Peerless Tool and Engineering Co.

National Labor Relations Board - Board Decisions

Mar 7, 1955

111 N.L.R.B. 853 (N.L.R.B. 1955)

PEERLESS TOOL AND ENGINEERING CO. 853
PEERLESS TOOL AND ENGINEERING Co. and MARLIN TAYLOR AND LOWELL
HALL
DIE AND TOOL MAKERS LODGE No. 113, INTERNATIONAL ASSOCIATION OF
MACHINISTS, AFL and MARLIN TAYLOR AND LOWELL HALL. Cases
Nos. 13-CA-1661 and 13-CB-297. March 7, 1955
Decision and Order
On August 25, 1954, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent Company, Peerless Tool and Engineering Co., had
engaged in certain unfair labor practices, and that the Respondent
Union, Die and Tool Makers Lodge No. 113, International Association
of Machinists, AFL, had engaged in and was engaging in certain un-
fair labor practices, and recommending that the Respondents cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondent Union had not engaged in
certain other unfair labor practices and recommended that the com-
plaint be dismissed in that respect. hereafter, the Respondents filed
exceptions to the Intermediate Report and supporting briefs, and Re-
spondent Union filed a motion to dismiss the complaint in certain
respects, which motion is denied in part, and granted in part, in accord-
ance with the findings made herein.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
cases 1 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, to the extent, and with the additions and
modifications indicated below?
1. The Section 8 (b) (2) allegations of the complaint
We agree with the Trial Examiner's finding that the Union violated
Sections 8 (b) (2) and 8 (b) (1) (A) of the Act by causing the Com-
pany to discharge employees Taylor , Hall, Salisbury , Pieha, and
Bellendir for reasons other than their failure to tender periodic dues
uniformly required as a condition of retaining membership in the
Union.
The Union's request for oral argument is hereby denied, as the record and briefs ade-
quately reflect its position.
2 Although the complaint alleged coercion by the Respondent Union and the Respondent
Company with respect to- employee Cantrell , the Trial Examiner made no finding with
respect to these allegations and no exceptions were filed thereto. Accordingly, we deem
it unnecessary to pass on these allegations.
111 NLRB No. 140.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As described in the Intermediate Report, the union constitution and
rules provided that if a member became 3 months delinquent in the
payment of dues, he was automatically dropped from membership.
Testimony credited by the Trial Examiner established that on Sep-
tember 28, 1953, before they would have become 3 months delinquent
in their dues, Taylor and Hall went to the union office and made a
personal tender of their dues for the previous months, which Business
Agent Wilke refused to accept, stating that they could not pay their
dues unless they also paid the assessment.' The Union contends that
even if this incident occurred, subsequent requests by Union Steward
Brasfield that Taylor and Hall pay only their dues made it incumbent
upon them to make further tender of dues, and that failure to do so
make them legally subject to discharge. However, the record does
not establish that such a request was made. According to Brasfield,
his subsequent conversations with Taylor and Hall and other delin-
quent members were limited to statements that they were delinquent
in their dues, and that if they were 3 months delinquent, they would
be subject to discharge. This hardly constitutes an offer that the
Union would accept dues without the condition which it previously
attached. In the absence of such an offer being communicated to
Taylor and Hall, they were not required to make recurring futile
tender in the face of Wilke's explicit rejection on September 28.
We turn next to the facts relating to the 4leged_dues delinquencies
of Salisbury, Pieha, and Bellendir. The last month for which Salis-
bury paid his dues was March 1953. He made no tender of dues to the
Union during the months of April, May, and June, 1953, and his mem-
bership automatically terminated at the end of June under the Union's
3-month rule. In September and November he indicated to Stew-
ard Brasfield that he would pay his dues but not the assessment. In
the November conversation, Brasfield replied that Salisbury could not
pay his dues without paying the assessment.
On June 22,1953, Pieha succeeded in paying his dues for the month
of May at the union office, after protesting that he was unable also to
pay the assessment. At that time, he was informed by the union clerk
who accepted his dues that "they [the Union] wouldn't take the next
payment unless he paid the assessment." Pieha subsequently heard
from other employees that dues were being refused in this manner.
He made no tender of dues for the months of June, July, and August,
and therefore, according to the union rules, his membership was ter-
s We do not adopt the Trial Examiner 's statement that it had been a " long established
practice" for the union stewards to collect dues at the plant , as the evidence relating to
such a practice is inconclusive . This does not, however , affect our agreement with the
Trial Examiner 's ultimate conclusion. Like the Trial Examiner , we find that the alleged
"donation" was in fact treated as an assessment by the Union . Although it did not tech-
nically qualify as such, the Union itself so referred to it, and clearly considered it manda-
tory for the members to contribute.
PEERLESS TOOL AND ENGINEERING CO. 855
minated at the end of the month of August. He offered to pay Bras-
field in November. Brasfield replied merely that "It is out of my
hands."
In May 1953, Bellendir paid his dues through the month of July.
He testified that he was "pressured" to pay the assessment at that
time, but that he was permitted to pay his dues only after he explained
that he was unable to pay the assessment. On October 28, 1953, a few
days before he would have become 3 months delinquent in his dues,
and therefore no longer a member in good standing, Bellendir mailed
the Union $4, the exact amount of his dues for August, together with
his dues book. A few days later, he received in the mail a receipt for
a $4 "donation," dated October 29, and his dues book without an Au-
gust dues stamp. A few days after November 1, Bellendir spoke to
Brasfield about the $4 being applied to the assessment, instead of to
his dues. Brasfield told him he would have to go to the union office
to have it changed. Bellendir asserts that he did not go to the union
office because he knew that on the union records he was- already 3
months in arrears and he thought it was too late for him to do any-
thing about it.
The Trial Examiner found that each of the discharged employees
made a tender of dues on at least one occasion, and tender was either
refused by the Union, or the money was misapplied to the assessment,
and subsequent tender was excused as futile because the Union had a
policy that payment of the assessment was a condition precedent to
the acceptance of dues payment. However, it is undisputed that, as
related above, Salisbury and Pieha made no tender of dues during the
3 months following their last dues payment, which was the time al-
lotted for tender under the Union's automatic termination of member-
ship rule. In determining whether the Union could thereafter legally
cause their discharge, it is therefore necessary to determine whether
their failure to make a tender during this period was excused.
We agree with the Trial Examiner's finding that the Union had a
policy of refusing to accept dues unless the assessment for the strike
fund. was also paid. The existence of such a policy is shown by the
statement by an employee of the Union to Pieha that his next dues
payment would not be accepted unless he also paid the assessment; by
Wilke's rejection of tenders of dues on September 28 by Taylor, Hall,
and Cantrell, because the assessment was not paid; and by the state-
ments of Union Steward Brasfield at the plant to employees Hall,
Cantrell, Salisbury, and Pieha in September and November, that dues
would not be accepted unless the assessment was paid. We also find
that the misapplication of dues money mailed to the Union by Hoppe
on August 26, and by Bellendir of October 28, as fully described in
n
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intermediate Report, resulted from the application of the above
policy.'
This policy of the Union not to accept dues without payment of
the assessment was in effect during at least a portion of the 3-month.
period ending June 30, 1953, in which Salisbury was otherwise re-
quired to tender his dues to avoid termination of his membership.
The letter announcing the assessment for the strike fund was issued
by the Union to the membership on May 18, 1953. By June 22, 1953,
the fact that the Union would not accept dues unless accompanied by
payment of the assessment was openly expressed by a union clerk
charged with the acceptance of dues from the members. That this
statement was in fact an accurate statement of the Union's policy in
this respect, is borne out by the subsequent application of the policy
in Wilke's refusal to accept the dues of employees, and by its reitera-
tion on several occasions by Union Steward Brasfield. The substance
of the union policy is the controlling factor in determining whether
tender would have been futile. Because of the existence of the union
policy during the latter portion of the period during which Salisbury
could have made a timely tender of dues, we are convinced that such
a tender by him in fact became a futile gesture before his grace period
expired. As regards Pieha, we find that tender of his dues during the
months of July and August would have been futile in view of the prior
statement to him that his next dues payment would not be accepted
unless accompanied by the assessment, and the fact that this was
indeed the union policy during this period.
