatened
to assault him.
4 Morris was elected business agent of the Respondent Union on December 1, 1953
Prior to that time, he was shop chairman.
I An "observer" is a person pi esent for one of the unions which appear on the election
ballot, whose duty it is to see that only those who rightfully are entitled to vote should
participate, by challenging any voter believed not eligible
9 On cross-examination, she was asked if she had repotted this conversation with Morris
to anyone and she replied - "Yes, . . . all the girls in the plant I told them that he was
trying to scare me into going to their side but lie can't do it."
This testimony of Bodrog's is uncontradicted.
344056-55-vol. 111-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present location to another job, in order to eliminate some of the discord in
that area, organizationally-wise for the Union. . Following the certification
by the Board, there were several small groups of employees who, as I under-
stand it, had voted for another union at the election and there was a sales pro-
motional campaign for the Union to convert their thinking to the philosophy
of the designated bargaining agent. In so doing, they determined that there
were several strong supporters of this other union which they attempted to
convert to their line of thinking, and in so doing, in several of the spots, they
were unsuccessful in doing it; and apparently in this one case, one of the repre-
sentatives of the Union, a steward as well as I can recall, felt that he was not
accomplishing his task as well as he would like to, and asked for our support
in the form of a transfer [for Bublewitz] from that location, but there was no
request, as I recall it, from the Union, officially, in terms of the officers.
In June 1953, Bodrog testified that while she and Bublewitz were working at their
machines in the plant, Morris, accompanied by Robert Coleman, shop chairman
of the Union 8 and Edward Hartsough, president of the Union, approached both
girls and Morris said:
Mr. Hartsough, I'd like you to meet Ann Bodrog and Alice Bublewitz.. .
These were two great CIO supporters. And Bob Coleman started to laugh.
He said, "1 don't think we have anything to worry about. . . . I think we have
them pretty well on our side." 9
William Spring, who was Bodrog's and Bublewitz's supervisor, testified that in the
spring or early summer of 1953, he proposed to the Company that certain employees
including Bodrog and Bublewitz, should be transferred from the shipping to the pro-
duction department. Spring also spoke with Morris about this proposed transfer of
Bodrog and Bublewitz. Morris, according to Spring, and this was denied by Morris,
stated that he was opposed to their transfer, explaining that "they were going to
be kept where they were because they were CIO organizers and they did not want
them mixing up with other people in the plant." 10 They were not transferred.
James A. Serlengo, an employee of the Company, testified that prior to the elec-
tion he was opposed to the Respondent Union. In June 1953, he testified that his
brother, also a company employee, was laid off by the Company. Shortly there-
after, he spoke to Morris about his brother's layoff and Morris, according to Ser-
lengo, "made it plain that he wasn't in favor of me being against them, and I wasn't
favoring them too much. . . He said, `if you want to help your brother, you want
to stop talking against the Union: " 11
James A. Bailey, an employee, testified that sometime between April and Septem-
ber 1953, while he was a union steward, that he had a conversation with Morris
in the plant. In this conversation, according to Bailey, Morris looked over towards
Bodrog and Bublewitz and said, "Keep your eye on those two over there."
Sometime after he resigned as union steward in August or September 1953, Bailey
testified that he went to the union office and reported to Morris that he "had an
offer made to [him] by a CIO person that I know to stir up a little trouble in here,
start pushing for the CIO. 12 . So [Morris] said to me that anybody starts
pushing CIO-I don't remember the exact words that he said, but anybody starts
pushing CIO he'd bring a truckload of musclemen over here and muscle them."
Bailey also testified, which Morris denied, that in December 1953, a few days
before Christmas, Morris came into the salvage department of the plant and ad-
dressed the employees, stating: "I understand there's a two-faced s- o- b- in
here talking CIO . . . if anybody is pushing CIO or talking CIO in here as soon
as I get a little more proof on him, out the door he goes."
Sometime between August 12 and October 1953, Bublewitz testified, Moms
called her to the union office because of an alleged argument that she had with a
coworker. During this conversation, Bublewitz claimed that Morris said to her:
"What's this I understand about you bringing in CIO." When she denied this,
8 Coleman was coshop chairman until September 1, 1953, at which time he became shop
chairman
9 This testimony which is uncontradicted is corroborated by Bublewitz
10 Spring also testified : "I remember distinctly that Mr. Morris told me there was a
deal that they would not be transferred." On cross-examination he testified that this
"deal" had been made with the Company's personnel office
11 This testimony is uncontradicted.
n When Bailey was asked to explain the phrase "pushing for the CIO" he testified that
it meant, "to organize for the CIO."
LOCAL 169, ETC. 469
Morris, according to Bublewitz, said: "I am going to tell you or anybody else in
that plant . . . if I ever hear you ever mention the word CIO, you or anybody
else in that plant, out you go. I worked too hard to get what I've got, and you or
even [deleted] isn't coming here and take away what I got . . . I'm sick and tired
of the whole [deleted] nonsense." 13
Edward Kisielnicki, an employee, testified, that during September 1953, while
eating in the plant cafeteria , he was called to a table by Morris who was sitting
with George Anderson and Dennis Carroll, a union-shop committeeman. Morris,
according to Kisielnicki, said.
What's this I hear about you saying CIO? . . . And Mr. Morris said to me
that nobody in this world is going to break up the Union in the plant because
he's worked too hard to get in there and he intends to keep it there. Neither
you nor anybody else . Mr. Morris [said] that if he caught anybody or-
ganizing CIO or talking CIO, that he'd get rid of them. Now, what he meant
by getting rid of them, I don't know.
Kisielnicki also testified that on another occasion, in the latter part of Febru-
ary 1954, Coleman and Anderson, umon officials, told him: "that they would, if
there was any kind of trouble, that they could bring in people from Phila-
delphia. . . That is all they had to do was dial the office and they could bring
in people if there's any trouble."
Kisielnicki testified that as recently as April 20, 1954, which was the day after
the hearing in this case began, and a week before he testified, that Coleman, shop
chairman of the Union , approached him at the plant and asked him: "Were
you down at Personnel " to which Kisielnicki replied , "Yes, I was." Then Coleman
inquired, "who did you talk to" and Kisielnicki replied, "the General Counsellor
[sic]." Coleman then asked him: "Did you get a subpoena" and Kisielnicki testi-
fied that he answered, "I said I didn't. At the time I didn't. And Mr. Coleman
says to me, he says `Well, what did he say to you,' " and Kisielnicki replied:
I said, "Well, he asked me about my back dues. I said I paid it in two in-
stallments, and that was it, it was forgotten. Then he [Coleman] said to me,
he said "why stick your neck out for somebody else"? 14
Coleman denied that this conversation ever took place.
It is against this testimony that the Respondent Union 's denials are considered.
Morris denied that: (1) He ever had a conversation with Spring in which he stated
Bodrog and Bublewitz were not to be transferred from one department to another
because they were CIO organizers; (2) he had "made a deal" with personnel that
these two employees were not to be transferred; (3) he threatened to "get rid of"
Bublewitz if she worked on behalf of the CIO; (4) he had threatened employees
with loss of their jobs if they worked on behalf of CIO; (5) when he addressed
employees at Christmas time in the salvage department of the plant, he threatened
them with discharge if they worked on CIO's behalf; (6) he told Bailey to keep
his eye on Bodrog and Bublewitz or that he made any threats to Bailey whatsoever;
and (7) he denied Kisielnicki's testimony that he had threatened him with loss of
his job if he engaged in activities on behalf of CIO.
