Standard Brands, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1951

97 N.L.R.B. 737 (N.L.R.B. 1951)

STANDARD BRANDS, INCORPORATED 737
CONCLUSIONS OF LAW
1. Fresh Fruit & Vegetable Workers' Local No. 78 is a labor organization with-
in the meaning of Section 2 (5) of the Act.
2. By attempting to cause and causing the discharge of Velma Brubaker,
Virginia Papangellin, Clarence M. Horton, and Louise Brookover, Local 78
caused Christensen, Stolich, and Englund to discriminate against employees in
violation of Section 8 (a) (3) of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (b) (2) of
the Act.
3. By such conduct, Local 78 has restrained and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act and thereby has en-
gaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) •(1) (A) of the Act.
4. Englund in the case of Brookover, Christensen in the cases of Brubaker
and Papangellin, and Stolich in the case of 'Horton, have discriminated in re-
gard to the hire and tenure of employment of these individuals, thereby en-
couraging membership in Local 78 and discouraging activity in behalf of any
other labor organization and have thereby engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
5. By such conduct, Christensen, Stolich, and Englund have interfered with,
restrained, and coerced their employees in the exercise of rights guaranteed
by Section 7 of the Act, and thereby have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. Massera, Crosetti, Independent, Growers, and Nutting have not engaged
in unfair labor practices within the meaning of Section 8 (a) (I) and Section
8 (a) (3) of the Act. Local 78 has not caused or attempted to cause the em-
ployers last named to discriminate against an employee in violation of Section
8 (a) (3) of the Act and thus has not, with respect to the employees of such
employers, violated Section 8 (b) (2) of the Act. Further, with respect to
the employees of the last-named employers, Local 78 has not restrained of
coerced such employees in the exercise of rights guaranteed in Section 7 of the
Act and thus has not in those cases violated Section 8 (b) (1) (A) of the Act.
[Recommended Order omitted from publication in this volume.]
STANDARD BRANDS, INCORPORATED and MICHAEL SIMONE
MEAT & CANNERY WORKERS UN1ON, LOCAL 56, AFL and MICHAEL
SIMONE. Cases Nos. 2-CA-812 and 2-CB-26'6. December
28, 1951
Decision and Order
On February 28, 1951, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding
that Respondents had not engaged in and were not engaging in any
unfair labor practices and recommending dismissal of the complaint
herein, as set forth in the copy of the Intermediate Report attached
97 NLRB No. 102.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereto. Thereafter, the General Counsel filed exceptions to the In-
termediate Report and supporting brief." Complainants filed a brief
in support of the General Counsel's exceptions; and both Respond-
ents filed briefs in support of the Intermediate Report.
Oral argument, in which all parties participated, was heard by
the Board on November 27, 1951.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby. affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tion of the Trial Examiner, with the modifications and additions
noted below.
1. The complaint did not attack the union-shop clause here involved;
at the hearing its validity was conceded; and the Intermediate Report
was issued on that basis . In his motion to remand, however, the Gen-
eral Counsel sought to reopen the record to withdraw this concession,
and contended that the clause was unlawful in that it failed to give
persons already employed when the contract was executed (herein
called old employees) a grace period of 30 days during which union
membership was not required. Although it is now established by the
Board's recent decision in Charles A. Krause Milling Company 2 that
those old employees who previously were members of the contracting
union were not entitled to such a temporary grace period, the General
Counsel's contention must be considered because, in his view, the
union-shop clause failed to give the remaining, or nonmember, old
employees a full 30 days' grace.3
The clause in question reads :
Beginning with the date when the National Labor Relations
Board shall certify to the employer that the Union is duly au-
thorized to make an agreement requiring membership in the
Union, as provided for in Section 8 (a) (3) of the National Labor
Relations Act, all employees shall, as a condition of continued
employment, be members of the Union on the thirtieth day fol-
lowing either such date or the date of their employment, which-
ever shall be later, and shall retain membership in the Union
for the duration of this agreement.
