Pressed Steel Car Co., Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1950

89 N.L.R.B. 276 (N.L.R.B. 1950)

In the Matter Of PRESSED STEEL CAR COMPANY, INC. and NOAH
WEINSTEIN
In the Matter of UNITED STEELWORKERS OF AMERICA, LOCAL UNION .
1844, CIO and NOAH WEINSTEIN
Cases Nos. 6-CA-125 and 6-CB-34.Decided April 11, 1950
DECISION
AND
ORDER
On November 7, 1949, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents, and each of them; had engaged in and were en-
gaging in certain unfair labor practices, and recommending that they
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 as alleged in the
complaint, and recommended that these particular allegations in the
complaint be dismissed. Thereafter, each of the Respondents and the
General Counsel filed exceptions to the Intermediate Report and briefs
in support thereof. The Respondent Union also requested oral argu-
liieht. - This request is denied as the record and briefs, in our opinion,
adequately present the issues and positions of the parties'
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings'are hereby'affirmed. The Board has considered the Intermediate
Report, the briefs and exceptions, and the entire record in the case,
and hereby adopts the findings and conclusions of the Trial Examiner
only to the extent consistent with this Decision and Order.
The Trial Examiner found that at all times pertinent herein the
contract between the Respondent Union and the Respondent Company
1 Pursuant to Section 203.33 (b) of the National Labor Relations Board Rules and Regu-
lations these cases were consolidated by order of the Regional Director for the Sixth
Region (Pittsburgh, Pennsylvania) on September 9, 1949.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act; the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman Herzog and Members Houston and Murdock].
39 NLRB No. 36. -
276
PRESSED' STEEL CAR COMPANY, INC. 277
lawfully required maintenance of membership in the Respondent
Union as a condition of employment. The Trial Examiner further
found that Noah Weinstein was a member in good standing of the
Respondent Union on October 29, 1949, and that his discharge on
this date was not required by the contract and therefore not protected
by the proviso to Section 8 (a) (3). He therefore concluded that the-
Respondent Union violated Section 8 (b) (2) by causing's and that.
the Respondent Company violated Section 8 (a) (3) and (1) by
effectuating, the above discharge. We disagree with the Trial Ex-
aminer's finding that Weinstein was, at the time of his discharge, a.
member in good standing of the Respondent Union. Accordingly, we.
disagree with his conclusion that the Respondents violated the Act as.
above set forth.
The Respondent Union required that a member, to maintain his.
membership in good standing, must not be more than 3 months in
arrears in the payment of his monthly dues.4 However, any member-
working less than 5 days in any month was entitled to exoneration
from the payment of his dues for that month. Weinstein was laid-
off by the Respondent Company on June 4, 1948, and recalled to work-
on October 29, 1948. During the layoff period,. Weinstein did not.
pay any dues to the Respondent Union; he did not, so far as the record.
discloses, work anywhere else; and he did not seek exoneration from
the payment of dues for any month during this period. Clearly
Weinstein was not a member in good standing on October 29, 1948,
unless he was exonerated from the payment of dues during the layoff'
period. The Trial Examiner found that he was so exonerated. We
disagree with this finding.
There were, two established methods for union members to pay-
their dues: (1) by payroll deduction; and (2) by payment in cash..
No action was necessary on the part of those members whose dues.'
were deducted from the payroll in order to obtain exoneration from.
the payment of dues in any month in which they 'worked less than
5 days; the Respondent Union determined and granted exoneration
for these members when it received the monthly -dues report from.
the Respondent Company. Members paying dues by cash, however,.
8 The Trial Examiner found that the Respondent Union's action in requesting . the Re-
spondent Company , to discharge Weinstein , although a violation of Section 8 (b) (2) of
the Act, was not a violation of Section 8 (b) (1) (A). The General Counsel excepted to this
finding . As we are dismissing the complaints in their entirety , we do not pass , upon the.
correctness of this finding.
• Article XI , Sec. 3 of the Union's constitution provides , in part, that "A member shall'
be in good standing if he is not more than three months in arrears in any of his constitu--
tional obligations . . . And Sec . 4 provides as follows :
Members who lose good standing shall stand automatically expelled and shall not'
be reinstated in good standing except upon such terms as the Local Union and the-
International Executive Board may decide.
278 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
were required to take several steps before they were exonerated from
the payment of any dues. They had to secure a request form, fill
it out, and leave it with the Respondent Union. If, following an
investigation, the Union deemed the applicant to be entitled to ex-
oneration for that month, it issued an exoneration stamp to be placed
in his monthly dues card.
At the time of Weinstein's layoff on June 4, 1948, union dues were
deducted by the Respondent Company pursuant to the terms of the
existing contract. Because of the limitations contained in Section
.302 (f)'of the amended Act, the Respondent Company, after June 30,
1948, deducted the dues from only those members who submitted
signed cards authorizing dues checkoff. Accordingly, on and after
June 30, 1948, those union members who failed to submit checkoff
authorization cards assumed the status of members paying dues by
cash and, if they desired exoneration, were subject to the exoneration
procedure for cash paying members. Weinstein was one of these latter
members.
.