The Respondent Union also produced the following witnesses: Frans Termeulen,
Harvey M. Van Sciver, May C. Bedingfield, Robert B. McKibbin, Antonio J.
Bertino, John McLaughlin, Herbert Stone, James H. Candy, and George Baxter.
These witnesses all testified that they were sympathetic to the CIO union prior to
the plant election and that since the election, they have been neither discriminated
against nor threatened by the Respondent AFL Union.
The Trial Examiner has carefully considered Morris' testimony and observed his
demeanor on the witness stand 15 and concludes that his testimony denying any
of the above-detailed threats were made is not worthy of belief. The Respondent,
however, contends that the Trial Examiner should credit its witnesses and the de-
nials of Morris rather than the testimony of the General Counsel's witnesses con-
cerning these alleged threats. However, these denials raise an issue of credibility
which is resolved in favor of the versions told by the General Counsel's witnesses.
Based upon the foregoing recital of the facts in this case and upon the substantial
evidence on the record appraised as a whole, and on the straightforward testi-
13 Morris denied making this alleged threat.
i4 See Personal Products Corporation, 108 NLRB 743.
le N. L R B. v James Thompson it Cb , Inc, 208 F. 2d 743, 746 (C. A. 2).
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony of the General Counsel 's witnesses , Morris' generally vague denials are not
credited . The witnesses for the General Counsel appeared to be sincere and
truthful witnesses , and the events related by them follow a logical sequence, which
are consistent with the attendant circumstances in this case.16
Having resolved the credibility issue as to whose version of the facts herein re-
lated shall be accepted as true, the next problem to be decided is a legal question:
Whether the conduct related above restrained or coerced the above -named employees
in the exercise of their rights under the Act, in violation of Section 8 (b) (1) (A)
of the Act? 17
Section 8 (b) (1) (A) was designed primarily by Congress to proscribe coercive
conduct on the part of the Union. It was intended to eliminate not only the use by
unions of physical violence and coercion , but also union threats against specific indi-
viduals. By this section of the Act , Congress sought to insure that employee or-
ganizational activities were conducted peaceably by persuasion and not by threats of
force or threats of economic action against specific individuals or groups of indi-
viduals in an effort to compel them to cooperate with a union.18
The legislative history of the Taft-Hartley Act discloses that one of the prime
purposes of Section 8 (b) (1) (A ) was to insure to employees the right to work with-
out any restraint or coercion from unions or their agents. The sponsors of the Act
repeatedly emphasized that Section 8 (b) (1) (A) was designed to extend to em-
ployees the same protection against restraining and coercive acts of labor organiza-
tions that Section 8 (a) (1) of the Act provides against similar activities of em-
ployers. Thus, in the supplemental views of Senators Taft, Ball, Donnell , Jenner,
and Smith appended to the report of the Senate Committee on Labor and Public Wel-
fare, announcing their intention to propose the amendment which subsequently be-
came Section 8 (b) (1) (A) it is stated: 19
It is now an unfair labor practice for employers to . . . interfere with, re-
strain, or coerce [ employees in the exercise of the rights guaranteed in Section
7 of the Act]. Since this bill established the principle of unfair labor practices
on the part of the unions , we can see no reason whatever why they should not
be subject to the same rules as the employers . . . We believe that the freedom
of the individual workman should be protected from duress by the Union as
well as from duress by the employer.
Senator Ball thereafter introduced the amendment and explained its purpose as
follows (93 Cong. Rec. 4016):
The purpose of the amendment is very simple . It is to insert an unfair-labor
practice for unions identical with the first unfair labor practice prohibited to
employers in the present Act... .
It is apparent from the foregoing that the Congress equated Section 8 (b) (1) (A)
to the meaning given the terms "restraint" and "coercion" in Section 8 (a) (1).20
It is found upon the foregoing findings of fact , and upon the entire record in this
case, that the Respondent Union , through its agent, John P. Morris: ( 1) Threat-
ened to cause the discharge of employees from employment with the Company, if
such employees spoke favorably of, or engaged in activities on behalf of, the United
Steelworkers of America, CIO; and (2) threatened to cause violence and bodily harm
to employees if they spoke favorably of, or engaged in activities on behalf of, the
United Steelworkers of America, CIO.
Accordingly , it is found that the Respondent Union violated Section 8 (b) (1) (A)
of the Act.
1s Universal Camera Corp v. N L R B., 340 U. S. 474, 495, 496; Dinion Coil Co., Inc.
v. N. L. R. B., 201 F. 2d 484 (C. A. 2) ; N. L. R. B. v. The Ann Arbor Press, 188 F. 2d 917,
925 (C A. 6), cert . denied 342 U. S 859.
17 8 (b ) It shall be an unfair labor practice for a labor organization or its agents-
(1) "to restrain or coerce (A) employees in the exercise of the rights guaranteed in
section 7 : Provided, That this paragraph shall not impair the right of a labor organiza-
tion to prescribe its own rules with respect to the acquisition or retention of membership
therein" ; . .
is Perry Norvell Company, 80 NLRB 225; Clara-Val Packing Company, 87 NLRB 703;
Miami Copper Company, 92 NLRB 322
19 S. Rep No . 105, 80th Cong ., 1st Sess , p. 50.
20 See Capital Service, Inc. v. N. L. R B , 204 F. 2d 848, 852 (C. A. 9).
LOCAL 169, ETC. 471
C. The Union's alleged discriminatory termination of Bodrog's membership in good
standing in the Union which resulted in her discharge by the Company
Since April 15, 1953, Respondent Union and the Company have been parties to a
collective-bargaining agreement covering the Company's production and maintenance
employees. Article II of this agreement provides as follows:
All employees covered by this Agreement shall become members of the
Union and remain members of the Union in good standing during the life of this
Agreement as a condition of continuing in the employ of the Company. All new
employees covered by this Agreement shall become members of the Union
within thirty (30) working days from the date of hiring of this Agreement as a
condition of continuing in the employ of the Company.
Article III of the agreement also provides, inter alia, that the Company shall deduct
$4 for union dues on the first day of each month from the wages of each union
member provided the individual employee agrees in writing to the deduction. These
deductions are remitted by the Company to the Union on or before the 20th day of
the month following that in which the deductions are made.21
Ann Bodrog, the Charging Party herein, was employed by the Company on Decem-
ber 1, 1952, in its shipping department. Approximately 3 weeks after being hired,
Bodrog became an ardent supporter of the United Steelworkers, CIO, which was
actively engaged in a spirited preelection campaign with the Respondent Union's
International affiliate to determine which, if any, of the two competing unions would
be the certified collective-bargaining agent for the employees of the Rheems Manu-
facturing Company's Burlington plant. Prior to the February 20 election, she was
repeatedly importuned by Morris, one of the AFL organizers, to support that Union
but she refused.22 On the day of the election, but before the voting returns were
made public, Paul Martin,23 an AFL adherent, said to Bodrog, and this is uncontra-
dicted, "Ann, where are you going to get a job now that the AFL is going to get in?" 24
On August 12, 1953, Bodrog went on sick leave on the advice of her physician
who gave her a certificate stating that he advised her to apply for a 3-month leave
of absence.25 Shortly before Bodrog's first leave of absence was due to expire, Alice
Bublewitz, who worked in the same department as Bodrog at the plant, asked Elsie
Sarlo, their union steward at the behest of Bodrog, if it would be necessary for
Bodrog to pay union dues for the time she was on sick leave. Sarlo replied that
she did not know but would ask Morris, the Union's shop chairman. Sarlo returned
shortly and advised that it would be necessary for Bodrog to obtain a withdrawal
card at the union office. Bublewitz testified that when she inquired of Sarlo what a
withdrawal card was that Sarlo, the union steward, replied she did not know but
would find out from Morris. Later, according to Bublewitz, Sarlo told her that "any-
body that is laid off, sick leave or anything, would have to get a withdrawal card
to be in good union standing."