The contract containing this clause was executed on October 11, 1948.
Several weeks earlier, on September 23, a union-shop election had
been held. On October 1, 1948 (10 days before the contract was
executed), the Union had been certified by the Board as authorized
1 The General Counsel also filed a motion to remand , discussed below.
2 97 NLRB 536 , modifying Worthington Pump and Machinery Corp., 93 NLRB 527.
3 Cf. Green-Bay Drop Forge Co., 95 NLRB 399.
STANDARD BRANDS, INCORPORATED 739
to enter into a union-shop agreement. Because of this, the General
Counsel argues that the 30-day grace period for old employees began
to ruai from October 1 and thus expired less than 30 days after the
effective date of the contract, October 11.
We do not agree. The clause appears lawful on its face. It pur-
ports to take effect for old employees "on the thirtieth day follow-
ing ... the date when the NLRB shall certify to the employer that
the Union is duly authorized . . ." (emphasis supplied). The fu-
turity of this language and the reference to Section 8 (a) (3) of the
Act evidence the clear intent of the parties to write an agreement
which complied with all lawful requirements. Apparently, either
the contract negotiations were prolonged beyond original expecta-
tion or else the Board's certification issued sooner than expected; and
the parties then failed to revise the language of their contract to
take account of the unanticipated circumstance. There is no indica-
tion that the parties sought to apply the union-shop clause within
30 days of the contract's execution. We therefore find, in accord
with the intent of the parties, that the clause gave all employees a
grace period extending 30 days beyond October 11, the date when the
contract was executed.4 The clause was accordingly a lawful one,
capable of supporting union-shop discharges. Because we thus dis-
pose of this issue, we find the General Counsel's motion to remand
immaterial and hereby deny it.
2. We agree with the Trial Examiner that the Respondent Union's
demand for the discharge of the complainants and the Respondent
Company's compliance with that demand on May 31, 1949, were both
made lawful by the Respondents' union-shop contract. The com-
plainants' membership had been automatically suspended at least as
early as March 11, 1949, because of their nonpayment of February.
dues.' The legal effect of this, at least for union-shop purposes, was
that their membership was terminated on that date .6 In addition,
they had all been repeatedly warned that failure to pay dues by the
tenth of each month might result in dismissal. The sudden decision
to make these warnings effective may indeed have been harsh, but
it was not unlawful.
As their membership was terminated because of their failure to
4 Ansley Radio Corporation, 18 NLRB 1028, 1057; 0. B. Andrews Co., 86 NLRB• 59;
Snyder Engineering Corp., 90 NLRB 783; Ferro Stamping and Manufacturing Co., 93
NLRB 1459.
" The constitution of the Union 's International provides that suspension results auto-
matically when dues are not paid by the 10th day of the second month.
6 The Board has held that the word "membership ," as used in the union-shop provisos
to Section 8 (a) (3) and as employed by parties in union-shop contracts , means good-
standing membership . Ferro Stamping and Manufacturing Co., 93 NLRB 1459; Firestone
Tire and Rubber Co., 93 NLRB 981. Suspension of the complainants ' good-standing mem-
bership was thus a "termination " of their "membership" within the meaning of the
provisos (Electric Auto-Lite Company, 92 NLRB 1073, 1078 footnote 11), and within the
meaning of Respondents' union-shop contract.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tender their dues at the time uniformly required, they could be dis-
charged without infringing proviso (B) of Section 8 (a) (3) of the
Act 7 We find no merit in the contention that the Union's earlier
leniency in invoking its union-shop contract effected an alteration in
its dues requirements. Such a view would penalize even the most laud-
able leniency and would render union dues requirements so uncertain
and fluctuating that proviso (B) would become virtually impossible -
of administration.