As previously indicated, Bellendir's last tender of dues was in fact
timely with respect to the Union's automatic suspension rule, but the
money was misapplied by crediting it to the assessment. The Union
contends that it was incumbent on Bellendir to have the misapplica-
tion rectified, and to continue to tender his dues thereafter. We find
that the misapplication was in fact an indication of the futility of
tender which indeed existed under the Union's policy not to accept
dues unless the assessment was paid, and therefore Bellendir was not
required to make further tender. In the circumstances related, the
4 The Trial Examiner found that although these misapplications were indicative of the
Union's policy not to accept dues without the assessment , they appeared to be the result
of errors. We do not adopt the latter conclusion , which is inconsistent with the finding
that they were indicative of a policy , and also with the Trial Examiner 's characterization
of the Union's explanation of its handling of Hoppe's remittances as unconvincing. How-
ever , as there is no exception to the recommendation to dismiss the portion of the com-
plaint relating to these incidents , we adopt this recommendation pro forma.
The Union excepts to the receipt in evidence of certain carbon copies of letters from
Hoppe to the Union requesting that the misapplication of his dues money be corrected, on
the ground that the best evidence rule requires the introduction of the original letters
unless the General Counsel could not have secured the originals from the Union by sub-
pena The letters were admitted subject to substitution of the originals if the Union
would consent to produce them In these circumstances we find that the Respondent
Union was not prejudiced by receipt of the copies in evidence.
PEERLESS TOOL AND ENGINEERING CO. 857
failure of Salisbury, Pieha, and Bellendir to tender dues during their
respective 3-month grace periods is immaterial.5
For the foregoing reasons, we reach the same conclusion as the
Trial Examiner did, and find that the Respondent Union violated
Section 8 (b) (2) of the Act.
2. The Section 8 (b) (1) (A) allegations of the complaint
The Trial Examiner found that the Union violated Section 8 (b)
(1) (A) of the Act by threatening that it would not process grievances
for employees who failed to pay an assessment to the union strike fund.
We find in agreement with the Trial Examiner and contrary to the
Union's contentions, that the threats were made on the occasions found
by the Trial Examiner.6 The Union also contends that even if the
threats were made, threats of this nature do not constitute a violation
of Section 8 (b) (1) (A) because they are not coercive of employees
in the exercise of the rights guaranteed in Section 7 of the Act. Sec-
tion 7 of the Act guarantees to employees the right to engage in union
activities, and also the right to refrain from any or all such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment by the tender of periodic dues and initiation fees uniformly
required, as authorized in Section 8 (a) (3) of the Act. The Board
has previously noted that denial to employees of so valuable a facility
as the Union's assistance in prosecuting grievances is a grave matter,'
and clearly therefore, a threat to do so is coercive in nature.
It is true, as the Union contends, that an employee who is a union
member and who refuses to comply with requirements of the union to
perform additional obligations or activities is not immune from all,
forms of compulsion by the union. Under the proviso to Section
8 (b) (1) (A) which reserves to labor organizations the right to pre-
scribe rules regarding membership, sanctions such as fines," or even
expulsion from union membership 9 may be imposed to secure com-
pliance with a union's rules and requirements, for although these meas-
ures are in fact coercive, they are permissible under the proviso as
matters confined to internal union administration. However, a threat
not to represent an employee in the processing of his grievances is
clearly not limited to internal union administration. The union enjoys
5 Eclipse Lumber Co. Inc ., 95 NLRB 464 , 467, enfd. 199 F 2d 684 ( C. A. 9) ; Westing-
house Electric Corporation, 96 NLRB 522 , enfd. 203 F . 2d 173 ( C. A. 9).
6 As we find that the record supports the Trial Examiner 's factual finding that Union
Steward Chmielak made the threats in question after September 1, 1953, and continued
to reiterate them at least during October and November 1953, and therefore within the
Section 10 ( b) period, we find this Section 8 (b) (1) (A) allegation was not barred by
Section 10 ( b), as contended by the Respondent Union.
7 Hughes Tool Company, 104 NLRB 318 , pp. 326-328.
8 Minneapolis Star and Tribune Company, 109 NLRB 727.
9International Typographical Union, et at (American Newspaper Publishers Assn.), 86
NLRB 951.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its position as exclusive representative of the employees by virtue of
Section 9 (a) of the Act, which provides in part that :
Representatives designated or selected for the purposes of collec-
tive bargaining by the majority of the employees in a unit appro-
priate for such purposes, shall be the exclusive representatives of
all the employees in such unit for the purposes of collective
bargaining... .
The Board has held that an organization which is granted exclusive
bargaining rights under Section 9 has, in return, assumed the respon-
sibility to act as a genuine representative of all the employees in the
bargaining unit, and, more specifically, that Section 9 (a) gives rise
to a duty by such a labor organization impartially and without dis-
crimination to accept and process all grievances on which its aid is
requested by the employees it represents.10 This duty of the bargain-
ing representative to the employees and the corresponding right of
the employees to have this bargaining representative undertake to per-
form the duty arise from the fact that the employees are in the bar-
gaining unit, irrespective of union membership or the existence of a
union-security contract. We find, in agreement with the Trial Exami-
ner, that the threats to discriminate in the performance of this duty,
which the Union made here for the purpose of coercing employees to
contribute to its strike fund, are threats of reprisal prohibited by
Section 8 (b) (1) (A) of the Act.
3. The Section 8 (a) (3) allegations of the complaint
The Trial Examiner found, and we agree, that the Respondent Com-
pany violated Section 8 (a) (3) and (1) of the Act by discharging
employees Hall, Taylor, Pieha, Salisbury, and Bellendir, at the re-
quest of the Union, thus discriminating in regard to the tens€e of.,
employment of these employees, within the meaning of Section 8 (a)
(3) of the Act.
The Company contends that none of the discharged employees ever
informed Personnel Director Fridlund that the Union had refused to
accept their dues, and excepts to the Trial Examiner's finding that
Fridlund was so informed by all of the employees except Bellendir at
the time Fridlund notified them of their discharge. The Company
contends that the Trial Examiner improperly credited the testimony
of the employees in this respect. It is not Board policy to overrule
credibility findings of a Trial Examiner unless a clear preponderance
of all the evidence establishes that his findings are incorrect. We per-
ceive no basis in this record for overruling the Trial Examiner in this
regard. The Company further contends that Fridlund's inquiry of
Business Agent Wilke, and Wilke's reply that "these men had not paid
10 See Hughes Toot Company, supr a, at p. 325.
PEERLESS TOOL AND ENGINEERING Co. 859
their dues," should excuse the Company's action in going ahead with
the discharges. We do not agree. The employees had not informed
Fridlund that they had paid their dues; they specifically told him
that the reason the dues remained unpaid was that the Union had
refused to accept their tender of dues unless accompanied by pay-
ments to the strike fund. Having been so informed by the employees,
Fridlund was not justified in relying on Wilke's statement that the
dues were not paid as proof that they had not been tendered. Ac-
cordingly, we affirm the Trial Examiner's finding that the Company
violated Section 8 (a) (3) and (1) of the Act.
Order
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders :
I. The Respondent, Die and Tool Makers Lodge No. 113, Interna-
tional Association of Machinists, AFL, Chicago, Illinois, its officers,
representatives, agents, successors, and assigns, shall :
1. Cease and desist from : -
(a) Causing or attempting to cause Peerless Tool and Engineering
Co., its officers, agents, successors, and assigns, to discharge or in any
other manner to discriminate against its employees with respect to
whom membership in the Respondent Union has been denied or ter-
minated upon some ground other than failure to tender the periodic
dues and initiation fees uniformly required as a condition of acquiring
or retaining membership or to discharge or in any other manner to
discriminate against its employees in violation of Section 8 (a) (3)
of the Act.