The Trial Examiner, in finding that Weinstein was exonerated from
the payment of dues during the layoff period despite his failure.to
:seek or obtain exoneration, took cognizance of the established pro-
cedure outlined above, but concluded that during the summer months
.of 1948, when there were many mass layoffs,5 the Union's officers were
aware of the mass layoffs and no requests. for exoneration from the
laid-off members, including Weinstein, was required. We believe that
the evidence compels a contrary finding .6 It is true that the Respond-
ent Union did not adhere strictly to the above-described procedure dur-
ing the mass layoffs by the Respondent Company in 1948; however, the
o The Respondent Company laid off 183 employees in June, 57 in July, 343 In August,
and 70 in September 1948. It normally employs about 2,500 employees.
9 The only witness to testify as to the-procedure followed by the Respondent Union during
the period of the mass layoffs was McGraw, the union secretary. He testified, in part,
as follows :
Q.• Is it true that employees laid off around tile months of June, , Ji ly. and August
did not make exoneration requests and were automatically exonerated by you?
A. No, I didn't grant no man no [.sic] automatic exoneration.
Q. Is It true , then, that those employees laid off during those months who did not
sign requests for exoneration were exonerated by you?
A. They were not exonerated until they made a personal appeal for exoneration.
o a a a a a a
Q. What do you mean by that answer?
A. A personal appeal for exoneration . I could not and do not have the right to
exonerate a man automatically.
Q. You mean by a personal 'appeal, the signing of these, Union's exhibit No. 4
[request form for exoneration]:
A. Of 'that, or similar.
Q. Is it your testimony , then, that everyone you exonerated signed this.
A. No.
Q. Is it true , Mr. McGraw, that some people whom you exonerated did not sign
anything?
. A. Some people did not sign ; they made their request verbally and I asked them
the reasons ; they stated them to me.
PRESSED STEEL-CAR COMPANY,- INC. 279
record also 'shows that some request for exoneration, either oral or
written, by the member seeking exoneration, was nevertheless re-
quired.7
As Weinstein made no such request, we find, contrary to our dis-
senting colleab le, that he was not exonerated from the payment of
dues for the 4 months that he was laid off and that he was not, as re-
quired by the contract, a member in good standing. Accordingly, the
Respondent Union could have lawfully demanded Weinstein's dis-
charge under such circumstances. It is true, as our dissenting col-
league points out, that the Respondent Union requested Weinstein
either to sign a checkoff card or to agree to pay his dues in cash.
However, as we view the situation, the Respondent Union was thereby
merely affording Weinstein an opportunity to be restored to good
standing in the Union. In view of Weinstein's rejection of this oppor-
tunity to maintain his union membership by the payment of future
dues, the Respondent Union may not be held to have abandoned its
lawful right to demand his discharge for past delinquencies under the
contract. Upon all the facts, therefore, we conclude that the Re-
spondent Union caused, and the Respondent Company effectuated,
the discharge of Weinstein because he was not a member in good
standing in the Union as required by the contract. Accordingly, we
shall dismiss the complaints in both cases in their entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (e)
of the National Labor Relations Act, as amended, the National Labor
Relation Board hereby orders that the complaints against Pressed
Steel Car Company, Inc., and against United Steelworkers of America,
Local Union 1844, CIO, and each of them, be, and they hereby are,
dismissed.
MEMBER MURDOCK , dissenting :
I would affirm the Trial Examiner's finding that Weinstein was a
member in good standing of the Union on October 29, 1949; that his
discharge on this date was therefore not required by the contract and
hence was not protected by the proviso to Section 8 (3) ; and that
the Respondent Union accordingly violated Section 8 (b) (2) by caus-
ing, and the Respondent Company violated Section 8 (a) (3) by mak-
ing, the discharge.
-° The General Counsel called several rebuttal witnesses who testified that they had never
sought exoneration for layoff time. However , cross-examination of these witnesses revealed
either that they had signed checkoff authorization cards , or that the checkoff provisions of
the contract were in effect during the entire period of their layoffs . ( One witness could not
remember whether. he had signed a checkoff card or not .) Accordingly , there was no
occasion for these witnesses to seek exoneration.
280 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
My colleagues find that Weinstein was not a member of the Union.
in good standing on the date of his discharge, because he was 3 months
in arrears in the payment of dues. The conclusion that he was in
..arrears stems from their finding that he had not been exonerated from
the payment of dues during his layoff because he had failed to apply
.formally for the exoneration from dues which the union constitution
-.provided during such periods. In my view, the record establishes
that the Union considered Weinstein as exonerated from payment of
dues during his layoff despite his failure to make formal application,
and that Weinstein, accordingly, was not in arrears but was in good
standing on the date of his discharge.
The majority opinion emphasizes the formal procedure which had
been set up as a modus operandi for administering the exoneration
provision of the union constitution, under which written forms of re-
quest for exoneration were provided for the purpose of facilitating
a determination of whether the applicant was entitled to the benefit
of the constitutional provision. However, I believe that the Trial
Examiner correctly found that the Union did not show a uniform
practice of exonerating members only upon such an application.
Thus, Mr. McGraw, the Union's secretary, testified :
Q. Is it your testimony, then, that everyone you exonerated
signed this? [referring to the form]
A. No.
Q. Is it true Mr. McGraw, that some people whom you ex-
onerated did not sign anything?
A. Some people did not sign; they made their request verbally
-and I asked them the reasons ; they stated them to me.