In the constitution of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (G. C. Ex. No. 7), which was adopted by
the membership of the Local Union as its own constitution and bylaws, there appears
the following language:
Jurisdiction to Issue Honorable Withdrawal Card
Sec. 4. Local unions shall have jurisdiction over the granting of all honorable
withdrawal cards. Refusal to grant honorable withdrawal card shall be subject
to appeal in accordance with the appeal procedure provided for by this Con-
stitution, excluding, however, any appeal to the convention.
There shall be a charge of twenty-five cents (25 cents) to any member receiv-
ing a withdrawal card, and it shall be the duty of the secretary-treasurer of the
n All union members, except one, had signed cards authorizing the Company to deduct
from their wages $4 each month for union dues. Dues, of course, would only be checked
off for a particular month if the employee worked during that month and so had pay com-
ing to him.
22 Morris' testimony that the first time he came to know Bodrog was sometime between
the latter part of May and the beginning of June 1953, is not credited.
23 Martin was also an observer for the AFL at the representation election that was held
on February 20, 1953, and subsequently became a shop steward.
24 As to other indicia tending to show the Respondent Union's officials' hostility toward
Bodrog, see pages 468 and 477 and footnote 28 of this report.
as On the advice of the same physician, she later had the Company extend her sick leave
to December 31, 1953.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
local union receiving such charge to duly record the payment thereof in his
cash book and carry it to his ledger.
The following provisions shall govern withdrawal cards and shall be em-
bodied in the withdrawal card in the form prescribed by Section 5 hereof •
Honorable Withdrawal Card
Sec. 5. (a). This is to certify that the bearer hereof, Brother ______________
________________, whose name appears on the margin of this card in his own
handwriting, has paid all dues and demands and withdrawn in good standing
from membership in Local No. ________________
(b). This card entitles him to readmission to the local union from which
this card was issued at any time, subject, however, to the provisions of sub-
section ( e) of this section.
(c). Any member of the International Union leaving our employment or
going to work at another craft or occupation, must be given an honorable
withdrawal card and cannot remain a member of the International Union; but
before a withdrawal card is issued the individual must comply with all rules and
laws of the local and International Union.
(d). Any ex-member out on a withdrawal card and desiring to return to
membership, must first deposit his withdrawal card with the local union by
which it was issued; and upon the withdrawal card being accepted, the member
shall be subject to the rules and laws of the local union. Refusal of any local
union to accept a withdrawal card shall be subject to appeal in accordance with
appeal procedure provided for by this Constitution, excluding, however, any
appeal to the convention.
(e). Local unions must not accept withdrawal cards if the member has com-
mitted any offense while out on withdrawal card which would be injurious to
union principles. Also if the local union is paying benefits and the member has
fallen into bad health or is liable to become a charge against the local or In-
ternational Union, acceptance of the withdrawal card can be refused by the local
union. Likewise acceptance of withdrawal card may be refused where adverse
employment conditions exist.
Given under our hands and seal of Local Union No. __---___, this ---------
day of--------------- 19----.
(SEAL)
----------------------------- Secretary.
------------------------------> President.
When Bublewitz conveyed this information to Bodrog, she went to the union office
the next day, which was in the early part of November 1953, accompanied by Buble-
Witz 25 Bodrog testified that when she arrived at the union office, she told Morris
that Bublewitz had informed her it would be necessary for her to obtain a withdrawal
card.27 When she asked Morris to issue such a card to her, Bodrog testified that Mor-
ris refused, stating she would have to pay her dues which had accrued during the time
she was on sick leave, before a withdrawal card would be issued to her. Bodrog
testified that she told Morris she could not pay these accrued dues at the time because
she had not been working and had incurred considerable medical expenses during the
time she was 111 .28 Bodrog asked Morris, she testified, to permit her to pay these
union dues in installments of $4 to be deducted from her paycheck when she returned
26 Bublewitz arranged to accompany Bodrog because she was laid off by the Company at
approximately the same time that the events herein related occurred. When Bublewitz
was laid off, she went to the union office to process a grievance, claiming that her seniority
rights had been violated by her layoff. The witnesses differed as to the date of this first
visit to the union office It is found that the date was approximately the first week in
November 1953, as that was the time when Bublewitz was laid off from her job (G. C.
Exhibits Nos. 8a to 8e, inclusive).
n Bodrog testified on her cross-examination that she told Morris she had never heard
about or knew what a withdrawal card meant. Morris explained to her, according to
Bodrog, that it was a card that employees "going out on sick leave or being laid off or
taking any sort of leave from the plant" had to obtain from the Union in order to be
absolved from paying union dues during the time the employee was not working
23Bodrog testified that during this conversation Morris became quite excited and that
"he started to scream and yell that I'm not the type of person he wants in his union."
LOCAL 169, ETC. 473
to work.29 Morris, she testified, refused her offer to pay her union dues in install-
ments, demanding that it be paid in one lump sum before she would be permitted to
return to work at the plant.30
A few weeks later, Bodrog again went to the union office at Burlington and spoke
with Morris concerning her alleged delinquent union dues. Her reason for returning
to the union office a second time, she testified, was based on the hope that Morris
would be calmer than he was on her first visit to the union office and thus more
amenable to accepting her offer to pay her unpaid union dues in installments. When
she asked him to accept installment payments of $4 to begin immediately, he again
refused, stating, according to Bodrog, that her unpaid dues must be paid in one lump
sum before she could return to work. She again told Morris that since she had not
been working for some time and had contracted medical expenses that it was impossi-
ble for her to pay the accumulated dues in one sum. He insisted, however, that it
must be paid at one time, Bodrog testified.
When her sick leave expired on December 31,31 and she was preparing to return
to work, Bodrog spoke to Paul Putney, a personnel official of the Company, who
told her to report for work on January 4, 1954. At that time Putney said nothing
to her about her union dues. She then telephoned Hartsough, the Union's president,
on the same day, December 31, at his office in Philadelphia.32 Bodrog told Hart-
sough of her two conversations with Morris in which she had offered to pay her
union dues in installments and that Morris had refused to accept anything less than
all dues owing in one sum. She testified that Hartsough told her he would be in
Burlington on January 6, and that she should return to work. In the meantime, ac-
cording to Bodrog, Hartsough stated he would speak to Morris about her case and
"make some arrangement" for her to pay her dues.33
Shortly after Bodrog returned to work on January 4, Sarlo told her to report to the
union office, in order to "straighten out [her] union dues." Bodrog explained on her
cross-examination that she did not consider it necessary to go to the union office at
that time because she had already spoken to Hartsough, the president of the Union,
who had assured her that he would work out some arrangement with Morris when
he came to the union office on January 6.
On January 6, Bodrog called the Burlington union office and asked to speak to
Hartsough but was told by Morris that he was not there.34 She did not leave her
name or telephone number. She attempted get in touch with Hartsough on January 7.