We also agree with the Trial Examiner that the Respondent Union
did'not bring the discharges within the ban of the Act by its disparate
treatment of those employees who were, and those who were not, more
than three months delinquent. In steadfastly adhering to its deter-
mination not to restore to membership any of the former group
after May 27, 1949, while at the same time treating the latter group
as if they had never been suspended, the Union was giving effect to
a reasonable classification of general applicability, one not violative
either of proviso (A) or of the portion of proviso (B) which specifies
that dues requirements must be uniform if membership is denied for
failure to comply with them.8 The complainants were all more than
3 months delinquent. Accordingly, the fact that the Union refused
to permit them to restore themselves to good-standing membership,
while allowing automatically suspended members who were less seri-
ously delinquent to do so, did not render the discharge of the com-
plainants unlawful.
3. We find it unnecessary to consider or adopt the Trial Examiner's
holding that because the action of the Union was legitimate, "the
Employer's conjecture to the contrary cannot . . . affect the legality
of his own conduct." The evidence shows that the Company had no
reasonable grounds for believing that the discharge of any of the
complainants was sought by the Union for any reason other than
their failure to make timely tender of d.es uniformly required.
Nor did it have any reasonable grounds for believing that good-
standing membership in the Union was not available to the complain-
ant on the same terms and conditions generally applicable to other
employees. It undoubtedly knew that the Union was rejecting the
belated tenders of employees who had been notified of discharge, but
it had no reason to think that any employees-similarly circumstanced
were being treated more leniently.
4. We also find it unnecessary to consider or adopt the Trial
Examiner's finding that an *employer is privileged to refuse to consider
union-shop discharges for new employment until the end of the
' Chisholm -Ryder Company, Inc., 94 NLRB 508; Ferro Stamping and Manufacturing
Co., 93 NLRB 1459.
S Cf Electric Auto-Lite Co., 92 NLRB 1073 , House Conf Rep No 510, on H R 3020
( 80th Cong , 1st Sess.) p. 41.
STANDARD BRANDS, INCORPORATED 741
current contract period. The applications for new employment which
were alleged to have been made by some of the dischargees in the pres-
ent case took place in late June and early July of 1949, approximately
a month after the discharges. Regardless of the precise language-
used by the applicants, their requests for work followed so soon upon
the heels of the discharges, and were so closely related to the turmoil
resulting front. those discharges, that we cannot view them as applica-
tions for new employment. They were more in the nature of requests-,
for reconsideration of the antecedent discharges. The Respondent
Company was under no obligation, at such a time, to consider these
requests on the same footing as those of entirely new applicants-
We shall accordingly dismiss the complaint herein.
Order
Upon the entire record in this case and pursuant to Section 10 (c)i
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against Respondent
Standard Brands, Incorporated, and against Respondent Meat &
Cannery Workers Union, Local 56, AFL, be, and it hereby is, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges and amended charges filed by Michael Simone on June 9, July 26,
and November 8, 1949, against Standard Brands, Incorporated, Hoboken, New
Jersey, and Meat & Cannery Workers Union, Local 56, AFL, the General
Counsel of the National Labor Relations Board caused the cases to be consoli-
dated and his complaint to be issued on August 11, 1950, against the said Company
and said Union charging violations of Section 8 (a) (1) and (3) and 8 (b) (1)
(A) and 8 (b) (2) of the National Labor Relations Act. Copies of the complaint,
the order of consolidation, the charges, and notice of hearing on the complaint
were duly served on the Company, the Union, and the charging party.
With respect to the unfair labor practices, the complaint as amended at the
hearing alleged, in substance, that on or about May 31, 1949, (1) the Union
caused the Company to discriminate against 17 named employees' because of
nonmembership in the Union, and that these employees had been denied member-
ship, and had had their membership terminated, for reasons other than their
failure to tender the periodic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership in the Union, and (2) that the
Company discriminated against the named employees for nonmembership in the
Union although it had reasonable ground for believing (a) that their membership
had been terminated, and that they were denied membership, for reasons other-
than their failure to tender the periodic dues and initiation fees uniformly
required as a condition of acquiring or maintaining membership in the Union,
and '(b) that the Union failed and refused to make membership available to
' The original complaint named the following as the dischargees : Michael Simone,
Henry Blunt, John Thorpe, Peter Kaminski, Paul Cemelh, Louis Bucci, Kathleen Kernag.
ban, Sara Florio, Mary Borkowski, Nancy Ripacandida, Martin Shipe, and Ten (10) other-
employees whose names are presently unknown " During the course of the hearing six
other names were added by amendment, over objection, in substitution for the quoted
phrase. These names are Thomas Debnam, Patricia Mulhearn (Owens), Anne Mulvaney,
Ellen Rinaldi, Louise Van Nest, and Chester Wyzykowski.