Weinstein was one of several hundred employees involved in mass
layoffs made in the summer of 1948, of which the Union would plainly
have been cognizant. This was not the type of situation -where a
single employee is laid off and knowledge of the layoff and the en-
titlement to dues exoneration might not be in the possession of the
Union unless the individual brought it to the Union's attention by
specific oral or written request for exoneration. The Union's whole
course of conduct in relation to Weinstein convincingly establishes
that it did not regard Weinstein as being in arrears for nonpayment.
of dues during the period of layoff, but treated him as exonerated
(as he was entitled to be) despite the fact that he had made no specific
oral or written application. Nothing was said in any of the inter-
views Weinstein had with either union or company officials, concern-
ing his being in arrears in his dues payments. When Weinstein was
rpproached by union officials after being recalled to work on October
PRESSED STEEL . CAR COMPANY , INC. 281
20, 1948, he was merely asked either to (1) sign a card authorizing
i checkoff of union dues or, in the alternative , ( 2) to agree to pay
his dues by cash. As the Trial Examiner points out , the alternative
courses proposed to him were prospective only, and not a word was
said to him about being in arrears on his dues or any request made
to pay past dues. Plainly, if the union officials considered that Wein-
stein was 3 months in arrears and had therefore ceased to be a member
in good standing , because of his failure formally to request an exon-
eration from dues payments during the period of his layoff, they
would not have asked him to sign a checkoff card which could oper-
ate only for the payment of current and future dues, and have re-
mained silent about past dues. Furthermore , when the Union
requested Respondent 's superintendent to discharge Weinstein, it
asked him to do so not on the ground that Weinstein was in arrears
in his dues and therefore not in good standing, but instead on the
ground that he refused to agree to one of the alternatives presented
to him-to sign a checkoff authorization or to agree to pay dues by
cash.
My. majority colleagues wholly ignore the Trial Examiner 's find-
ing, which I believe is unassailable on the record before us-that had
Weinstein agreed to sign a checkoff authorization or to pay current
and future dues in cash , no request for his discharge would have been
.made; that the discharge was requested and made not because he was
considered in arrears in his dues , but solely because he refused either
to sign a checkoff card or to agree to pay current and future dues
in cash. A refusal to comply with such requests would not automat-
ically deprive Weinstein of his membership in good standing. He
would remain in good standing under the union constitution until he
had been in arrears in the payment of his current dues for a period of
3 months. Accordingly , the Union acted unlawfully in causing, and
the Employer likewise in making , the discharge while Weinstein was
still a member in good standing of the Union.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Emil E. Narick , Esq., Pittsburgh , Pa., for the General Counsel.
Messrs. Thorp , Bostwick , Reed and Armstrong , by Charles C. Hewitt, Esq.,
Pittsburgh , Pa., for the Respondent Company.
Philip M. Curran , Esq., Pittsburgh, Pa., for the Respondent Union:
STATEMENT OF THE CASE
Upon charges duly filed by Noah Weinstein, an individual, the General Counsel
of the National Labor Relations Board ,' by the Regional Director of the Sixth
1 The General Counsel and his representative at the hearing are called herein the General
Counsel ; the National Labor Relations Board is called the Board.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region (Pittsburgh, Pennsylvania), issued his complaint dated September 9,
1949, against Pressed Steel Car Company, Inc., Pittsburgh, Pennsylvania, herein
called the Company or the Respondent Company, and United Steelworkers of
America, Local Union 1844, CIO, called herein the Union or the Respondent
Union, alleging that the Respondent Company and the Respondent Union had
engaged in and were engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (3) and Section 8 (b) (1) and (2), re-
spectively, and Section 2 (6) and (7.) of the National Labor Relations Act, 49
Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat.
136, herein called the Act or the amended Act. Copies of the charge and the
complaint, together with notice of hearing, were duly served upon the parties.
With respect to unfair labor practices, the complaint alleged in substance that
the Respondent Union violated Section 8 (b) (1) and (2) of the Act by re-
questing and demanding of the Respondent Company the discharge of Noah
Weinstein because allegedly he had ceased to be a member in good standing in
the Union although, in fact, he was a member in good standing ; and that the
Respondent Company by acquiescing in the Union's demand violated Section 8 (a)
(1) and (3) of the Act.
In its duly filed answer, the Respondent Company admitted that it acquiesced
in the Union's demand to discharge Noah Weinstein, but denied that Weinstein
was at the time of his discharge, or any time thereafter, a member of the Union
in good standing, and averred that the discharge was pursuant to the terms of a
collective bargaining agreement between it and the Union. The Respondent
Union, in its answer, admitted that it requested and demanded Weinstein's dis-
charge, but denied the allegation that Weinstein was then or at any time since
a member of the Union in good standing, and averred, as did the Respondent
Company, that the discharge was made pursuant to its collective bargaining
agreement with the Company. Both Respondents denied the commission of
unfair labor practices.
Pursuant to notice a hearing was held at Pittsburgh, Pennsylvania, on Sep-
tember 29 and 30, 1949, before the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. All parties were represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all .parties. At the close of the General Counsel's case-in-chief, motions by the
Respondents, respectively, to dismiss the complaint for lack of proof, were denied.