At that time, Hartsough told her that Morris had stated that she had refused to pay
her union dues which had accumulated during the time she was on sick leave. Bodrog
testified that she denied this, stating to Hartsough that she desired to pay her dues
(which amounted to $16) but that Morris insisted it be paid in one lump sum; that
Morris refused to accept installment payments; and that the debts incurred during
her illness made it impossible to pay her accumulated dues in any other manner than
by installments.
After her discharge by the Company on January 8,35 she telephoned Hartsough
"At the time Bodrog made this offer, she intended to return to work in a few weeks.
Later, on the advice of her physician, she notified the Company that she would be unable
to return to work until December 31, 1953. Bodrog testified that during the time she was
on sick leave, she consulted her physician at least once a week and sometimes 2 or 3 times
a week
3° Considerable emphasis is placed by Respondent upon the fact that Bodrog testified
that Robert Coleman, shop chairman of the Union, was present on her first visit to the
union office, although Coleman testified he was present on her second visit. As this con-
flict in testimony is not considered material, it is deemed unnecessary to resolve it.
31 Prior to going on sick leave on August 12, Bodrog was also on sick leave from March
4 to April 22, 1953
33 Hartsough testified that the date of this telephone conversation was January 5
33 Fartsough testified that he also told Bodrog to be at the Burlington union office on
January 6.
' Hartsough was in fact at the union office when Bodrog called See page 475 of this
report.
35 On January 8, Bodrog was notified to report to the Company' s personnel office where
she was notified that the Company had received a letter from the Union stating she was
delinquent in her dues payments and requested her discharge. This letter which is dated
January 7, 1954, reads as follows :
In reference to article 2 of the contract between the Company and the Union, Ann
Bodrog, clock no 1222, is a delinquent in her dues and, therefore, is not a member
in good standing in the Union which is just cause for her to be released from the
employ of Rheem Manufacturing Company.
Very truly yours, JOHN P. Moasis, Business Agent.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at least seven times but was told by his secretary on each occasion that he was not in
his office. She left her name and telephone number with Hartsough's secretary and
requested that he call her. She also informed his secretary on January 8, the same
day she was discharged, that the reason she wished to speak to Hartsough was be-
cause the Company had terminated her employment. She testified that during this
period of time, Hartsough never returned her telephone calls, whereupon she filed
a charge with the Board on January 12, 1954.36
Alice Bublewitz corroborated Bodrog's version of what occurred on her first visit
to the Burlington union office when she accompanied her there in the early part of
November. Bublewitz testified that Bodrog told Morris that she did not know what
a withdrawal card was and that Bodrog remonstrated with him because he had not
mailed her one while she was on sick leave or notified her that it was necessary to
obtain such a card.
It was stipulated by the parties that in January and February 1954, there were a
number of employees of the Company who were members of the Respondent Union
who were delinquent in their dues in an amount substantially the same as the amount
owing by Bodrog, and that the Respondent Union, by agreement with said employees,
permitted them to pay their delinquent dues in installments in amounts as little as $4
per week. It was further stipulated that in no case in which employees who were de-
linquent in their dues to the Union and offered to pay such dues in installments, was
the privilege to do so refused by the Respondent Union.37
It is against this testimony that the Respondent Union's reasons for requesting the
discharge of Bodrog are considered. The Union contends that it requested the Com-
pany to discharge Bodrog because she refused to pay the dues which accumulated
during the time she was on sick leave and that this action on its part was completely
valid under article II of the agreement, supra, covering wages and working conditions
entered into between the Company and the Union.
John Morris, shop chairman of the Union, testified that during the period of time
Bodrog was on sick leave, she came to the union office on two occasions and requested
a withdrawal card.36 When Morris told her it would be necessary for her to first
pay her unpaid dues before she would be entitled to a withdrawal card, Bodrog, ac-
cording to Morris' testimony, refused on both occasions to pay these dues. Her
reason for refusing to pay her dues, Morris stated, was because she claimed she had
never heard of a withdrawal card and furthermore, she should not be held liable for
payment of union dues which had accumulated during the time she was unable to
work due to illness.
Morris also testified that he learned through the Union's plant stewards that Bodrog
had returned to work on January 4. On January 4, he testified, he went to Philadel-
phia and told Hartsough that Bodrog had returned to work without paying her dues
which had accumulated during the time she was on sick leave. Hartsough, accord-
ing to Morris, said: "Get all the facts together in the case and I will be over to [Bur-
lington] tomorrow." On January 5, Morris testified that he received a telephone call
from Hartsough telling him that Bodrog had called him to relate her union dues diffi-
culties. Hartsough thereupon notified him, according to Morris, that he would come
to Burlington on January 6 and "[Hartsough] told me to get all the facts and the
'' When Hartsough was asked about Bodrog's telephone calls, he testified : ". . There
was one at my home one evening, and my wife answered it and said that I took business
calls down in the office. That was a Burlington call. No name was left, so I presume it
may have been Ann "
37 Jack Marston, an employee of the Company, testified that he was notified by the Union
in February 1954, that he owed $28 in delinquent union dues He paid $4 and since that
time, he testified, he has neither paid the balance owing nor had the Union, up to the time
of this hearing, requested the balance
8 Bodrog, upon receipt of her physician's certificate, attesting to her illness, mailed it to
the Company but she did not notify the Union directly that she was going on sick leave.
However, on the basis of the entire record in this case, it is inferred and found that
shortly thereafter, the Union knew she had gone on sick leave. Usually inferences may
be drawn from one fact the existence of another when in common experience there is a
"rational connection between the facts proved and the facts presumed " Tot v. U. S., 319
U. S. 463, 467. Furthermore, George Baxter, a union steward, testified the plant stewards
met once a week during working hours with Morris, Coleman, and Anderson, the union
officials, and that among other things discussed at these meetings were employees who
were on sick leave.
LOCAL 169, ETC. 475
people who are involved in Ann Bodrog's case, and ... he wanted Ann Bodrog
there." 39 [Emphasis supplied.]
Morris testified that when Hartsough came to Burlington on January 6, he told
Morris that Bodrog had telephoned him and he had told her to be at the union office
on January 6 to present her side of the case. When Bodrog failed to appear at the
union office on January 6, Hartsough told him to write a letter to the Company re-
questing her discharge. Morris testified that during the time Hartsough was at the
Union's office on January 6, someone telephoned and asked to speak to Hartsough.
When he inquired as to who wished to speak to Hartsough, the person calling re-
fused to give her name, whereupon, Morris testified, he told the party Hartsough was
not there, although Morris testified that Hartsough told him that Bodrog "would be
at the union office." At another point in his testimony, Morris stated on cross-ex-
amination that while Hartsough was in the office, a person telephoned and asked for
Hartsough. "I asked the person on the other line who was it. They didn't answer;
I just hung up."
The following day, January 7, Morris testified, he spoke to McAllister, the Com-
pany's personnel director and requested Bodrog's discharge because she "was delin-
quent in her dues and not in good standing." 40 McAllister told Morris to state the
Union's request in writing whereupon Morris composed such a letter and sent it to
the Company on January 8, 1954. Bodrog was discharged the same day.41
Elsie Sarlo,42 shop steward of the department in which Bodrog worked, testified
that she heard sometime during the first week of August 1953 from other employees,
that Bodrog was going to take a leave of absence due to ill health 43 She testified
that she told Bodrog about a week before she went on sick leave to obtain a with-
drawal card. Bodrog testified that she took ill while at work on August 12. That
same evening she went to her physician who recommended that she take a 3-month
leave of absence because of neurasthenia. Bodrog also testified that prior to August
12, she neither contemplated taking sick leave nor did she discuss her illness with
Sarlo or anyone else as Sarlo had testified.