9862&9-2-vol. 97--48
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the named employees on the same terms and conditions generally applicable to
other members of the Union.
On August 23, 1950, the Union, and on September 18, 1950, the Company filed
their answers denying the commission of unfair labor practices.
Upon due notice a hearing was held from November 21 to December 14, 1950, at
New York, New York, before Charles W. Schneider, the undersigned Trial
Examiner. The General Counsel, both Respondents, and some of the complain-
ants 2 were represented by counsel, participated in the hearing, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. During the course of the hearing, upon
motion of the General Counsel, the complaint was amended in various, respects.
At the close of the General Counsel's case-in-chief, both Respondents moved to
dismiss the complaint. These motions were denied. Ruling was reserved on
similar motions made by the Respondents at the close of the evidence. The
latter motions are disposed of by the findings and recommendations made here-
inafter. Without objection the complaint was amended to conform to the proof.
Opportunity was afforded all parties for oral argument upon the record and
for the filing of briefs and proposed findings. Briefs were received from the
General Counsel and from the Union on January 30, 1951, and from the Company
on January 31, 1951.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following :
FINDINGS
I. THE BUSINESS OF THE COMPANY
Standard Brands, Incorporated, is a Delaware corporation engaged in the
business of manufacturing, processing, and merchandising of food products, mold
of yeast, and distilled beverages.
Among subsidiaries of the Company are the A. Fleischman Molding Company
and the Fleischman Distillery Corporation. The Company maintainsoffices in
New York, New York ; Chicago, Illinois ; Philadelphia, Pennsylvania-; Birming
ham, Alabama ; Kansas City, Missouri ; San Francisco, California ; and Cincin-
nati, Ohio. It operates plants located in Chicago, Illinois; Peekskill, New York;
Oakland, California ; Dallas, Texas ; Indianapolis, Indiana ; and Hoboken, New
Jersey. ,
The instant proceedings involve only the Hoboken, New Jersey plant.
During 1949 the Company, in the course of its business operations, purchased
raw materials and supplies valued at in excess of $1,000,000, a substantial portion
of which was transported in interstate commerce to its various plants located
in the several States of the United States, including the Hoboken plant.
During the same year the Company manufactured, distributed, and sold food
products valued at in excess of $1,000,000, a substantial portion of which was
shipped and transported in interstate commerce to its various customers located
in the several States of the United States from its various plants, including
the Hoboken plant. The Company ships out of the Hoboken plant to places
outside the State of New Jersey products valued at $25,000 or more.
It was stipulated that the Company is engaged in interstate commerce.
II. THE LABOR ORGANIZATION INVOLVED
Meat and Cannery Workers Union, Local 56, is a labor organization affiliated
with the American Federation of Labor, admitting to membership employees of
the Company.
. 2 Simone, Thorpe , Bucci, Florio , Cemelli , Ripacandida; Kaminsky , and Blunt.
STANDARD BRANDS, INCORPORATED
III. THE ALLEGED UNFAIR LABOR PRACTICES
743
A. The issue
The case involves the validity of the discharge of and refusals to reinstate 17
employees. The discharges were effected by the Company pursuant to request by
the Union under a valid union-shop agreement. These employees, the complain-
ants herein, were at that time more than 3 months delinquent in the payment of
their union dues. Various grounds, discussed hereinafter, are alleged as support-
ing the allegation that the Union and the Company violated the statute. Briefly,
the complaint is that the discharges and subsequent refusals to reinstate the
employees in their jobs and in the Union were violative of Section 8 (b) (2) and
the-provisos to Section 8 (a) (3) of the Act.