(b) Restraining or coercing employees of Peerless Tool and Engi-
neering Co., its officers, agents, successors, and assigns, in the exercise
of their right to engage in or to refrain from engaging in any and all
of the concerted activities guaranteed to them by Section 7 of the Act,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment 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 Peerless Tool and Engineering Co., in writing, that it
withdraws its objections to the employment of Lowell Hall, Marlin
Taylor, Joseph Pieha, Edward Salisbury, and James Bellendir, and
requests it to offer them immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges.
(b) Notify Lowell Hall, Marlin Taylor, Joseph Pieha, Edward
Salisbury, and James Bellendir, in writing, that it had advised Peer-
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less Tool and Engineering Co. that it withdraws its objections to their
employment and requests it to offer them immediate and full
reinstatement.
(c) Make whole Lowell Hall, Marlin Taylor, Joseph Pieha, Edward
Salisbury, and James Bellendir for any loss of pay they may have suf-
fered as a result of the discrimination against them in the manner set
forth in the section in the Intermediate Report entitled, "The Remedy."
(d) Post in conspicuous places in its business office at Chicago, Illi-
nois, where notices are customarily posted, copies of the notice attached
to the Intermediate Report marked "Appendix A." 11 Copies of said
notice, to be furnished by the Regional Director for the Thirteenth
Region, shall, after being duly signed by the Respondent Union's
official representative, be posted by it immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the Respond-
ent Union to insure that such notices are not altered, defaced, or cov-
ered by any other material.
(e) Mail to the Regional Director for the Thirteenth Region signed
copies of the notice attached to the Intermediate Report marked "Ap-
pendix A" for posting, the Employer willing, at its plant in places
where notices to employees are customarily posted. Copies of said
notice, to be furnished by the Regional Director for the Thirteenth
Region, shall, after being signed by the Respondent Union's official
representatives, be forthwith returned to the Regional Director for
said posting.
(f) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps it
has taken to comply herewith.
II. The Respondent, Peerless Tool and Engineering Co., Chicago,
Illinois, its officers, agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Encouraging membership in Die and Tool Makers Lodge No.
113, International Association of Machinists, AFL, by discriminating
in regard to the hire or tenure of employment of its employees, or by
discriminating in any other manner in regard to any term or condition
of employment in order to encourage membership therein.
(b) Interfering with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form labor organizations,
to join or assist Die and Tool Makers Lodge No. 113, International
11 This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph therein the words "The Recommendations of a Trial Examiner" and substi-
tuting in lieu thereof the words "A Decision and Order " In the event that this Order
is enforced by a 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."
PEERLESS TOOL AND ENGINEERING CO. 861
Association of Machinists, AFL, or any other labor organization, to
bargain collectively through representatives of their own choosing and
to engage in other concerted activities for the purposes of collective
bargaining, or other mutual aid and protection, or to refrain from any
or all such activity except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in 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) Offer to Lowell Hall, Marlin Taylor, Joseph Pieha, Edward
Salisbury, and James Bellendir immediate and full reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges, and make each of them
whole for any loss of pay he may have suffered by reason of such dis-
crimination against him in the manner provided in the section of the
Intermediate Report entitled "The Remedy."
(b) Post in conspicuous places at its Chicago, Illinois, plant, and in
all places where notices to employees are customarily posted, copies
of the notice attached to the Intermediate Report and marked "Ap-
pendix B." 12 Copies of said notice, to be furnished by the Regional
Director for the Thirteenth Region, shall, after being duly signed by
the Respondent's representatives, be posted by the Respondent, imme-
diately upon receipt thereof and maintained by it for a period of sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that such notices are
not altered, defaced, or covered by other materials.
(c) Notify the Regional Director for the Thirteenth Region in writ-
ing, within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations of the Act other than those found
herein.
32 This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph therein the words "The Recommendations of a Trial Examiner " and substituting
in lieu thereof the words "A Decision and Order ." In the event that this Order is en-
forced by decree of a United Staets 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."
Intermediate Report
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Marlin Taylor and Lowell Hall,
individuals, against Peerless Tool and Engineering Co., in Case No. 13-CA-1661,1
herein called the Company, and upon charges duly filed by said individuals against
Die and Tool Makers Lodge No., 113, International Association of Machinists, AFL,
'The ouginal charge in this case waQ filed on February 12, 1954, arid thereafter
amended on March 31, 1954, and April 15, 1954.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein referred to as Respondent Union or Local 113, in Case No. 13-CB-297,2 the
General Counsel of the National Labor Relations Board, herein called General
Counsel 3 and the Board, respectively, by the Regional Director for the Thirteenth
Region (Chicago, Illinois), issued its consolidated complaints and notice of consoli-
dated hearing, dated April 19, 1954, against Respondent Company and Respondent
Union alleging in substance that the Respondent Company: (1) Since on or about
February 8, 1954, by various enumerated acts had interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed to them by Section 7
of the Act in violation of 8 (a) (1) of the Act; and (2) on or about February 10,
1954, at the request and demand of Respondent Union did discriminatorily dis-
charge six named employees in violation of Section 8 (a) (3) of the Act, and alleg-
ing further in substance that the Respondent Union: (1) Since on or about August
12, 1953, restrained and coerced the employees of Respondent Company in the exer-
cise of the rights guaranteed them in Section 7 of the Act thereby engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act; and (2)
on or about February 8 and 10, 1954, attempted to and did cause Respondent Com-
pany to discriminatorily discharge said named employees in violation of Section
8 (b) (2) of the Act and Section 2 (6) and (7) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act. Copies of the consolidated complaint, the
charges and various amended charges, order of consolidation, and the notice of con-
solidated hearing were duly served upon the Respondent Company and Respondent
Union.
Each Respondent duly filed its answer wherein it admitted certain allegations of
the complaint but denied the commission of any unfair labor practices.
Pursuant to said notice , a hearing was held on June 9, 10, and 14, 1954; at Chicago,
Illinois, before the duly designated Trial Examiner. The General Counsel and each
of the Respondents were represented at the hearing by counsel. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties. Briefs were filed by the General
Counsel and each of the Respondents on July 30, 1954.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
Peerless Tool and Engineering Co. is, and at all times herein referred to, has been
a corporation organized and existing by virtue of the laws of the State of Illinois,
having its sole plant and principal office located in Chicago, Illinois, where it is,
and has been, engaged in the manufacture and sale of aircraft precision parts.
Respondent Company in the course and conduct of its business and in the operation
of its plant, at all times herein, did purchase and has continuously purchased large
quantities of raw materials, parts, and supplies which, in the calendar year 1953
were valued at approximately $284,000, of which approximately 90 percent was
shipped to said plant from places located outside of the State of Illinois. Respond-
ent Company did cause and has continuously caused large quantities of its finished
products to be manufactured, which, in the calendar year 1953, were valued at
approximately $2,800,000, of which approximately 98 percent was sold and trans-
ported from said plant to customers located outside the State of Illinois.
The Respondent admits, and the Trial Examiner finds, that the Respondent Com-
pany is engaged in commerce within the meaning of the Act.
H. THE RESPONDENT LABOR ORGANIZATION INVOLVED
Die and Tool Makers Lodge No. 113, International Association of Machinists,
AFL, is a labor organization admitting membership to employees of the Respondent
Company.
III. THE UNFAIR LABOR PRACTICES
A. Basic facts
On or about May 1, 1952, Peerless and Local 113 entered into a 2-year contract
terminating on May 1, 1954, which contained the following union-security clause:
2 The original charge in this case was filed on February 12, 1954, and subsequently
amended on March 31, 1954, and April 15, 1954.
3 This term specifically includes the counsel appearing for the General Counsel at the
hearings.
PEERLESS TOOL AND ENGINEERING CO. 863
Article I Section 2-Union Security
The Company hereby agrees that all present employees who are members of
the Union shall remain members of the Union as a condition of employment,
and that all present employees who are not members of the Union shall become
and remain members of the Union not later than the thirty-first (31st) day
after the execution of this agreement as a condition of employment; and that all
new employees shall become and remain members of the Union not later than
the thirty-first (31st) day after hiring date as a condition of employment.
On February 5, 1954, Peerless notified Local 113 in accordance with the terms
of this contract that it intended to lay off certain named employees.
On February 8, 1954, Local 113 sent the following registered letter to Peerless:
MR. Roy FRIDLUND, Personnel Manager February 8, 1954.