Sarlo testified that she was at the union office in November when Bodrog was
there.44 She testified Bodrog requested a withdrawal card and when Morris told
39 Bodrog testified that Hartsough in his telephone conversation told her that he would
arrange when he came to Burlington to have her present at the Union's office to give her
side of the case.
49 McAllister testified that on other occasions when Morris brought to the Company's
attention that union members were delinquent in their dues, Morris did not request their
discharge (other than the O'Connor case mentioned below) but merely requested that such
union members be referred by the Company to the union office. In Bodrog 's case , McAllis-
ter testified, the Company was not asked to notify her to report to the union office The
Company was requested by the Union to discharge her. McAllister also testified that it
is the policy of the Company, in those situations where employees reported for work after
being on sick leave, to notify them to go to the union office and pay any dues which might
have accrued during the time the employee was on sick leave
41 The only employee that the Union ever requested the Company to discharge for non-
payment of dues, other than Bodrog, was one Robert O'Conner O'Conner was a rank-
and-file employee within the bargaining unit who was promoted to supervisor. Subse-
quently, a layoff occurred and O'Conner, due to his seniority, supplanted a rank-and-file
employee in his job When he was no longer a supervisor but again an employee within
the classification of the collective-bargaining unit, the Union requested O'Conner's dis-
charge for nonpayment of dues for the period of time during which he was a supervisor
because he failed to obtain a withdiawal card at the time he was promoted from a rank-
and-file employee to supervisor. The record is silent as to what disposition was made of
O'Conner's case.
41 Sailo was discharged by the Company in February or March 1953, but was rehired
when the Union interceded on her behalf. She testified that she was "grateful" to the
Union for its efforts on her behalf. After being rehired by the Company, she was ap-
pointed a shop steward by Morris around May 1953
43 On cross examination, Sarlo testified that she did not know the reason Bodrog was
taking leave nor did she know she was ill.
44 At one point in her testimony, Sarlo stated that Bodrog was accompanied by Buble-
witz and at another point in her direct examination when she was asked if Bublewitz was
in the office on that occasion, she answered : "I didn't see her there" On her cross-
examination, she testified that she arrived at the union office at about the same time that
Bodrog and Bublewitz walked in.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her he would be unable to issue one to her until she had paid her delinquent dues
that Bodrog refused to pay her dues. Sarlo testified that Bodrog said to Morris:
I know you can fix it so I don't have to pay my dues. Mr. Morris says, "I can't
fix that" he says, "in no way." He says, "I can't change the laws." 45
After Bodrog returned to work, Sarlo testified, that she spoke to her on January 5,
and told her to report to the union office and make arrangements to pay her union
dues. Sarlo stated that Bodrog told her she asked Morris to allow her to pay the
dues in installments but that Morris demanded that it be paid in one sum.
Robert E. Coleman, shop chairman of the Union, testified that he was present
on one occasion when Bodrog accompanied by her infant son, came to the union
office to obtain a withdrawal card. He testified that although Morris offered to per-
mit Bodrog to pay the union dues in installments that she refused to do so stating:
"I can't pay and I won't pay." Coleman testified that Bodrog stated the reason
why she would not pay her accumulated dues was because she never knew there was
such a thing as a withdrawal card and therefore, she should not be compelled to
pay the dues that accrued during the time she was absent from work on sick leave.
Dennis J. Carroll, a shop committeeman of the Union, testified that he was present
when Bodrog came into the union office in November 1953. He also testified that
she refused to pay her union dues although Morris told her she could pay it in
installments. She claimed, Carroll testified, that she could see no reason for doing so
in view of the fact that she was sick and had not been working. He also testified that
she asked Morris to "fix it so that I won't have to pay the dues."
The General Counsel called Margaret Colvin on rebuttal, who worked in the same
department with Bodrog. She testified credibly that all the employees in the ship-
ping department first received their union dues books in the latter part of August
1953, when Sarlo, their shop steward, notified them to report to the office where
they would be issued to them.46 This is contrary to Sarlo's testimony in which she
stated that the union dues books were distributed for the first time during the last 2
weeks of July 1953. Sarlo at one point in her testimony stated that she did not
remember whether Bodrog was working the day the dues books were issued while
at another point she testified she was certain Bodrog was working on that day.
Colvin also testified that the employees in the shipping department were notified
on or about October 19, 1953, that the Company was about to lay off some of them.
Colvin testified that when the foreman announced the names of those to be laid
off, Sarlo, the union steward, who was present when the announcement was made,
did not notify these employees affected by the layoff to obtain withdrawal cards
from the Union.
In the latter part of December, at a time when Colvin had been on a layoff
since October 19, Sarlo telephoned Colvin at her home and told her to report to
the union office to obtain a withdrawal card. When Colvin asked her why she
needed a withdrawal card, Sarlo replied that she would not be permitted to return
to work until she obtained one. Shortly thereafter, she went to the union office,
accompanied by Charlotte Denning, another laid-off employee, and was issued a
withdrawal card 47 Although she obtained it in the latter part of December, the
issuance date inserted on the withdrawal card was a date in October.
Colvin testified that when her layoff ended in January and she had returned to
work that Sarlo asked her for her union dues book. When Sarlo returned it to
her, the spaces in the dues book for the months of November and December had
inserted in them the letters "W. C.1148 Colvin testified that when she inquired of
Sarlo what the letters "W. C." meant, that she replied "Withdrawal Card." Colvin
testified that she has never paid her union dues for the months of November or De-
cember nor has the Union ever requested her to do so.
4s Morris in his testimony made no mention of this alleged request by Bodrog that he
was asked by her "to fix" her unpaid union dues. Morris' testimony was to the effect that
Bodrog refused to pay her dues.
46 Bodrog went on sick leave on August 12 so that the admonition which appears on the
inside cover of the dues book notifying union members to obtain a withdrawal card "when
leaving the Craft" could only have been seen by her at the earliest in October when she
first received her dues book.
47 Morris was at the office when she obtained her withdrawal card.
48 Ordinarily, the Company deducts the union dues from the employees' salary and then
remits the funds representing the aggregate dues to the Union between the 15th and 20th
of the month following the date the dues were deducted. The union stewards then collect
the employees' dues books and take them to the union office where a stamp is placed in
the book indicating the month for which dues are paid. See G. C. Exhibit No. 27, page 31,
article X, sections 5 (a) to 5 (e), Inclusive.
LOCAL 169, ETC. 477
D. Contentions, analysis, and conclusions
This is a case where the General Counsel's witnesses are contradicted by the wit-
nesses for the Respondent. Nevertheless, after observing the witnesses, analyzing
the record and inferences to be drawn therefrom, and reconciling, where possible,
the conflicting evidence, it is concluded that the witnesses for the General Counsel
should be credited. This conclusion is based also on my observation of the witnesses
with respect to the accuracy of their memories, their comprehension and their general
demeanor on the stand in answering the questions put to them. Taking into consid-
eration all these various factors, Bodrog's testimony, which was corroborated by
Bublewitz, is accepted as the more accurate version of the salient facts and of what
was said in the conversation between Bodrog and Morris when her dues delinquency
was discussed by them in the union office on two different occasions in November
1953. Bodrog's testimony that she offered to pay her unpaid dues in installments
and that Morris refused to accept anything less than one sum payment, in conjunc-
tion with Morris' hostility toward Bodrog, the logic of the events established in the
record and the entire background of evidence adduced in this case, merits belief.49
This conclusion is supported and strengthened when it is considered that the facts
detailed above show that the Respondent's witnesses contradicted themselves and
one another. The testimony of both Morris and Sarlo, the union steward, were
evasive, inconsistent, and in some aspects improbable. Moreover, when it is con-
sidered that Morris told the person who called the union office on January 6 that
Hartsough was not there when in fact he was, is an indicium casting doubt upon the
trustworthiness and reliability of Morris' testimony with respect to the issues in this
case. Under the circumstances, this disregard of the truth was particularly culpable
in view of the fact that Morris knew it was most important for Bodrog to speak to
Hartsough, the Union's president, in order to present her version of the dispute with
Morris with respect to her unpaid dues. Therefore, it is concluded, that the Union's
purported efforts, if any, to afford Bodrog an effort to present her version of her
dues difficulties are suspect.