Ruling was reserved on these motions when they were renewed at the close of the
hearing and they are now disposed of in accordance with the findings of fact
and conclusions of law made below. After the taking of evidence the under-
signed granted, without objection, the General Counsel's motion to conform the
pleadings to the proof in formal matters, and reserved ruling on his motion to
strike all testimony taken (over his objection) on procedure and practice relating
to the Union's exoneration of its members from payment of dues. This latter
motion is now denied. All parties waived oral argument before the Trial Exam-
iner at the close of the hearing, and the Respondents and the General Counsel,
respectively, have filed briefs with the undersigned.
Upon the entire record in the case, and from my observation of the witnesses, I,
the undersigned Trial Examiner, make the following :
PRESSED STEEL CAR COMPANY, INC. 283
FINDINGS OF FACT
1. COMMERCE ; THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company, a Pennsylvania corporation, maintains its principal
office at Pittsburgh, Pennsylvania, and its main plant at McKees Rocks, Pennsyl-
vania, where it is engaged in the manufacture of railroad freight cars.
During the period from January 1, 1948, to June 30, 1949, it purchased for use
of its plant at McNees Rocks, raw materials and supplies of an approximate value
in excess of $1,500,000, of which in excess of 30 percent was shipped to the
Company's plant from outside Pennsylvania. During the same period, it sold,
distributed, and delivered completed freight cars valued in excess of $3,000,000,
of which approximately 90 percent was sold, distributed, and delivered to custo-
mers outside Pennsylvania.
The Respondent Company presently employs an approximate total of 100 em-
ployees, but normally employs an approximate total of 2,300.
On the basis of the above stipulated facts, it is found, as admitted by the
Respondent Company, that the Respondent Company is engaged in commerce
within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, Local Union 1844, CIO, is a labor organiza-
tion affiliated with the Congress of Industrial Organizations, admitting to mem-
bership employees of the Respondent Company.
III. THE UNFAIR LABOR PRACTICES
The Respondent Company discharged Noah Weinstein on October 29, 1948,
at the request of the Respondent Union with whom it had a collective bargain-
ing contract. Section 3 of this contract, executed on June 16, 1947, and expiring
by its terms at midnight, April 30, 1949, reads:
All employees, who on the date hereof are members of the Union in good
standing, in accordance with its Constitution and By-Laws, and all employees
who become members after that date shall, as a condition of employment,
maintain their membership in, the Union in good standing for the duration
of this agreement.
The General Counsel does not attack the validity of the agreement, but alleges
that Weinstein was a member in good standing in the Respondent Union on and
prior to the date of his discharge and that the discharge was therefore discrim-
inatory inasmuch as it was not effectuated according to the terms of the agree-
ment.
The Respondents' position is that the discharge was requested and effectuated
pursuant to the maintenance-of-membership clause of the collective agreement ;
i. e., that Weinstein, who was a member of the Union prior to and after the execu-
tion of the collective agreement, failed to maintain his membership in good stand-
ing.
The factual issue posed by the complaint and litigated at the hearing is there-
fore a narrow one: Was or was not Weinstein a member of the Respondent Union
in good standing on the date of his discharge? If he was, the discharge was dis-
criminatory and violative of the Act ; if he was not, and the request for his dis-
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge was predicated upon that fact, under, the pleadings of this case there was
no violation by either of the Respondents.
Weinstein was a member of the Union at the time the collective agreement was
executed and paid his union dues through checkoff until June 4, 1948, when
he was laid off for lack of work. After June 1948, a checkoff of dues was made
only upon the written authorization of the employee, in conformity with then pro-
visions of the amended Act. Weinstein was not recalled for work until October
20, 1948, and he paid no union dues during the period of his layoff, a period of
more than 3 months.
A few days after Weinstein returned to work, he was approached by the Union's
shop steward, Paul Walls, who gave him a dues checkoff card and, presumably,
asked him to sign it. Weinstein testified that he told Walls that he had already
signed a checkoff card. He had reference, however, to his union membership
card and this card did not authorize a checkoff of dues. While Weinstein
assumed ignorance of this fact, I do not credit the assumption. Following his
conversation with Walls, Weinstein on October 22 addressed a letter to the Re-
spondent Company in which he stated that he did "not want any union dues or
assessments deducted from his pay effective as of above date." He addressed an
identical letter to the Respondent Union.
Weinstein was next approached in the matter of his union dues by Thomas
McGraw, financial secretary of the Union. McGraw's testimony on his conver-
sation with Weinstein and the circumstances attending it, which is credited in
full,' follows :
I had received a letter from Mr. Weinstein stating that he did not want
his dues or assessments deducted for the organization [Union] from his pay.
When I got that letter, I made every effort to contact Mr. Weinstein. The
first time I was unable to locate him, on the 26th of October. On the 27th of
October I was able to locate him when he was coming to report to work. I
held the letter out to Mr. Weinstein and I asked him what he meant by it.
He said, "I meant just what it says." I said, "In other words, you don't
want to sign a card?" He said, "That is just exactly what I mean." I said,
"Do you have any reasons for it?" He said, "I don't want to have a damn
thing to do with you." I said, "You have every right to refuse to sign, but
according to the law you must maintain your membership in the organiza-
tion and you must provide for the paying of dues to me as the Financial
Secretary of the Local Union." He further said, "I don't want to have a
damn thing to do with you." I said, "Mr. Weinstein, I am sorry that you
take such an attitude." He said, "You have no right to be talking to me in
front of all these people. This is a personal matter and you should have
spoke to me privately." I told Mr. Weinstein then that these members then
present were all members of the organization. We were not a secret order.