Peerless Tool d Engineering Co.
4429 W. Division Street
Chicago 51, Illinois
DEAR SIR. Please be advised that the following people have become delinquent
in their dues to this organization:
James Bellendlr--------------------------- 1 1-1071
William Bowman ------------------------- M M-68977 4
George Cantrell -------------------------- I 1-1244
Lowell Hall------------------------------ I 1-608
Marlin B. Taylor ------------------------- 1 1-487
Joseph Pieha----------------------------- E E-39300
Edward Salisbury------------------------- 1 1-1287
We are therefore requesting their discharge as per Article I, Section 2 of our
current agreement.
Very truly yours,
DIE & TOOL MAKERS LODGE No. 113, I. A. OF M.
(Signed) FRANK M. WILKE, Business Representative.5
It was stipulated, in accordance with the facts established at the hearing, that the
last month for which each of the above-named employees paid dues was as follows:
James Bellendlr--------------------------------- July 1953
George Cantrell-------------------------------- June 1953
Lowell Hall----------------------------------- June 1953
Marlin B. Taylor----------------------------- August 1953
Joseph Pieha----------------------------------- May 1953
Edward Salisbury----------------------------- March 1953
The following statement of union rules was attached to the union book of each
member:
1. Your dues are payable in advance.
2. If you allow your dues to get three (3) months in arrears, you are auto-
matically dropped by the Grand Lodge and it will be necessary for you to pay
a reinstatement fee. .. .
On the afternoon of February 8 each of the individuals listed in the letter dated
February 8 was notified by the Company of the Union's request and that as of
February 10 his services would be terminated by Peerless.
B. Local 113's strike-fund donation or assessment
For a period of some 4 months or so early in 1953 about 1,000 of the approxi-
mate 4,000 members of Local 113 had been engaged in strikes at plants in the
Chicago area other than Peerless. As a result of the financial drain caused by the
strikes the strike fund of Local 113 had become depleted.
4 A motion by the General Counsel to strike the name of Bowman from the complaint
was allowed by the Trial Examiner without objection
6 None of the individuals listed in the Union's letter were named in the list of persons
whom Peerless intended to lay off
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under date of May 18, 1953, Local 113 by action of its executive board caused
the following letter on the letterhead of the Local to be mailed to each of its
members:
DEAR SIR AND BROTHER: There will be a voluntary donation to support our
striking brothers in the following amounts:
$10 weekly for those journeymen working in shops with $2.73 contracts.
$5 weekly for all others.
The first of such assessments is due May 22, 1953.
You will receive a receipt for your donation and the amount will be recorded
on the assessment pages of your dues book.
This assessment will run as long as it is necessary to win our fight.
Fraternally yours,
DIE & TOOLMAKERS LODGE No. 113, I. A. OF M.
E. W. McDOLE, Financial Secretary.
On June 10, 1953, a shop meeting of all the union members at the Peerless plant
for the purpose of explaining the necessity f9r these donations was held in Harmony
Hall. The meeting was presided over by Shop Steward Tony Chmeilak assisted
by Business Agent Frank Wilke. After Chmeilak had explained the necessity for
the above action, he was asked if the members "had to pay" the donations. Chmeilak
answered that it had to be paid and that "if the men did not pay the assessment, there
would be no necessity for them to bring any grievances to him for, if they did, he
would tear up the grievances and throw them into the garbage can." Wilke immedi-
ately "corrected," to use Wilke's own terminology,6 Chmeilak by stating, "Well,
this here assessment is voluntary. You don't have to pay it if you don't want to but
if you don't pay it, don't come to the Union for anything because you most cer-
tainly won't get it." 7 Later in the meeting Chmeilak threatened "to get" any non-
donating members "one way or another." Chmeilak called the attention of the mem-
bers to the fact that, if they became 90 days delinquent in the payment of their dues,
they automatically were dropped from membership under the constitution of the
Union so that, under the union-security clause of the contract with Peerless, such in-
dividuals became subject to discharge at the request of the Union.
Despite the "correction" by Wilke at the June 10 meeting, Chmeilak admitted that
he continued to reiterate his threat not to process grievances for those who failed
to donate until September 1, 1953. He was positive that after September 1 he never
again reiterated this threat because, as he testified at the hearing:
Q. Are you quite sure you didn't have such a conversation?
A. Yes, and the reason is this. I had been beating my head against the wall
to try to get these men to pay their dues, and then I had these donations books
to take care of at the same time. So I decided, well, after September 1, I wasn't
doing any more of this.
Q. Well, are you quite sure that you didn't have any conversation with Mr.
Cerminn about the matter of handling grievances?
A. No, I never said that after September 1.
However, the weight of the evidence is to the contrary. Cerminn testified that
Chmeilak restated this same threat to him on a number of occasions in the "late
fall" of 1953 on dates unknown to him but subsequent to the time when Local 113
failed to return Cerminn's dues book after he had mailed that book and a check to
the Union on or about September 23, 1953. There was, in addition, credible testi-
mony that Chmeilak also threatened Cerminn and Hoppe, whose union book was
"lost" under circumstances strikingly similar to those noted above, that the employees
could not secure work in any other union plant in the area without their union books,
that he, Chmeilak, could only determine if they were members of the Union in good
standing by seeing their "lost" union dues book and further that he, Chmeilak, would
only process grievances for members with books showing a paidup membership.
Both Chmeilak and Wilke admitted the original statement of Chmeilak to the effect
that the members "had" to pay the assessment. Wilke testified that he promptly "cor-
rected" this statement but was unable to recall what he said in his so-called correction
other than that the payment was "voluntary."
9 This finding is made upon the undenied and credible testimony of employee Andy
Barnes who is not directly involved in this hearing and is one of the two employees whose
discharge was not requested by the Union on February 8 although he had not paid a con-
tribution to the strike fund. Barnes appeared to be an honest witness whose testimony
could be relied upon.
PEERLESS TOOL AND ENGINEERING CO. 865
Clearly it was the Union 's policy, contrary to Wilke's "correction ," that grievances
were to be processed only for employees who had contributed donations.
As evidence to the contrary the Union cites the fact that Chmeilak actually
processed a grievance for one Messina who had paid no donation . Unfortunately
for the Respondent Union 's contention the facts developed that three employees
were involved in this same grievance and fortunately for Messina , the other two indi-
viduals involved had paid their donations.
The Trial Examiner , therefore , finds that the weight of the evidence , as well as the
probability of the situation , are that Chmeilak did make these admitted threats after
September 1 and that he continued to reiterate them at least during October and
November.
Soon after the meeting of June 10, Chmeilak and Brasfield , the two union stewards
at Peerless , began refusing to accept dues payments at the plant from the members,
thus reversing a long-established practice at the plant to the contrary . By this re-
fusal the members were forced either to appear personally at the union hall with their
union dues books and dues or to mail their monthly dues check or money order with
their books to the union office. However, Chmeilak did accept contributions to the
strike fund at the plant from the members and marked such contributions in the sec-
tion of the union book marked "Local or District Lodge Assessments." 8
Some opposition to the payment of these contributions developed among the Peer-
less employees . Employee Cerminn , for instance , informed Chmeilak soon after the
June 10 meeting that he was not going to contribute to the strike fund and he repeated
that statement at a union meeting sometime in July. At that time apparently a mo-
tion was made to subject Cerminn and employee Hoppe, who also was known to be
opposed to the contributions , to "the silent treatment" at the plant because of their
refusal . Although the facts are somewhat confused Chmeilak apparently refused to
allow this motion to come to a vote without union sanction . But he informed the
members that they could make up their minds individually as to what they wanted to
do about it . At this same meeting Chmeilak did take up a contribution of $1 apiece
from enough of the members present to pay the standard donation for Cerminn
and Hoppe . Subsequently Local 113 refused to accept such a contribution so that
Chmeilak had to return the money to the donors. It was well known at the head-
quarters of Local 113 that the members at the Peerless plant were about the only
members where there was not 100 percent support for the contributions.