Then too, the Respondent Union's discriminatory refusal to permit Bodrog to pay
her delinquent dues in installments, which privilege was accorded to its other union
members who were delinquent in their dues payments, is a violation of the Act in
that membership in good standing was not available to her on the same terms gener-
ally applicable to other members. The Eclipse Lumber Company, Inc., 95 NLRB
464, 467. Nor is this discriminatory treatment without significance in determining
whether the Union's request to the Company to discharge Bodrog was motivated by
her unpaid dues or by a desire to rid itself of a not too enthusiastic member. More-
over, Colvin's testimony of the partial treatment accorded her when the Union ab-
solved her of the necessity for paying any dues for the time she was laid off is con-
trastable indication of the discrimination practiced against Bodrog. Then too, it
will be recalled that Colvin testified that the withdrawal card which the Union issued
to her in December had an issuance date of October inserted on it. This disparate
treatment of Bodrog was clearly discriminatory.50
It is also significant that in requesting the Company to discharge Bodrog, the
Union did not, as McAllister, the Company's personnel director testified, ask the
Company to notify her to report first to the union office, which the Union did in
the case of the other employees who were delinquent in their dues payments. Another
significant circumstance is that Morris in his haste to have Bodrog discharged first
requested the Company to do so orally whereupon the Company advised him to put
his demand in writing. These indicia of disparate treatment, constitute, when viewed
in the light of the other evidence in this case, further proof of discriminatory
motive.51
'I N. L. R. B. v. Pittsburgh S. S. Co, 337 U. S. 656, 660; N. L. R. B. v. Universal Camera
Corp., 340 U. S. 474, 496; Dinion Coil Co., Inc. v. N. L. R. B., 201 F. 2d 484, 487, 490
(C. A. 2) ; N. L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79, 86 (C. A. 9) ; N. L. R B. v.
James Thompson & Co., Inc., 208 F. 2d 743 (C A. 2) ; Roadway Express, Inc., 108 NLRB
874, where the Board stated : ". . . we recognize that credibility findings may rest en-
tirely upon evidence through observation which words do not, and could not, either pre-
serve or describe."
10 N. L R. B. v. Radio Officers' Union of the Commercial Telegraphers Union, AFL, 347
U. S. 17.
61 Special Machine and Engineering Company, 109 NLRB 838. See also Kaiser Alu-
minum & Chemical Corporation, 93 NLRB 1203, where the Board held that an employee
need not make a tender of uniform dues if membership in the contracting union is made
available only upon compliance with a discriminatory term or condition
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The witnesses for the Respondent testified that when an employee is laid off, goes
on sick leave, military leave, or is leaving his job for any reason, he must obtain
a withdrawal card for which the Union charges a 25-cent fee, in order not to be
liable for the payment of union dues which accrue during the time he is not working.52
Considerable stress was placed by the Union in its presentation of its case that
Bodrog knew it was necessary to obtain a withdrawal card because on the inside
cover of the Union's dues books, printed in heavy black letters is the following:
Without fail take a withdrawal card when leaving the craft.
Bodrog and Bublewitz testified that at other plants at which they were employed,
the union never requested members to obtain a withdrawal card when laid off or on
sick leave, nor was it necessary to pay union dues during the time an employee was
either laid off or on sick leave. They testified also, that if an employee was leaving
his job at one plant in order to take a job with another company, he would obtain
a transfer card if the plant he was going to, had the same affiliated international
union as the plant he was leaving. This, they testified, obviated the necessity of
again paying a union initiation fee at the plant to which he was transferring.53 They
also testified that the Union had not notified them either directly or by posting on
the bulletin board that it was necessary to obtain a withdrawal card when laid off
or going on sick leave.54 When it was brought to Bodrog's attention at the hearing
that printed in the dues book is a statement notifying employees to obtain a with-
drawal card when leaving the craft, she testified that she was not aware of this
because she did not receive her dues book until October, 2 months after she went
on sick leave. Bodrog testified also that the first time she heard a withdrawal card
mentioned was when she was preparing to return to work from sick leave and
Bublewitz told her that Sarlo stated it would be necessary for her to obtain a with-
drawal card.55
Despite this conflicting testimony as to the purpose for obtaining a withdrawal
card, the Trial Examiner is convinced that a withdrawal card was not intended to
be used in those situations where an employee is leaving the craft temporarily.
This conclusion is based on a reading of sections 4 and 5 of the constitution of the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (General Counsel's Exhibit No. 7) which was adopted by the membership
of the local union as its own constitution and bylaws.56
Furthermore, the statement on the inside cover of the Union's dues book 57 which
reads, "Without fail take a withdrawal card when leaving the craft," is clear and
fia Robert Coleman, shop chairman of the Respondent Union, testified as follows when he
was questioned with respect to the statement on the inside cover of the union dues book
which reads : "Without fail, take a withdrawal card when leaving the craft."
Q. What does that mean to you?
A That means that, as I have been saying all along to them, no matter whether
you go on a sick leave, you are laid off, or anything happens to you, you get fired,
still go to the Union and get a withdrawal card.
Q Well, is the person who is going on sick leave leaving the craft?
• s • s s s
A. No, they are not leaving the craft, but they should have a withdrawal card.
Q Does that statement there indicate to them, as you read it, that it means that?
A No, that statement doesn't say that, but that is the way I understand it.
63 Edward Kisielnicki, who prior to working for the Rheem Manufacturing Company,
was employed at a plant in Boston, Massachusetts, having an AFL union, testified :
I talked to Mr Anderson [a union official] before my probationary period was up,
and I gave him what I call the craft card which I got in Boston and I belonged to
the AFL there In order not to pay my initiation fee, because I did belong to the
AFL In other words, that acted as a withdrawal card. . . .
si See Colvin's testimony at page 476 of this report to the effect that when employees in
the shipping department were notified by their foreman in December 1953 that they were
to be laid off, Sarlo, the-union steward, who was present at the time, did not notify those
employees affected by the layoff to obtain withdrawal cards from the Union.
55 It is significant that when Bublewitz asked Sarlo, the union steward, what a with-
drawal card was that Sarlo, according to Bublewitz' testimony, told her that she did not
know but would find out from Morris. Bublewitz also testified that when she accom-
panied Bodrog to the union office in November, Bodrog asked Morris what a withdrawal
card was and Morris "wanted to know who the Bell she thought she was cross-examining."
sfi These provisions will be found on pages 471 and 472 of this report.