We have no secrets from our members and they were entitled to know all
that went on. He said then, "I still don't want to have a damn thing to do
with you." I then said, "I am sorry you take such an attitude."
2 Where there is conflict in the testimony of Weinstein and witnesses for the Respondents,
the testimony of the latter is credited. Weinstein was an evasive and recalcitrant witness,
withholding testimony which he thought might redound to his discredit, and slanting other
testimony to his supposed advantage. Evasive concerning his membership in the Union at a
prior place of employment, and denying familiarity with union procedures, he was shown
to have served as a member of the Union's grievance committee at a plant where he was
previously employed under another name.
PRESSED STEEL BAR COMPANY, INC. 285
Following his conversation with Weinstein, McGraw addressed a letter to the
president of the Union, Albert Ciccone, in which he stated that he had seen Wein-
stein and that Weinstein refused to sign an authorization card for deduction of
union dues and refused to agree to pay his dues by cash payment.
On October 28, Ciccone and Baehewski, the latter a field representative of the
Union, called on George F. Naylor, the Respondent Company's superintendent of
industrial relations, and requested Weinstein's discharge. "They told me," Nay-
lor testified, "he wasn't living up to the terms of the contract, Section 3 and
asked for his dismissal, on the ground that he refused to pay dues by cash or
payroll deductions." (Emphasis supplied.)
On October 29, before acting on the Union's request for Weinstein's discharge,
Naylor talked to Weinstein. "I was very much interested," Naylor testified, "as
to whether he wanted to pay dues by cash or otherwise. He indicated that he
did not want to do that, didn't want to pay dues in any respect. He said that."
Naylor then.read Section 3 of the bargaining agreement to Weinstein, and the
latter reiterated "that he did not want to pay dues in any respect." Naylor then
told Weinstein that he had no alternative but to discharge him. He instructed.
E. H. Hamilton, the Respondent Company's mechanical superintendent, who, con-
trary to Weinstein's testimony, was present throughout.the conversation between
Naylor and Weinstein, to make out a discharge slip. This was done. The slip,
bears the notation that Weinstein was discharged at the request of the Respondent.
Union because he refused to comply with the terms of Section 3, the maintenance-
of-membership clause, of the collective agreement.
On the credible testimony of Respondents' witnesses, I find that the Respondent
Union requested Weinstein's discharge, and the. Respondent Company acting on
that request discharged him, because Weinstein refused either to sign a card
authorizing a checkoff of union dues or to agree to pay his dues by cash. As a
member of the Respondent Union at the time the collective agreement was exe-
cuted, Weinstein was required, as a condition of employment, to remain a member
in good standing during the life of the agreement. By his refusal to agree to
pay his union dues, noted above, did he cease to be a member in good standing?
The Union's constitution, incorporated by reference in the collective agreement
insofar as it defines the term "member in good standing," provides in its Article
XI :
A member shall be in good standing if he is not more than three months in
arrears in any of his constitutional obligations except in, respect to assess-
ments, in which he shall be not more than one month in arrears.
Weinstein was more than 3 months in arrears in the payment of his union
dues at the time of his discharge, his last dues payment having been made by
checkoff in June. However, Section 7, Article XIV of the Union's constitution
provides, inter alia:
Individual members of a local union who have not worked five days in any
one month through no fault of their own shall be exonerated from the
payment of dues.
Weinstein during the'entire period in which he was in arrears in the payment
of his union dues, had the status of a laid-off employee, and insofar as the record
of this proceeding shows, was not employed at any time during the period of his
layoff. The question now arises whether or not he was "exonerated" from the
payment of dues during his layoff. If he was, he was not 3 months "in arrears
in any of his constitutional obligations," insofar as is disclosed by this record,
286 DECISIONS OF NAT IONAL- LABOR RELATIONS BOARD
and therefore had not ceased to be a member in good standing in the Union at the
-time of his discharge. It is the Respondent Union's contention that Weinstein
-was not "exonerated" from the payment of dues during the period of his layoff
'because he made no application for exoneration. It is found that he did not
irequest exoneration, either orally or in writing.
The Respondent Union sought to show that it was the uniform practice for its
-members claiming exoneration to sign application forms which are provided for
this purpose. These forms are submitted to the appropriate union officer who
investigates the claim made by the applicant and if it is determined that the
applicant is entitled to exoneration, he is supplied with an exoneration stamp for
his dues card. The undersigned does not question that provision is made for such
a practice and the various forms used in its effectuation are in evidence. It is
true, as contended by the General. Counsel, that exoneration is mandatory, but
only if the applicant has worked less than 5 days in a given month "through no
fault" of his own. This provision of the Union's constitution clearly contem-
plates a modus operandi by which the claim for exoneration may be reviewed for
the purpose of determining whether or not the applicant has met the constitu-
tional requirement.' It cannot be said, therefore, that the constitution requires
an "automatic" exoneration. I am not convinced, however, that the Union has
shown a uniform practice of exonerating its members only upon application.