C. Payments of the individuals
1. Taylor , Hall, and Cantrell
As found heretofore Taylor's dues were fully paid through the month of August
1953 while those of Hall and Cantrell were paid through July 1953. Thus under
the 90-day delinquency rule, Hall and Cantrell would become delinquent on October 1
and Taylor on November 1.
These three men went to and from the plant in the same car pool. They, like
Cerminn , were all opposed to the payment of the requested contributions to the
strike fund. Soon after the meeting of June 10 , Steward Brasfield had asked Cantrell
why he didn't pay the assessment to which Cantrell answered that he guessed that
he was "too bullheaded ." The three men decided to go to the union office on Sep-
tember 28 on their way to work and pay their dues before Hall and Cantrell be-
came delinquent . On September 28 the three of them went to the union office with
cash in hand to pay their dues. They handed their books to the woman cashier
whose duty it was to accept such payment at the union office. Upon looking at the
assessment section of each of these dues books, she remarked upon the fact that
none of them had paid the assessment. She then consulted with an unknown indi-
vidual in the office who in turn called Business Agent Wilke . Wilke spoke with
the men and inquired why they had not paid their assessments . When the men
answered that they considered that the dues were high enough to take care of every-
thing, Wilke answered that he was sorry but that "we can't take the dues." He
then reminded the men that if they did not pay the assessment , they could be forced
out of the Union and lose their jobs under the union -security clause. When asked
if he was refusing to accept their dues , Wilke acknowledged that he was.
The men then left the union office and went to the plant to work at which time
they reported to Steward Brasfield that the Union had refused to accept their dues
8 As this was the only available place in the book for noting the payment of contribu-
tions, the Trial Examiner attaches no significance to the recording such receipts under
the word "Assessments "
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they would not pay the assessment . Brasfield's answer was: "You boys
might just as well pay it. There is no way around it or out of it." At a subse-
quent time, Brasfield informed Hall that the Union "will not take your dues until
you pay the assessment."
Business Agent Wilke denied flatly that he had had any meeting or conversation
at the union office with Hall, Taylor, or Cantrell. He acknowledged that he aver-
aged 20 visitors per day at his office in addition to his conferences at various plants
which he as business agent serviced. Financial Secretary McDole also denied meet-
ing with these three members. It would not be difficult for these 2 busy union
officials to have forgotten a visit from 3 employees.
However, the facts show conclusively that the union officials considered the col-
lection of the donations to be more important than the payment of dues as exem-
plified on March 1, 1954, when employee Cantrell appeared again at the union office
and tendered $15 in part payment of 10 months' delinquency in dues only to have
McDole, through the use what he described as "salesmanship" and "persuasion,"
convince Cantrell to "donate" that $15 to the strike fund and to pay his 10 months'
delinquency later with a promise that he "would not be hard" on Cantrell for the
dues. Obviously the "salesmanship and persuasion" which McDole acknowledged
using was used for the purpose of furthering the policy of Local 113 in securing
donations to the strike fund in preference to collecting even delinquent dues.
McDole's testimony showed that he knew, and approved, the practice of his cashiers
"to make a pitch" to secure donations rather than the payment of dues.
The Trial Examiner is, therefore, convinced that Wilke made the same "pitch" on
September 28 in the case of Hall, Taylor, and Cantrell in an effort to secure "dona-
tions" even at the expense of their dues. The Trial Examiner is further convinced,
and finds, that it was the union policy and practice to secure the payment of dona-
tions to the strike fund rather than to accept dues payment.
From September 28, 1953, until after the discharges of February 10, 1954, none
of these individuals ever again tendered his dues to the Union.
2. Edward C. Salisbury
Salisbury became a union member in February 1953 at which time he paid his
initiation fee and his March dues. When his dues book was delivered to him, it
did not contain a dues payment stamp for the month of March He returned the
book to the Union for correction. It was not returned to him corrected until the
month of June.
In September 1953, Steward Brasfield inquired about his dues. Salisbury an-
swered he would pay 'his dues but would not pay the assessment. Brasfield's an-
swer was: "This assessment is a voluntary assessment or donation. You will have
to pay that." To which Salisbury replied that, if he was not able to pay his dues
without the assessment, then he was not going to pay his dues. In a subsequent
conversation during the month of November 1953, Salisbury told Brasfield that he
would be glad to pay his dues but would not pay the assessment. Brasfield advised
Salisbury that he could not pay dues until he straightened the assessment along with
them .9
Salisbury has since this time made no effort to tender his dues to the Union.'°
3. Joseph Pieha
Pieha was reinstated to membership in Local 113 in February 1953, and paid his
dues through April 1953. In May 1953, Pieha attempted to pay his dues to Steward
Brasfield but Brasfield stated that he "could not take" the dues because the assess-
ment had not been paid and that Pieha would have to go to the union office to
straighten the matter out. On June 22, 1953, Pieha paid his dues for the month
of May to the woman cashier at the union office. She looked at the assessment
section of Pieha's union book and marked the standard payments therein. Pieha
thereupon protested that he had been sick for a couple of weeks. After consulting
some third persons in the office, the cashier thereupon credited Pieha with having
9 These findings are based upon the undenied testimony of Salisbury
10 Under ordinary circumstances the Trial Examiner would not be too much impressed by
testimony that an employee considered it to be a futile gesture to attempt to pay his
union dues. However, in this case, the impossibility of paying dues without also paying the
assessment, is too well documented through written instruments for there to be any doubt
that it was, in fact, a futile gesture to attempt to pay one's dues without also paying the
assessment demanded by the Union.
PEERLESS TOOL AND ENGINEERING CO. 867
paid two of the four donation payments she had previously marked in his dues book
and told him that the next time he paid his dues, he would have to pay the
assessment.
In November 1953, Brasfield approached Pieha about his delinquent dues. Pieha
offered to pay Brasfield the dues owing by him but Brasfield said "it is out of my
hands" and walked away.
Pieha testified that he had heard that other union members at Peerless had been
refused the right to pay their dues without having first paid the donation and felt
that it was futile to make any further tender and so did not then or at any subse-
quent time tender his dues again."
4. James Bellendir
Bellendir became an employee of Peerless in July 1952 and joined the Union in
December of that year. After receiving the union letter of May 18, quoted above,
Bellendir went to the union hall to pay a couple of months ' dues. According to
Bellendir the cashier "sort of pressured" him to donate that money to the strike
fund but Bellendir rejoined with the tale about the heavy hospital expenses he had
just incurred on behalf of his wife. The cashier thereupon consulted some unidenti-
fied individual in the office after which she accepted his money and stamped his
dues book as paid through the month of July.
On October 28, 1953, just prior to the time he would have become delinquent
under the Union's 90-day rule, Bellendir sent the Union his dues book with a money
order in the sum of $4, the exact amount of his monthly dues, for the purpose of
paying his dues for the month of August. On October 29 the Union mailed back
to Bellendir his union dues book and a receipt. Upon receipt the dues book was
without the August dues stamp, but contained a notation in the assessment section
thereof indicating that four assessments of $5 each had been levied on May 22, 29
and June 5 and 12, 1953, together with a credit of $4 on the first of these assess-
ments marked as paid on October 29, 1953. The receipt also enclosed was Union's
receipt No. 11199 dated October 29, 1953, showing a payment of $4 to the Union
and credited to "donation." Marked in pencil on this receipt were the following
two notations: "4 wks. at $5 per wk." and "bal. of $16 due yet."
Early in the month of November Bellendir spoke to Steward Brasfield about the
misapplication of this $4 payment to donations instead of to dues as he had intended
and the Union's failure to place his August dues stamp in the book. Brasfield in-
structed Bellendir to go down to the union office and straighten the matter out.
Bellendir, however, did nothing because he testified he thought it was already too
late as his 90 days had expired and, therefore, he had already been automatically
suspended. Consequently since that date he has not tendered any dues to the Union.
5. Charles J. Cerminn and George Hoppe
The treatment of employees Cerminn and Hoppe by both the Union and the Com-
pany is most material in the determination in the present case.
As found heretofore Cerminn and Hoppe were known to be opponents of the as-
sessments who had publicly stated that they would not pay any assessment.