67 Respondent's Exhibit No. 1.
LOCAL 169, ETC. 479,
explicit . The plain and unambiguous language of this admonition may not, in the
Trial Examiner 's opinion, be distorted by a different meaning requiring an involved
and equivocal construction in order to attain a desired result. It means what it
says: namely, that only upon leaving the craft, is it necessary to obtain a withdrawal
card. An employee on sick leave is not leaving the craft. He intends to return to
his job, if, and when, he recovers from his illness. Confirmative of this interpre-
tation is the language of Section 5 (c) of the Union's constitution, supra, which
states that a withdrawal card is to be issued to a union member "leaving our em-
ployment or going to work at another craft or occupation.. . . . In its ordinary
dictionary sense, this phrase does not encompass any requirement that an employee
going on sick leave must first obtain a withdrawal card. It is concluded, therefore,
that this misapplication of the purpose for which withdrawal cards were intended
to be used, insofar as it has relevance to the issues in this case, casts doubt upon
the bona fides of the Union's motivation in requesting the Company to discharge-
Bodrog for ostensibly being delinquent in her dues payments.58
Argumentatively assuming that the officials of the Respondent Local Union in
good faith misinterpreted their constitution as to the circumstances under which with-
drawal cards were to be issued, nevertheless, the trier of these facts is not bound by
the Union's interpretation of its constitution58 Moreover, it has long been settled
that where prohibited conduct is engaged in, the offender is justified not by "good
faith," 60 for a statutory infraction is not condoned by an honest mistake 61
1. The issue
Whether the Union in invoking the union-security clause to enforce its demand
that the Company discharge Bodrog violated Section 8 (b) (2) in that it caused the
Company to discriminate against her on some ground other than failure to tender the
requisite dues.
2. Discussion
Section 8 (b) (2) provides that "it shall be an unfair labor practice for a labor
organization or its agents . . . to cause or attempt to cause an employer to dis-
criminate against an employee in violation of Section 8 (a) (3) 62 or to discriminate
sa It is not deemed necessary in order to resolve the issues in this case to determine
whether Bodrog was in fact delinquent in her dues payments because of this misapplica-
tion of the purpose for which withdrawal cards were intended to be used. Nor is it de-
cided for the same reason, whether the Union's misinterpretation, wilfully or otherwise,
of its rules dealing with withdrawal cards, renders Bodrog' s suspension ineffective. If
this question were to be answered in the affirmative, Bodrog might be held to have re-
mained a member in good standing in the Union and therefore, not subject to discharge
under the union-security contract because she would be legally privileged to refuse to pay
dues during the time she was on sick leave As to whether dues accruing during the time
an employee is on sick leave are "periodic dues" within the meaning of Section 8 (b) (2),
compare I9lectiac Auto-Late Co, 92 NLRB 1073. As to whether the Respondent Union
requiring employees to obtain a withdrawal card when going on sick leave violates Sec-
tion 8 (b) (1) (A), see Namm's Ilse, 101 NLRB 466 at 467.
5i Radio Officers' Union of the Commercial Telegraphers Union, AFL, 93 NLRB 1523,
1526, affirmed 196 F. 2d 960 (C A 2), affirmed 347 U. S 17.
GO McQuay-Norras Mfg. Co v. N L. R. B., 116 F. 2d 748, 752 (C. A. 7) ; Injection Mold-
ing Company, 104 NLRB 639, 645.
81 N. L R B v. Illinois Tool Works, 153 F. 2d 811, 814 (C A. 7) ; N. L. R. B. v. Hud-
son Motor Car Co., 128 F. 2d 528, 532-33 (C A. 6) ; Perfect Circle Co. v N. L. R. B, 162
F 2d 566, 569 (C A. 7)
(12 The provisos to Section 8 (a) (3) of the Act are as follows : "Provided further,
That no employer shall justify any discrimination against an employee for nonmem-
bership in a labor organization (A) if he has reasonable grounds for believing that
such membership was not available to the employee on the same terms and conditions
generally applicable to other members, or (B) if lie has ieasonable grounds for be-
lieving that menibeiship was denied or terminated for reasons other than the failure of
the employee to tender the periodic dues and initiation fees uniformly required as a con-
dition of acquiring or retaining membeiship." Though these provisos prohibit only em-
ployei s, and not unions, from justifying the discrimination, a union's conduct in seeking
such discrimination is a violation of Section 8 (b) (2), which forbids unions to "cause
or attempt to cause an employer to discriminate against an employee in violation of sub-
section [8] (a) (3) . . ' ; and a restraint on employee rights in violation of Section
8 (b) (1) (A).
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 initiation fees uniformly required as a condition of acquiring or retaining
membership."
The policy of the Act is to insulate employees from their organizational [Section
7] rights. Thus § 8 (a) (3) and 8 (b) (2) were designed to allow employees
to freely exercise their right to join unions, be good, bad, or indifferent members,
or abstain from joining any union without imperiling their livelihood. The only
limitation Congress has chosen to impose on this right is specified in the proviso
to Section 8 (a) (3) which authorized employers to enter into certain union
security contracts, but prohibits discharge under such contracts if membership
"was not available to the employee on the same terms and conditions generally
applicable to other members" or if "membership was denied or terminated for
reasons other than the failure of the employee to tender periodic dues and initia-
tion fees uniformly required as a condition of acquiring or retaining member-
ship. .. " [The] legislative history [of the Act] clearly indicates that Con-
gress intended to prevent utilization of union security agreements for any pur-
pose other than to compel payment of union dues and fees . No other dis-
crimination aimed at encouraging employees to join, retain membership, or stay
in good standing in a union is condoned.63
Thus, while a union can adopt and pursue any membership policy it deems wise,
and deny and terminate membership on any ground it chooses, it cannot invoke a
union-security agreement (other than for the nonpayment of dues and initiation fees),
where its purpose is to effect the discharge of an employee because the employee
incurred the Union's animus due to her activity on behalf of a rival union.64 Except
for nonpayment of dues and initiation fees, the power of a union to discriminate
in employment has been annulled by the Act; union membership and the right to a
job are divorced. Thus, the House Report on the Labor-Management Relations Act
stated (H. Rep. No. 245, 80th Cong., 1st Sess., page 32) :
... if the suspension or expulsion results from anything other than nonpay-
ment of initiation fees and dues . . ., the union may not require an employer
to discharge the member under an agreement . . . making union membership
a condition of employment. Similarly, if a union has such a contract with an
employer, it may not refuse membership to an employee, and thereby deny him
the right to work, except for his failure to pay uniformly required initiation fees
and dues. In brief, a union may deny membership to an employee upon any
ground it wishes, but the only ground on which it can have him discharged under
a "union security" clause is nonpayment of initiation fees and dues; . . . once
it has admitted a man to membership it can suspend or expel him for several
reasons, but its action cannot cost him his job unless it was for his not making
the specified payments.
While the proviso to Section 8 (b) (1) (A) protects the union's right to prescribe
its own rules with respect to the acquisition or retention of membership, and under
the provisions of Section 8 (a) (3), a union-security agreement may be entered into
whereby failure to tender dues is cause for the union to request the employer to dis-
charge the employee, nevertheless, the union may not under cover of that right dis-
criminatorily enforce its asserted rights in such a way as to deprive one of its members
of her employment.65 "The Board has consistently held that this proviso does not
93 Radio Officers' Union of the Commercial Telegraphers Union, AFL, 347 U. S. 17, 40-42.
05 Union Starch & Refining Co. v. N. L. R. B., 186 F 2d 1008, 1012 (C. A. 7), cert. de-
nied 342 U. S. 815.