Admittedly, members whose dues are paid by checkoff are not required to
make application for exoneration during periods of involuntary idleness,' and
McGraw testified that of the several hundred employees laid off by the Company
during the summer of 1948, no more than "half a dozen, or so" applied for exon-
eration from payment of dues during the layoff period." Upon the entire testi-
mony, I am convinced that this layoff was of common knowledge among officers
of the Union, and that no specific request for exoneration was required of mem-
bers who failed to.pay their dues during the layoff period. Moreover, it is clear
that Weinstein's discharge was requested and effectuated, not because he had
failed to pay dues during the period of his layoff nor because he had failed to
seek and obtain exoneration of dues payments during this period, but because he
refused McGraw's request that he either sign a checkoff card or agree to pay his
dues by cash.
Neither McGraw nor Walls, the only two officers of the Union who spoke to
Weinstein concerning his dues, made any reference to his failure to pay dues
during the period of his layoff. Nothing was said in any of the interviews which
Weinstein had with either company, or union officials, concerning his being in
arrears in his dues payments. Obviously, if the officers of the Union considered
that Weinstein had ceased to be a member in good standing because of his failure
to obtain exoneration from dues payments during the period of his layoff, they
would not have asked him to sign a checkoff card which could operate only for
the payment of current and future dues. And it can hardly be doubted that had
3 Evidence of custom and practice in the matter of "exoneration," and Weinstein's
knowledge thereof, was received over the General Counsel's objection, not for the purpose
of showing something contrary to the plain meaning of the constitutional provision, as
contended by the General Counsel, but for the purpose of showing the manner in which
the constitutional provision was administered.
"Testimony of Thomas Murray, assistant to the secretary-treasurer of the Union's
International.
5 An all-party stipulation on the number of employees laid off during this period, sub-
witted after the close of the hearing, is by agreement of the parties received in evidence,
and made a part of the transcript of this proceeding , as General Counsel ' s Exhibit
Number 10.
PRESSED STEEL CAR COMPANY, INC. 287
Weinstein agreed to sign a checkoff authorization; that would have ended the
matter and no request for his discharge would have been made. Logic compels
the conclusion, therefore, that officers of the Union, fully apprised of Weinstein's
layoff, regarded him as having maintained his membership in good standing de-
spite his failure to pay dues during the layoff period, and only sought to arrange
for the collection of his current and future membership dues. His refusal to
comply with this request did not automatically deprive him of his membership
in good standing, and would not until he had been in arrears in the payment of
his dues for 3 months. The 3-month period, therefore, had only begun to run
at the time his discharge was requested and effectuated.
The Respondent Company is charged with knowledge of what constitutes
a "member in good standing" in the Respondent Union, because Section 3 of
the collective agreement incorporates by reference the Unions constitution and
bylaws insofar as they are descriptive of this term. The Respondent Company
apparently assumed that Weinstein's refusal to sign a checkoff card or make-
other arrangement for the payment of his' dues, automatically deprived him of
his status as a member of the Union in good standing, but, as has been seen,
this was error. The Respondents' good faith, which I do not question, does not,.
of course, under the circumstances of this case, constitute a defense.
I find that Noah Weinstein was a member in good standing in the Respondent
Union at the time his discharge was requested and effectuated. His discharge'
therefore was not required by the collective agreement. I accordingly find
that by its discharge of Noah Weinstein the Respondent Company violated
Section 8 (a) (1) and (3•) of the Act.
The Respondent Union, by causing the discriminatory discharge of Noah
Weinstein, violated Section 8 (b) (2) of the Act.
There is no evidence of violation of Section 8 (b) (1) of the Act by the Re-
spondent Union, independent of the facts upon which the violation of Section.
8 (b) (2) is established. I will therefore recommend that the complaint be-
dismissed insofar as it alleges an 8 (b) (1) violation e
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in:
connection with the operations of the 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 commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Company and the Respondent
Union have engaged in unfair labor practices violative of Section 8 (a) (1) and
(3) and Section 8 (b) (2) of the Act, respectively, it will be recommended that
they cease and desist from their respective unfair labor practices and take.
certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent Company discriminatorily discharged Noah.
Weinstein, the undersigned will recommend that the said Respondent Com-
pany offer Noah Weinstein immediate and full reinstatement to his former or
6 For cases which deal with related issues, see : General X-Ray Corporation, 76 NLRB 64
Interstate-'engineering Corporation., 83 NLRB 126; Iron Fireman Company, 69 NLRB 1$ ;
Baker and Company, 68 NLRB 530; H. Milton Newman, et at., 85 NLRB 725.
288 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
a substantially equivalent position ' without prejudice to his seniority and other
rights and privileges.
Having found that the Respondent Union caused the Respondent Company
discriminatorily to discharge Noah Weinstein , it will be recommended that the
Respondent Union notify the Respondent Company, in writing, that it withdraws
its objections to Weinstein 's employment and requests the Respondent Company
to offer him immediate and full reinstatement to his former or a substantially
equivalent positon, without prejudice to his seniority and other rights and
privileges.'