On August 26, 1953, Hoppe sent the Union a money order in the sum of $8 which
he intended as a payment of dues. Instead he received back from the Union his
dues book and a receipt dated "8-31-53" for the sum of $8 credited to "donation"
over the signature of E. W. McDole.
On September 2, 1953, Hoppe sent the Union the following letter:
DEAR SIR: I have just received my dues book and find you have made an
error. I sent a money order made out specifically to pay for my dues, and have
received a receipt for a donation. I am sending back this error and want it
corrected, to be marked paid for the month of July. Will you kindly adjust this
error.
Respectfully yours,
( Signed ) GEORGE HOPPE.
On September 14, 1953, Cerminn sent Local 113 his check in the sum of $7
clearly marked "bal dues-July 1953. Dues for Aug. 1953." On this occasion Cer-
minn requested the Union to send him the dues stamps so that he could place them
11 See the previous footnote herein for the Trial Examiner 's opinions in regard to this
question
344056-55-vol 111-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his union book. The check was promptly returned to Cerminn with a request that
he send in his dues book because the dues stamps had to be placed in the book and
cancelled by the proper union official.
Soon after this check had been returned, Cerminn and Hoppe presented their
mutual problems to Personnel Manager Fridlund and Plant Superintendent McEvilly
to whom they expressed their willingness to pay dues but their unwillingness to pay
the assessment and further expressed fear that the Union would attempt to secure
their discharge. They also told of their fear that the Union might retain their union
book so that they would be unable to prove their payment of dues. Fridlund stated
that the Company could not under the law and would not discharge any employee
for his failure to pay any assessment and that , so long as the employees could prove
that he had tendered his dues to the Union, the employee did not need to fear being
discharged. These management officials advised the employees to forward their
dues payments by check or money order clearly marked for dues for a specific month
so that they would have proof of tender or payment of their dues regardless of what
might happen to their union books.
In accordance with the advice Hoppe sent a money order in the sum of $8 with
his union book to the Union in a registered, return receipt requested, letter on Sep-
tember 29. This undated letter from Hoppe to the Union was as follows:
DEAR SIR: Enclosed is my dues book and money order to pay for my dues. I
want this to be stamped paid for the month of August. The last time you
deliberately applied my dues toward a donation.
Will you kindly see that this error is corrected and applied towards my July
dues.
The money order you received at that time stated it was for my July dues.
(Signed) GEORGE F. HOPPE.
On October 28, 1952, Hoppe again sent by registered mail, return receipt re-
quested, a money order in the sum of $6 together with the following letter:
DEAR SIR. On Sept. 30, 1953, you received my dues book, with a payment
for my August dues. I had also sent a self addressed envelope.
At the present time I have not received my book.
Enclosed is a money order for my Sept. dues. Will you kindly enter this in
my book and please forward the book.
(Signed ) GEORGE F. HOPPE.12
Since that date Hoppe has neither received his dues book nor answer from the
Union. Although on some undisclosed date the Union corrected the error referred
to above, Hoppe was never notified thereof prior to the hearing herein.
Also following this advice from company officials, Cerminn returned his afore-
mentioned September 14, 1953, check to the Union about September 23, 1953, along
with his union dues book as requested by the Union. Since that time the book has
never been returned to Cerminn nor has he received any communication, written
or oral, from the Union. However, Cerminn continued to send in his monthly
-dues checks thereafter, which checks were dated November 12, 1953; December 26,
1953; January 18, 1954; February 9, 1954; and February 12, 1954" Each of these
checks was marked for payment of his dues for a specified month . None of these
aforementioned checks was deposited for collection by the Union until April 7,
1954, when they were all finally put through the bank and thereafter in due course
were returned to Cerminn with his monthly bank statement.
On April 15, 1954, Cerminn sent another check marked "dues for Feb. 1954 only"
to the Union. This check was cleared at the bank on May 5, 1954. Cerminn's dues
book had not been returned or replaced at the time of the hearing.
Financial Secretary McDole of the Union attempted to explain the difficulties of
Cerminn and Hoppe as due in large measure to an inadequately sized office staff for
the amount of work it had to handle, to the fact that the Union had moved its head-
quarters and, with particular reference to the Cerminn checks, to the fact that he,
McDole, was waiting for "receipts to clear ." None of these attempted explanations
are at all convincing to explain a 6-month delay . McDole also explained the failure
to issue new dues books to these members was due to the fact that they had not
"asked" him for new books, a singularly unconvincing explanation in view of the
letter of Hoppe and Cerminn 's many oral requests therefor made to Steward
12 This letter was dated 9-27-53 but was obviously intended to refer to the month of
October
13 This last check was marked "dues for Dec. 1953" while the check of 3 days pie-
viously was marked for dues for January 1954.
PEERLESS TOOL AND ENGINEERING CO. 869
+Chmeilak together with Chmeilak's and Brasfield 's numerous statements that the
members had to have their books in order to show that they were members in good
standing in order to have grievances processed or to secure jobs in other plants in the
area as well as remarks that they, the stewards , doubted if the books would ever be
found . There is, in the opinion of the Trial Examiner , no doubt that these books
were "lost" and the remarks made in an effort to coerce these members into making
donations to the union fund and the Trial Examiner so finds.
D. The discharges
As found heretofore by registered letter on February 8, 1954 , the Union requested
the Respondent to discharge Bellendir, Cantrell , Hall, Taylor , Pieha, and Salisbury
because "the following people have become delinquent in their dues to this organi-
zation."
On February 8, the date of the receipt of this letter, Personnel Manager Fridlund
approached Hall, Taylor, and Cantrell in the plant, read .them the letter from the
Union , and informed them that they would be discharged as of the end of work on
February 10. Hall spoke up and told Fridlund that the three of them had tried to pay
their dues but that the Union would not accept the dues. Fndlund himself testified
that he then advised these employees , as well as the others discharged at this time,
that "my hands are tied , and the only alternative [to discharge ] was to produce some
evidence of the fact that they had paid their dues." 14 On that same evening these
employees also informed Foreman Krueger of their vain efforts to pay their dues to
the Union.
On February 8, 1954, Fridlund also notified employees Salisbury , Pieha, and Bel-
lendir individually in the same manner as he had the three employees mentioned
above . Salisbury informed Fridlund that he wanted to do the right thing but did not
feel that the assessment was right and further that he had offered and was willing
to pay the dues but would not pay the assessment . Pieha in his turn also told Frid-
lund that he would pay the dues but would not pay the assessment . Bellendir ap-
parently took his notification in complete silence
At the end of work on February 10 each of these employees except Cantrell was
discharged and have never since been reemployed by the Company.
A few minutes after the announcement to the three employees on February 8,
Fridlund appeared at Cantrell 's machine and told Cantrell "to go get straightened
with the Union ; that they [ the Respondent ] wanted to keep " Cantrell because he was
the only man in the plant with experience on a certain operation on a job which was
then going through the plant.
That same week Cantrell again attempted to pay his union dues at the union hall
without paying his assessment and was again told that the Union refused to accept
dues without the payment of the assessment . The following Friday Cantrell inquired
of Foreman Krueger why he had not received his separation check. Krueger con-
sulted with Fridlund and then reported back to Cantrell that Fridlund had said that,
if Cantrell did not get straightened out with the Union , he, Cantrell , would not get
the raise which was due him and that he "would have to go."
On March 1, 1954 , Cantrell again went to the union office and told the cashier
that he wanted to pay his dues and that , if the Union would accept his dues, he would
contribute $5 per week toward the assessment . McDole instructed Cantrell at this
time : "No, pay the assessment and pay your dues as well as you can . I won't be
hard on you." Recalling that his fellow unionist Hall had already been unemployed
ever since his discharge , Cantrell assented to the application of his $ 15 payment to
the donation which was then marked as paid in his dues book . On March 3, 2 days
later, Cantrell paid $30 in dues which paid his delinquency and his dues through
the month of April 1954.