65 The following is excerpted from an article appearing in the University of Washing-
ton Law Review (29 Wash. L R. 134) :
Upon acquiring membership in a labor union, a person may gain a property right
which will be protected by the courts [citing cases]. A union member "has a prop-
erty right in his position on the roster" of the union. Such a property right is found
in the union member's right to work, which, because of union security provisions
between the union and various employers, may be jeopardized once his union mem-
bership is taken from him. The union may not interfere [with this property right
of its member] if in so doing it (1) violates standards of procedural due process,
or (2) violates any procedural requirements of the organic law of the union, or (3)
incorrectly applies the substantive law of the union to the alleged offense.
LOCAL 169, ETC. 481
protect conduct which would otherwise be violative of the Act merely because such
conduct was taken pursuant to union regulations." 66
The Respondent argues, however, that under the provisions of Section 8 (b) (2),
once it is shown that an employee is delinquent in the payment of periodic dues which
are uniform in amount and applicability, the right of a union to cause the discharge
of such employee under a valid union-security provision becomes ipso facto unques-
tionable.
The answer to this contention is twofold:
First, the dues were not uniform in applicability as evidenced by the disparate
treatment accorded Bodrog when the Union refused to permit her to pay the delin-
quent dues in installments , a privilege which it accorded to other union members.
By this disparate treatment, the Union forfeited its statutory right to request the Com-
pany to discharge Bodrog for nonpayment of dues.
Secondly, the Respondent Union's argument fails to take into account the relevancy
of the motivation of the Union when it requested the Company to discharge Bodrog.67
The question is not whether a tender was made, but whether Bodrog's alleged failure
to tender the prescribed dues 68 was the operative reason for terminating her mem-
bership in the Union with its consequent loss of employment. The Respondent's
argument appears to overlook the distinction between a union's right to deny the em-
ployee the status of a member, and its right under a union-security agreement with
the Employer, to deny the employee a job. The proviso to Section 8 (b) (1) (A)
provides that a union may prescribe the conditions requisite to membership, may im-
pose obligations upon its members, and may punish defaulting members through
fines, suspensions, expulsion, or similar sanctions. But as the Third Circuit has re-
cently observed, it does not follow that the Union is "authorize[d] . . . to extend
the effective scope of those rules so that they determine the right of a member to the
acquisition or retention of a job." 69
Furthermore, the Respondent contends that it should not be penalized because it
was more lenient in the case of other members who were delinquent in their dues
payments than in the case of Bodrog. This argument fails to recognize, however,
that the leniency shown by the Union for other members is not the basis for any
so-called penalty but rather a manifestation of the Union's animosity toward Bodrog
and an indicium of the discriminatory treatment accorded Bodrog and that this dis-
crimination is one of the bases for concluding that the Union was motivated in re-
questing Bodrog's discharge not because of unpaid dues but because of her rival
union activities and sympathies.
It is true that the Act permits a discharge for loss of membership only when such
membership is lost for failure to tender dues or initiation fees. Thus, the Act limits
the grounds on which good standing membership must be lost in order to legalize
discrimination. In this case, however, Bodrog lost her membership in good standing
because of reasons other than her failure to tender dues, namely, her activities on
behalf of a rival union which incurred the Respondent's displeasure. Bodrog's un-
paid dues was a coincidence seized upon by the Union and not causative for request-
ing her discharge. The Union, in effect, imposed unenunciated conditions over and
above the requirement of tender of dues when it subjectively imposed as a condition
of retaining membership that members not be tainted with any allegiance to a rival
union. In placing unlawful conditions on the continued employment of Bodrog, the
Union exceeded the permissible limits of the Act under which a union can require
an employer to discharge employees.
It is, therefore, concluded and found, that the motivating reason for the Union re-
questing the Company to discharge Bodrog was not her unpaid dues but the smoulder-
ing animosity engendered by Bodrog's preelection activities and sympathies for a
rival union. This animosity was sparked into flame when Bodrog did not pay her
union dues during the time she was on sick leave and was seized upon by the Union
as a pretext to compel her discharge by the Company and thus eliminate a rival union
adherent.
The brief of the Respondent cites various cases to uphold its contention. Union
Starch and Refining Co. v. N. L. R. B., 186 F. 2d 1008 (C. A. 7), cert. denied 342
es Pacific Intermountain Express Company, 107 NLRB 837. To the same effect, see
Elliott v Amalgamated Meat Cutters, 91 F Sapp 690, 691 (W D. Mo, 1950).
87N L R B. v. Radio Officers' Union of the Commercial Telegraphers Union, AFL, 147
U S 17, 43.
ea Respondent's contention which is based on the premise that Bodrog refused to tender
payment of her dues is contrary to the finding made above
69 N. L R B v. Philadelphia Iron Works, 211 F. 2d 937, 941
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U. S. 815, affirming 87 NLRB 779, cited with approval by the Supreme Court in the
Radio Officers' case, supra, is precedent for the holding herein made. In that case,
the Court of Appeals for the Seventh Circuit held that a valid union-security agree-
ment did not justify the discharge of employees who were denied membership in the
contracting union because they would not take the union's membership oath which
was uniformly required of all applicants for admission. Both the Massera case, 101
NLRB 837, and the Chisholm-Ryder Company case, 94 NLRB 509, are distinguish-
able because it was found in those cases that the Union's reason for requesting the
employees' discharge was their nonpayment of dues and not "dual unionism." Re-
spondent's reliance upon the Standard Brands case, 97 NLRB 737, is misplaced be-
cause the question of whether the union was motivated in requesting the employee's
discharge by reasons other than that of nonpayment of dues was not involved.
Upon the basis of the foregoing findings and conclusions, and upon a clear pre-
ponderance of all the relevant record evidence, it is found that by causing the Rheem
Manufacturing Company to discharge Ann Bodrog, its employee, under the foregoing
circumstances, the Respondent Union violated Section 8 (b) (2) and 8 (b) (1) (A)
of the Act 7°
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union, occurring in connection with the opera-
tions of the Rheem Manufacturing Company, have a close, intimate, and substan-
tial 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.
IV. THE REMEDY
It will be recommended that, in order to remedy the unfair labor practices, the
Respondent Union cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Furthermore, it will be recommended
that the Respondent notify the Rheem Manufacturing Company and Ann Bodrog,
in writing, that it has withdrawn its objection to the employment of Ann Bodrog by
the Company. It will be further recommended that the Respondent make Bodrog
whole for any loss of pay incurred since her discharge, by reason of the discrimi-
nation by payment to her of a sum of money equal to that which she normally
would have earned as wages from the date of her discharge to 5 days after the Union
gives the notification specified above less her net earnings, if any, during such period.
Crosset Lumber Company, 8 NLRB 440. Back pay shall be computed in accord-
ance with the Board's usual policies. F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Rheem Manufacturing Company is an employer engaged in commerce within
the meaning of Section 2 (2), (6), and (7) of the Act.
2. Local 169, Industrial Division International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. By threatening to cause violence and bodily harm to employees and by threat-
ening to cause the discharge of employees from employment with the Company, if
such employees spoke favorably of, or engaged in activities on behalf of, the United
Steelworkers of America, CIO, the Respondent has restrained and coerced said em-
ployees in the exercise of the rights guaranteed them in Section 7 of the Act, and
has thereby engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (1) (A) of the Act.
4. By causing the Rheem Manufacturing Company to discharge Ann Bodrog, the
Respondent Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
7°N L. R B v George D Auchter Co, 209 F 2d 273, 276-277 (C A 5) , Shenn Val-
ley heat Packeis, Incorporated, 105 NLRB 491 ; National Biscuit Company, 109 NLRB 985