B. The background
The Company is a food processor with an employment, depending upon the
season of the year, of from 600 to 1,300 employees.
Prior to October 1948 the Company and the Union were operating under a
collective bargaining contract containing a requirement, presumably valid,
for union membership as a condition of employment. That agreement con-
tained a clause, however, requiring the Union to give the Company 2 weeks'
notice of intent to seek the dismissal of employees for loss of membership by
reason of dues delinquency. The purpose of this provision was apparently to
permit the Company to give employees opportunity to discharge their delin-
quency. This provision proving mutually unsatisfactory, both the Company and
the Union proposed at the expiration of that contract in 1948 that it be aban-
doned ; the Company's position being, to quote its plant manager, Edmund M.
Bowie, that it "didn't want to be a collection agent for the union."
Thereafter, on October 11, 1948, the Company and the Union entered into a
new collective bargaining agreement expiring September 1, 1949, containing,
in part, the following union-shop requirement :
Beginning with the date when the National Labor Relations Board shall
certify to the employer that the Union is duly authorized to make an agree-
ment requiring membership in the Union, as provided for in Section 8 (a)
(3) of the National Labor Relations Act, all employees shall, as a con-
dition of continued employment, be members of the Union on the thirtieth
day following either such date or the date of their employment, whichever
shall be later, and shall retain membership in the Union for the duration
of this Agreement.
The Union, on October 1, 1948, had been duly certified by the Board's Regional
Director, after election, as authorized to make such an agreement, in accord-
ance with Sections 8 (a) (3) and 9 (e) of the Act. The contract was therefore
valid ; this is conceded. It contained no clause, as had its predecessor, for
notice to the Company of intent to seek discharge of employees for dues de-
linquency.
The Union Constitutions
The Respondent Union operates under two constitutions, its own local con-
stitution and the constitution of the International Union. The local constitu-
tion (part 6), with respect to the payment of dues, provides that they are "pay-
able in advance, and must be paid on or before the 10th day of the month." It
further provides that "There shall be no fines or assessments for non-payment
of dues. Members failing to pay their dues on time may be suspended."
The international constitution governing local unions, article VII, provides
as follows : "Membership dues are payable in advance and those not having
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid their dues by the tenth day of the second month and received a receipt from
the Local Secretary, shall stand suspended and shall be deprived of all benefits
of the Union for six months after rejoining the Local Union."
It is thus seen 'that under the local constitution delinquent members may be,
but are not automatically, suspended unless dues are paid within 10 days after
becoming due. But under the International's laws 40 days' delinquency auto-
matically results in suspension from the Union and loss of benefit for 6 months
after "rejoining."
Other provisions of the international constitution impose various penalties
upon the local for failure to meet its own financial obligations to the Inter-
national. Thus 2 months' delinquency by the local in forwarding the Interna-
tional's share of dues payments and other indebtedness 'results in the local's
loss of good standing, in the- deprivation of strike and death benefits of local
members, fines , and suspension of the local.
International rules, binding on the locals, regarding reinstatement and appli-
cation to rejoin the Union, state the following:
Section 3: A suspended member wishing to rejoin the organization must
accompany his application with full amount of arrears up to date of suspen-
sion and such other fees as the union may prescribe.
Section 4: All applications to rejoin the organization must be voted upon-
at a regular meeting. A two-thirds vote of all votes cast is required for all
members to rejoin the organization.
Although members may have been over 40 days delinquent in dues, the local
union did not, however, prior to May 27, 1949, follow the procedure outlined
in section 3, above, respecting reinstatement. The local continued to accept dues
payments from them as a matter of course. They were permitted to restore
themselves "automatically" to good-standing membership by the payment of
the delinquent dues. No formal application for membership or reinstatement
or other action was required in the manner set out in sections 3 and 4.