Cantrell immediately reported having made these payments to Fridlund who an-
swered , "Well, good" and thereafter to Krueger who said: "You shouldn't have any
trouble getting your raise ." Two weeks thereafter Respondent Company did in fact
14 Fridlund 's testimony coincided with that of the witnesses for the General Counsel
almost exactly except for the fact that Fridlund did not "recall" having had the employees
tell him of their vain efforts to pay their dues to the Union. Unless these employees had
made reference to the Union 's refusal to accept dues payments without the assessment,
Fridlund 's final statement becomes meaningless . The Trial Examiner , therefore , finds that
Fridlund was informed at this time of the fruitless efforts made by the employees to pay
their dues In addition Fridlund acknowledged that he knew from conversations with
Cerminn and Hoppe about the trouble over the payment of the assessment and that "there
was a little dissension" in the plant about the assessment.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
give Cantrell the raise which he had considered to be due him under the contract on
February 1, 1954.
At the hearing the Company contended that under the agreement Cantrell had
not qualified for the wage increase prior to March 15 because of a change in his work
assignment. However it is clear from the undenied statements of both Fridlund
and Krueger to Cantrell that the Company made no such explanation to him but, in
fact, deliberately tied the wage increase to Cantrell's "getting straightened out" with
the Union, i. e. paying the dues and assessments.
E. Conclusions
1. As to the Union
Section 8 (b) (2) makes it an unfair labor practice for a labor organization:
To cause or attempt to cause an employer to discriminate against any employee
in violation of subsection (a) (3) or to discriminate against an employee with
respect to whom membership in such organization has been denied or terminated
on some ground other than his failure to tender the periodic dues and initiation
fees uniformly required as a condition of . . . retaining membership.
The Union's letter of February 8 stated specifically that it was requesting the dis-
charge of the individual employees here involved because they had "become delin-
quent in their dues to this organization." A check of the dues payments of each of
the individuals named shows that none of them had paid his dues within the 90-day
period prior to the date of this request so that, under the union constitution, tech-
nically each was delinquent in the payment of "the periodic dues uniformly required,"
and, therefore, subject to discharge at the request of the Union under the Union's
security clause of the contract then existing between the Company and the Union.is
Taken at face value, such delinquency in conjunction with the union-security clause
of the existing contract made it perfectly legal under the Act for the Union to request
the discharge of the delinquents and for the Employer to comply with such request.
But in view of other evidence adduced here, are we or was the Company entitled -
to accept the Union's letter of February 8 at tace value'? 16
The evidence produced and the facts found therefrom above prove that each of
these individuals had on at least one occasion tendered his monthly and uniformly
required dues to the Union and either had the Union refuse to accept the same or
else erroneously apply the money tendered as dues to a "donation" to the strike
fund.17 The facts adduced here also prove beyond a peradventure of a doubt that
contributions to the strike fund, while technically not qualifying as an "assessment"
under the constitution of the Union, were in fact treated as such by the Union. Fi-
nancial Secretary McDole and his assistants made the payment of these "voluntary
donations" to the strike fund a condition precedent to the acceptance of the uniformly
required monthly dues by the Union His description of his efforts to secure such
donations as "persuasion," "salesmanship," or "making a pitch" is shown by the facts
to have been an understatement of no mean proportions. Steward Chmeilak's and
Brasfield's oft repeated statements to the effect that the Union would not accept dues
without the payment of the donation or assessment and that there was no way around
making such donations expressed in words the union policy as exemplified by its
acts Witness McDole's exposition of "salesmanship" in persuading Cantrell to
agree to make a $15 donation in preference to applying to that money as part
payment toward his 6 or 7 months' delinquency in dues payments. After noting
that his fellow employee and unionist Hall had remained unemployed ever since the
Union had secured his discharge for refusing to contribute "voluntarily" to the strike
fund Cantrell was quite easily persuaded by McDole's "pitch." Those having con-
trol over one's means of livelihood, whether they be employer or labor organization,
have most persuasive weapons. It is to be recalled that there was considerable un-
employment in the Chicago area at that time.
The facts show, and the Trial Examiner has no hesitancy in finding, that the Union
made the payment of donations to the strike fund an assessment in fact and a condi-
tion precedent to the acceptance of a member's dues payments.
11 The General Counsel concludes the legality of this contract
19 The second part of this question will be answered in the following section of this
report
14 At this point the Trial Examiner would like to comment that, absent the experiences
of othei s and the documentary proof submitted here, he would be forced to view the testi-
mony of Bellendir and Pieha at least with considerable skepticism The efforts of a few
of the individuals involved here to pay their monthly dues verged upon the minimal.
PEERLESS TOOL AND ENGINEERING CO. 871
The facts further prove that the Union refused to accept dues payments from
the individuals here involved without their making payments of donations to the
strike fund. Without such a donation, a member was unable to keep his dues paid
up and thus remain a member in good standing and, therefore, not subject to dis-
charge under the existing union-security clause of the contract. The numerous at-
tempts to pay dues without payment of the assessments had universally proved futile.
Only two employees unnamed in the Union's letter who allegedly refused to donate
(Messina and Barnes) were not included in the Union's request of February S.
However, there is no showing in this record as to how, or whether, these two man-
aged to pay their dues without paying an assessment. Thus these two examples do
not disprove the universality of the Union's refusal to accept dues without a donation.
Thus it was the refusal of the individuals here to donate to the strike fund-not their
unwillingness or failure to tender the uniform dues-which caused the Union to re-
quest their discharge, regardless of the terminology used in the letter of February
8 even though that terminology might be said to have been technically correct under
the circumstances. The dues became delinquent because the Union refused to accept
them, a refusal caused because the employees would not make strike fund donations.
The Act is specific, and the law is now well-settled, that the, words "dues and initia-
tion fees uniformly required" do not include assessments, fines, penalties, or any-
thing except dues and initiation fees. Hence the Union's causing the discharge of
Hall, Taylor, Salisbury, Pieha, and Bellendir for their failure to pay the donations or
assessments to the strike fund is not protected by the Act but, on the contrary, is spe-
cifically prohibited thereby.
Only one question remains: Were these individuals required to make monthly ten-
der of their dues to the Union in order not to be considered delinquent? The facts
make it clear that such monthly tender would have been as futile as the original ten-
der. The law does not require the doing of futile acts. As the Union was required
to accept the payment of monthly dues without strings attached-at least as far as
the Act is concerned-it would seem that, at least until the union policy of making
the payment of donations a condition precedent to the acceptance of dues payments
had been changed, a single tender of monthly dues would be sufficient.
Therefore, the Trial Examiner finds that Respondent Union attempted to and
did cause the Respondent Company discriminatorily to discharge employees Bellendir,
Hall, Taylor, Pieha, and Salisbury on February 10, 1954, because each of said em-
ployees failed and refused to pay assessments to Respondent Union in violation of
Section 8 (b) (2) of the Act.
The Trial Examiner also finds that Respondent Union violated Section 8 (b) (1) (A)
by threats to refuse to process grievances on behalf of members who had failed to pay
donations to the strike fund and by threatening to cause the discharge of such
individuals.
The Trial Examiner is making no finding of Section 8 (b) (1) (A) violation because
of the Union's misapplication of certain money tendered to it for dues into donations
to the strke_fund-because of the fact that, while such errors would tend to show the
union policy, it cannot be said in such a busy office that such errors were not honest
mistakes, and, therefore, it will be recommended that this portion of the complaint
against the Respondent Union be dismissed.
2. As to Company
The liability of the Respondent Company, if any, rests upon other grounds for
it cannot necessarily be expected to know that the Union' s real reason for demand-
ing the discharge of the individual employees here was due to their failure to con-
tribute to the strike fund rather than the delinquency in dues as stated in its letter of
February 8.
Section 8 (a) (3) of the Act makes it an unfair labor practice for an employer
to discriminate against an employee in the tenure of his employment in order to en-
courage membership in a labor organization and legalizes union-security provisions
such as were in effect here and then reads as follows:
Provided further that no employer shall justify any discrimination against an
employee for nonmembership in a labor organization . if he has reasonable
grounds for believing that membership was . . . terminated for reasons other
than the failure of the employee to tender the periodic dues and the initiation
fees uniformly required as a condition of . . . retaining membership.