It will be recommended that the Respondents jointly and severally make Noah
Weinstein whole for any loss of pay he may have suffered because of the dis-
crimination against him , by payment to him of a sum of money equal to the
amount he normally would have earned as wages from the date of his discrim-
inatory discharge to the date of the offer of reinstatement , less his net earnings
during such period,9 provided the offer of reinstatement is made prior to or
coincident with the Union ' s written notification to the Respondent Company, as
provided above; if the Company 's offer of reinstatement is made after the Union
has filed with the Respondent Company its said written notification , as provided
above, the Union's joint and several liability shall be limited to the period from
the date of the discriminatory discharge to the date upon which it files with the
Company the said written notice, and the Respondent Company solely shall
make Noah Weinstein whole for any loss of pay he may suffer because of the
Respondent 's continued discrimination against him , by payment to him of a sum
of money equal to the amount he normally would have earned as wages from the
• date the Respondent Union files with the Respondent Company the written
notice, as provided above, to the date of the offer of reinstatement , less his net
earnings during such period io
Upon the basis of the foregoing findings of fact and the entire record of this
proceeding , the undersigned makes the following :
IIn accordance with the Board 's consistent Interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wher-
ever possible , but if such position is no longer in existence , then to a substantially equivalent
position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.
8Inasmuch as the unfair labor practices flowed from the Union ' s request that Weinstein
be discharged , it would appear to be its proper share of responsibility for restoring the
status quo , to withdraw formally its objections to his employment and to request his
reinstatement.
B Crossett Lumber Co., 8 NLRB 440, 497-498.
10, In the Newman case (Newman and Local 4 56, Teamsters and Chauffeurs Union, 85
NLRB 725 ) the Board stated the rationale of its policy on the joint and several liability
of unions and employers in an analogous situation. In the case at bar, however, the
discriminatorily discharged employee not having been reinstated , and the Respondent
Union having no power to require his reinstatement , it seems obvious that its joint and
several liability in the matter of back pay should terminate when it has done all that can
reasonably be required of it i. e., notified the employer that It withdraws its objections
to the employment of the discharged individual and requests his reinstatement . Obviously, .
the union and the employer may not always see eye to eye in such matters as compliance.
with the recommendations of an intermediate report or a Board decision , but the employer
has the Independent and absolute power to stop the running of back pay by an offer of,
reinstatement , whereas the union, under a remedy designed to effectuate the policies of the
Act with reference to employer violations solely, is given no such independent power but.
must continue to be jointly and severally liable with the employer for as long as the
employer solely may choose to contest or defer reinstatement.
` PRESSED STEEL CAR COMPANY, INC. 289
CONCLUSIONS OF LAW
1. United Steelworkers of America , Local Union 1844, CIO , is a labor organ-
zation within the meaning of Section 2 (5) of the Act.
-.2. By. discriminating in regard to the tenure of employment of Noah Wein-
stein, Pressed Steel Car Company, Inc ., has engaged in unfair labor practices,
within -the: meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Pressed Steel Car Company, Inc.,
has engaged in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. By causing Pressed Steel Car Company, Inc., to discriminate in regard to
the tenure of employment of Noah Weinstein in violation of Section 8 (a) (3)
of the Act , United Steelworkers of America , Local Union 1844, CIO, has engaged
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
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent Union has not violated Section 8 (b) (1) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this proceeding , the undersigned recommends that :
1. Pressed Steel Car Company, Inc ., Pittsburgh , Pennsylvania , its officers,
agents, successors , and assigns , shall:
A. Cease and desist from :
(1) Encouraging membership of its employees in United Steelworkers of
America, Local Union 1844 , CTO, or any other labor organization, by discharging
any of its employees or discriminating in any other manner in regard to their
hire or tenure of employment , or any terms or conditions of employment;
(2) In any like or related manner interfering with, restraining , or coercing
its employees in the right to retrain from exercising the rights guaranteed them
in 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 in Section 8 (a) (3) of the Act.
B: Take the following affirmative action, which it is found will effectuate
the policies of the Act :
(1) Post at its plant at McKees Rocks, Pennsylvania , or at such places as
notices to its employees are customarily posted, copies of the notice attached
hereto as Appendix A. Copies of said notice , to be furnished by the Regional
Director for the Sixth Region, shall, after being duly signed by this Respondent,
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 its employees are customarily posted. Reasonable steps shall
be taken by this Respondent to insure that said notices are not altered , defaced,
or covered by any other material;
(2) Offer to Noah Weinstein immediate and full reinstatement to his former
or a substantially equivalent position , without prejudice to his seniority or other
rights and privileges ;
(3) Notify the Regional Director for the Sixth Region, in writing, within
twenty ( 20) days from the date of the receipt of this Intermediate Report and
Recommended Order, what steps it has taken to comply with its recommendations.
290 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
II. United Steelworkers of America,- Local Union 1844, CIO, McKees Rocks,
Pennsylvania, its officers, representatives, and agents , shall :
A. Cease and desist from :
(1) Requiring, instructing, or inducing Pressed Steel Car Company, Inc., its
officers, agents, successors, or assigns, to discharge employees or in any other
manner discriminate against them in regard to their tenure or any other term .
or condition of employment, because such employees are not members in good
standing of United Steelworkers of America, Local Union 1844, CIO, except
as is provided in Section 8 (a) (3) of the Act.