Efforts to Collect Union Dues
The contract contained no provision for the checkoff of union dues from
wages. The Union pursued a lenient policy with respect to dues delinquency,
punctuated by periodical campaigns for collection, sometimes successful, some-
times not.
Following some complaints, in the early stages of the Union's tenure in the
plant, to the effect that the machinery for dues payment was inadequate, the
Union expanded these facilities for the convenience of the employees.3 It
maintained an office, 11/2 blocks from the plant, open daily from 9 a. in. to 12: 30
p. in. and from 1: 30 to 5 p. in., hours designed to catch shift changes and lunch
periods at the plant. In addition, on the first and last Fridays of each month,
days following paydays, a union steward, Alice Milewski, was employed by the
Union to sit in the plant cafeteria from 10: 30 a. in. to 4 p. in. for the sole pur-
pose of accepting dues payments. In addition, from time to time, employees
were warned concerning delinquency and possible loss of employment by notices
posted on the plant bulletin boards, and union, stewards were given lists of
delinquents whom they contacted and urged to pay their dues. On occasion,
foremen also warned delinquent employees to pay their dues. These efforts
were not always successful, probably in part because the local constitution
(part 6, article 2) forbade the imposition of fines or assessments as penalties
for nonpayment of dues, and in part because employees did not take the warn-
3 The local is headquartered at Camden It covers ,a wide geographical area, including a
substantial part of the State of New Jersey. The instant plant is in District 7 of the local-
STANDARD BRANDS, INCORPORATED 745
ings seriously. Thus, as Steward Milewski testified, in May 1949 she "told
[employees] that if they didn't pay their dues, people that I see that were de-
linquent, I told them if they didn't pay their dues they would be fired. Some put
zt off as a joke."
Directly responsible for the collection of union dues is the union business
agent or business manager in charge of the particular plant. He is under the
direction of, and takes his orders from, the local's executive board. The busi-
ness agent for the Standard Brands plant, in District 7 of the local, and the
person in charge of the office maintained near the plant, is Charles B. King.
The evidence indicates that as early as August 1948 King was having diffi-
culty collecting dues at Standard Brands. Thus, sometimes in that month
the following notice on the local's stationery was posted on the plant bulletin
boards:
NOTICE
ALL MEMBERS DELINQUENT IN DUES MUST BE PAID UP TO DATE
ON' OR BEFORE FRIDAY, AUGUST 20, 1948.
FAILURE TO COMPLY WILL RESULT IN THE LOSS OF YOUR JOB.
CHARLES B. KING,
Business Agent.
The minutes of the September 15, 1948, meeting of the executive board indicate
that the Union was experiencing financial difficulty
In January 1949 another notice worded similarly to that of August 20, 1948,
was posted on the plant bulletin board. This notice set a deadline of January
31, 1949. But the threat apparently was not strictly enforced. Thus Union
Steward Michael Simone, one of the present complainants, told by Business Agent
King at about this time that he would have to pay his dues even though he was a
steward, was then delinquent from April 1948. Simone did not pay his dues until
February 4, 1949; but his discharge was not sought.
Delinquencies continued to be substantial. Union President Schachter and
Business Agent King discussed various methods of decreasing them. On March
21, 1949, the union sent the Company a list of seven employees, with the state-
ment that they were delinquent in dues and requested that unless the delinquency
was cleared up within 7 days, they be terminated in accordance with the provi-
sions of the bargaining contract. Named on this list were two of the present com-
plainants, Paul Cemelli and Nancy Ripacandida, who, like Steward Simone, were
discharged in May when they were again delinquent in dues. The Company
thereupon notified the seven On March 29, 1949, the Union sent the following
letter to the Company :
MARCH 29, 1949.
The following members have failed to clear up their delinquency in dues
since our notice to you on March 21, 1949.
Eleanor Gentile
Sam Spinelli
Therefore Local 56, requests that you invoke article 1.3 of our contract
and terminate their employment.