Beginning as early as September 23, 1953, Personnel Manager Fridlund was in-
formed that the Union was refusing to accept the payment of dues without the pay-
ment of a contribution to the strike fund. At that time Fridlund correctly stated the
law when he told Cerminn and Hoppe that the Company could not legally discharge
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee for failure to pay the assessments but only for his failure to pay the
monthly dues. Fridlund and Superintendent McEvilly advised these employees on
methods as to how they could prove their tender of the periodic dues so as to prevent
the Union from securing their discharge . Obviously the Company was clearly ad-
vised of the facts which would give rise to "reasonable grounds for believing that
membership was . terminated for reasons other than the failure of the employee
to tender the periodic dues" etc.
In addition to further advice on that same subject from Cerminn and Hoppe in
January 1954, Fridlund admitted knowing that there was "some dissension" over the
payment of this assessment among the other employees in the plant.
Again on February 8 when Fridlund personally notified the individuals involved
of the Union's request and of their discharge as of February 10, he was informed by
each of the employees , except Bellendir, that the employee had attempted in vain to
pay his dues and of his willingness to pay the same. Foreman Kruege was similarly
notified that same evening by a number of these employees . Although Fridlund
denied such notification , the Trial Examiner is unable to credit his denial in this re-
spect for Fridlund's own testimony showing that he ended his conversation with words
to the effect that his hands were tied becomes wholly meaningless in the absence of
some statement by the employees that they had attempted to pay their dues.18 Fur-
ther on this same question it is significant that Fridlund testified that he asked the men
for proof that they had paid their dues and were "straight" with the Union. Actu-
ally payment is not required by the Act-only tender of payment . The statements
of the employees at the time of their notification of discharge was sufficient to prove
that tender.
Having complete knowledge of the anticipated and actual trouble Cerminn and
Hoppe were having with the Union over their failure to pay the donation , it would
seem that the remarks made by these employees to both Fridlund and Krueger should
be sufficient to cause the hypothetical "reasonable man" to have "reasonable grounds
for believing that membership was being terminated for reasons other than the failure
of the employees to tender the periodic dues" etc.
It is further significant that, while Fridlund's only answer to the statements by
the employees regarding their vain attempts to pay their dues was that his hands
were tied , still he did have sufficient doubts raised in his own mind as to cause him
to inquire thereafter of Business Agent Wilke about the alleged nonpayment of dues
by these employees. This confirms the finding the Trial Examiner made in the previ-
ous paragraph and leads to the conclusion that Fridlund himself had "reasonable
doubts" about the alleged nonpayment of dues. An employer may not deliberately
blind himself from his reasonable doubts and then rely upon the proviso of Section 8
( a) (3) of the Act to protect himself from his discriminatory actions.
The Trial Examiner, therefore , finds that the Respondent Company, by discharg-
ing employees Hall, Taylor, Pieha, Salisbury , and Bellendir at the request of the
Union , discriminated in regard to the tenure of employment of these employees in
order to encourage membership in the Union in violation of Section 8 (a) (3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in con-
nection with the operations of Respondent Company described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent Company and Respondent Union have en-
gaged in certain unfair labor practices . It will be recommended that they cease and
desist therefrom , and take certain affirmative action to effectuate the policies of the Act.
It has been found that the Respondent Union caused Respondent Company to
discriminate in regard to the tenure of employment of Lowell Hall, Marlin Taylor,
Joseph Pieha , Edward Salisbury, and James Bellendir by discharging them on Feb-
ruary 10, 1954. It will be recommended that Respondent Company offer , with Re-
spondent Union's consent and approval, each of these employees immediate reinstate-
ment and that Respondents, jointly and severally, make said employees , and each
of them , whole for any loss of pay suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that which he would normally
Other than this one lapse of memory the Trial Examiner found Fridlund to be a very
honest witness.
PEERLESS TOOL AND ENGINEERING CO . 873
have earned from the date of the discrimination to the date of his reinstatement, less
his net earnings during said period. Back pay shall be computed in the manner con-
sistent with the policy established by the Board in F. W. Woolworth Company, 90
NLRB 289.
The unfair labor practices found to have been engaged in by the Respondents are
of such character and scope that, in order to insure employees of the full rights guar-
anteed by the Act, it will be recommended that the Respondents, and each of them,
cease and desist from in any manner restraining , or coercing employees in the exer-
cise of their rights under the Act.
On 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. Peerless Tool and Engineering Co. is an employer within the meaning of Sec-
tion 2 (2) of the Act.
2. Die and Tool Makers Lodge No. 113, International Association of Machinists,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
3. By causing Respondent Company to discriminate in regard to the tenure of em-
ployment of Lowell Hall, Marlin Taylor, Joseph Pieha, Edward Salisbury, and James
Bellendir in violation of Section 8 (a) (3) of the Act, the Respondent labor organ-
ization has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (2) of the Act, and by restraining and coercing employees in the
exercise of rights guaranteed by the Act the said Respondent Union has also engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1)
(A) of the Act.
4. By discharging the aforementioned employees on February 10, 1954, at the
request of Respondent Union and in order to encourage union membership, Re-
spondent Company has engaged in unfair labor practices within the meaning of Sec-
tion 8 (a) (3) of the Act , and by interfering with , restraining , and coercing its em-
ployees in the exercise of the rights guaranteed by the Act, said Respondent Com-
pany has also engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) 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.]
Appendix A
NOTICE TO ALL MEMBERS OF DIE AND TOOL MAKERS LODGE No. 113, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board , and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Peerless Tool and Engineering Co.
or any other employer to discriminate in any manner against employees in vio-
lation of Section 8 (a) (3).
WE WILL accept the payment of dues from members without requiring that
they also pay a donation to the strike fund.
WE WILL NOT in any manner restrain or coerce employees of the above-
named or any other employer in the exercise of rights under Section 7 of the
Act.
WE WILL make Lowell Hall, Marlin Taylor, Joseph Pieha, Edward Salisbury,
and James Bellendir whole for the discrimination caused against them.
WE HAVE withdrawn our request for the discharge of the aforementioned in-
dividuals'and have notified Peerless Tool and Engineering Co. that we have no
objection to their reemployment.
DIE AND TOOL MAKERS LODGE No. 113,
INTERNATIONAL ASSOCIATION OF MA-
CHINISTS, 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.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL offer Lowell Hall, Marlin Taylor, Joseph Pieha, Edward Salisbury,
and James Bellendir each immediate reinstatement to his former or substan-
tially equivalent position without prejudice to any seniority or other rights and
privileges previously enjoyed and will make him whole for any loss of pay suf-
fered as the result of the discrimination against him.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization , to form labor organizations,
join or assist Die and Tool Makers Lodge No. 113, International Association
of Machinists, AFL, or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted ac-
tivity for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of the Act.
PEERLESS TOOL AND ENGINEERING CO.,
Employer.
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.
RADIO STATION KHQ AND KHQ-TV, PETITIONER and AMERIOAN FED-
ERATION OF TELEVISION AND RADIO ARTISTS (AFL). Case No. 19-
RM-142. March 7, 1955
Decision and Order Amending Certification
On July 28, 1954, pursuant to stipulation for certification upon con-
sent election, and an election held on July 20, 1954, the Board issued
a certification of representatives in the above-entitled proceeding in
which American Federation of Television and Radio Artists (AFL),
herein called AFTRA, was certified as the exclusive bargaining repre-
sentative in an appropriate unit of certain employees of the Employer.
Thereafter, on December 3, 1954, AFTRA filed "Motion To Show
Cause Why The Unit As Certified Should Not Be Amended To De-
scribe More Specifically Services Performed By Staff Announcers."
On December 31, 1954, the Employer filed a statement of position in
response to said motion. On January 12, 1955, Local 77, International
Brotherhood of Electrical Workers, A. F. of L., herein called the
IBEW, filed a motion to intervene herein and a statement opposing
the motion to amend filed by AFTRA, insofar as it "seeks to include
within that unit combination announcer-technicians, commonly re-
ferred to as `combo men' producer-directors and floor men."
On February 1, 1955, the Board granted the IBEW's motion to in-
tervene, and issued notice to show cause "why, pursuant to AFTRA's
111 NLRB No. 146.