B. Take the following affirmative action, which it is found will effectuate the
policies of the Act :
(1) Notify, in writing, Pressed Steel. Car Company, Inc., that it withdraws
its objections to Noah Weinstein's employment by the Respondent Company and
requests Pressed Steel Car Company, Inc., to offer Noah Weinstein immediate
and full reinstatement to his former or substantially equivalent position, with
out prejudice to his seniority and other rights and privileges ;
(2) Post in conspicuous places in its business office at McKees Rocks, Penn-
sylvania, or such place as notices to its members are customarily posted, copies
of the notice attached hereto as Appendix B. Copies of said notice, to be fur-
nished by the Regional Director of the Sixth Region, shall, after being duly
signed by official representatives of United Steelworkers of America, Local Union
1844, CIO, be posted by the Respondent immediately upon receipt thereof and..
maintained by it for a period of sixty (60) consecutive days thereafter. Reason-
able steps shall be taken by this Respondent, to insure that said notices are not
altered, defaced, or covered by any other material ;
(3) Mail to the Regional Director for the Sixth Region signed copies of the
notice attached hereto as Appendix B, for posting, with the consent of the Re-
spondent Company at its principal place of business, in places where notices to
employees are customarily posted. Copies of said notice, to be furnished by the
Regional Director for the Sixth Region, shall, after being signed as provided in
paragraph B (2) of these recommendations, be forthwith returned, to ,the Regional
Director for posting at the place of business of the Respondent Company, as
aforesaid;
(4) Notify the Regional Director for the Sixth Region, in writing, within
twenty (20) days from the date of the receipt of this Intermediate Report and
Recommended Order, what steps this Respondent has taken to comply with its
recommendations.
III.:. Pressed Steel Car Company, Inc., its officers, agents, successors, and as-.
signs; and United Steelworkers of America, Local Union 1844, CIO, its officers,
representatives., and. agents, shall jointly and severally make whole Noah Wein-
stgi;nrfyr, any loss, of pay he may have suffered because of the discrimination
against him, by payment to. him of a sum of money equal to the amount he
normally would have earned as wages from the date of the discriminatory dis-
charge to the date of the offer of reinstatement, or to the date on which United
Steelworkers of America, Local Union 1844, CIO, serves Pressed Steel Car Com-
pany, Inc.,. with the written notice as set forth in Section II B (1) of these Rec-
ommendations ,. whichever occurs earlier , less his net earnings during such
period.
IV_ Pressed Steel Car Company, Inc:, its officers, agents, successors;: and assigns,
shall make whole Noah, Weinstein,4or any, loss of pay he may, have suffered
because of the discrimination against 'hini, by payment to him of a sum of money
c-- PRESSED STEEL CAR COMPANY, INC. 291
equal to the amount he normally would • have earned as wages from the date-
it is served by United Steelworkers of America, Local Union 1844,. CIO, with
written notice as required by Section II B (1) of these recommendations, to
the-date of the offer of reinstatement, less his net earnings during such period.
It is recommended that the complaint be dismissed insofar as it alleges that.
the Respondent Union violated Section 8 (b) (1) of the Act.
It is also recommended that unless the Respondents, and each of them, shall
within twenty (20) days from the receipt of this Intermediate Report, notify
said Regional Director in -writing that they will comply with -.the foregoing rec-
ommendations, the Board issue an order requiring said Respondents to take the
action aforesaid.
. As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date.
of service. of the order transferring the case to the Board, pursuant to Section.
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of
the record or proceeding (including rulings upon all motions or objections) as he.
.relies upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of a-
brief in support of the I.nterlnediate Report and.Recommended Order. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions of
the record relied upon and shall be legibly printed or mimeographed, and if
mimeographed shall be double spaced. Proof of service on the other parties of
all papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46, should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of service of the order
transferring. the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board, and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated.at Washington, D. C., this 7th day of November 1949.
WILLIAM E. SPENCER,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in United Steelworkers of America,
Local Union 1844, CIO, or in any other labor organization of our employees
by•discri-minatorily 'discharging any. of our employees or discriminating. -in
'889227-51-vol. 89-20
292 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
any other manner in regard to their hire or tenure of employment, or any
terms or conditions of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the right to refrain from any or all of the concerted activities
guaranteed them by 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 in Section 8 (a) (3)
of the Act.
WE WILL OFFER to Noah Weinstein immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to his
seniority or other rights or privileges, and WE WILL make Noah Wein-
stein whole for any loss of pay he suffered as a result of the discrimination
against him.
All of our employees are free to become, remain, or to refrain from becoming
or remaining, members in good standing of the above-named union or any
other labor organization except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the amended Act.
PRESSED STEEL CAR COMPANY, INC.,
Employer.
By --------------------------------
(Representative) (Title)
uated---------------------------------•
This notice must remain posted for sixty ( 60) days from the date hereof, and
must not be altered , defaced , or covered by any other material.
APPENDIX B
NOTICE
To ALL MEMBERS OF UNITED STEELWORKERS OF AMERICA, LOCAL UNION 1844, CIO,
AND TO ALL EMPLOYEES OF PRESSED STEEL CAR COMPANY, INC.
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the,. National: Labor
Relations Act, as amended, we hereby notify'you that:
WE WILL NOT require, instruct, or induce Pressed Steel Car Company, Inc.,
to discharge employees or in any other manner discriminate against them
because they are not members in good standing in United Steelworkers
of America, Local Union 1844, CIO, except in accordance with Section
8 (a) (3) of the Act.
WE WILL make Noah Weinstein whole for any loss of pay he may have
suffered because of our action in causing Pressed Steel Car Company, Inc.,
to discriminate against him.
UNITED STEELWORKERS OF AMERICA, LOCAL UNION 1844, CIO;
By -------------------------------------------------------
Dated----------=----------
(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.