I will appreciate your attention on this matter. With*kind personal
regards,
CHARLES,B. KING,
Business agent.
Prior to the Company's receipt of the March 29 letter, King telephoned the
Company's personnel manager, F. S. Betterton, and told him it was in the mail,
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but to disregard the request as to Spinelli. Upon receipt of the letter the Com-
pany discharged Gentile.'
Two days later, on March 31, 1949, the Union notified the Company, by letter,
that 16 other employees were in arrears in dues. It requested their termination
unless the delinquency was cleared up within 7 days. Upon receipt of this letter
the Company notified the affected employees. Whether all paid their arrearages,
or whether instead the Union decided against further action, is not disclosed
by the record. In any event the Company, hearing nothing further from the
Union, did nothing further itself.
In mid-April 1949, 400 of the plant's 900 employees were still delinquent in
dues. At its April 19 meeting, President Schachter and Business Agent King
brought the problem to the union executive board, Schachter told the executive
board that the financial position of the Union was worsening, and that because
of the high ratio of delinquency at Standard Brands, the Union would have to
establish a "definite policy in enforcing dues payments." One member of the
executive board suggested that all those automatically suspended under the
international constitution-that is, 40 days in arrears-should be discharged.
To this King and Schachter demurred ; Schachter stating that the discharge of
400 employees would disrupt the operations of the plant and jeopardize the
employment of those who remained ; King saying that the Union would lose
many members and its representative status. A motion was nevertheless made
to request the discharge of all persons automatically suspended under the inter-
national constitution ; but was defeated. Following further discussion the
board, by vote, instructed Business Agent King to make every effort to collect
the outstanding dues ; and, failing that, on the last Friday in May to request
the discharge of any employee more than 3 months in arrears. This action
meant that anyone whose dues for February were paid by May 27 would not be
affected, even though he was in arrears for March, April, and May. For obvious
reasons, this decision was not publicized to the membership.
In April therefore King sent out letters to those in arrears. Stewards also
notified them. Thus, complainant Cemelli testified, Steward Simone, himself
delinquent since January, warned Cemelli about being in arrears. It will be
recalled that Cemelli's name was on the delinquent list sent to the Company on
March 21, 1949.
The letters sent out by King in April were as follows :
DEAR MEMBER : Our records indicate that you are delinquent in dues to
the amount of $____ for the following months.
This maybe an oversight on your part and we feel sure that you will clear
this matter up as soon as possible. -
All dues are payable in advance, anyone being delinquent is subject to
suspension from the Union, which may ultimately result in loss of
employment.
This notice to you may also indicate that our office has made a mistake,
if so, please call at our office, so that we may correct same as soon as
possible.
Hoping you will give this matter your earliest attention, I am,
Your truly,
CHARLES B. KING,
Business Representative.
4 The evidence Indicates that even here the Union was pursuing a policy of leniency. As
late as May 31 Cemelli and Ripacandida had not paid dues for any part of 1949. But note
that their discharge was not requested in the March 29 letter, though they were then
delinquent at least 3 months. What the circumstances were with respect to Gentile and the
others mentioned in the March letters Is not disclosed.
STANDARD BRANDS, INCORPORATED 747
As a result, apparently, of the April effort, delinquency dropped in early May
to about 160. About May 10, King sent similar letters to those still in arrears.
While some 9 of the 17 complainants denied receiving these May letters, an
issue, for reasons to be indicated, unnecessary to decide-the evidence estab-
lishes that letters were sent. Thus, King testified that they were mailed to all
delinquents in May. All the complainants were delinquent at that time. Other
employees, including at least one of the complainants, received them. In addi-
tion, at least some of the union stewards, provided with delinquent lists by
King, contacted employees respecting their arrearages. On Friday May 27, 1949,
Milewski, as usual, was in the plant cafeteria from 10:30 a. in. to 4 p. m. to
receive dues payments.
As a result of this campaign at the close of the day on May 27, the deadline
set by the executive board, only 21 persons remained who were more than 3
months delinquent in dues. There was still, of course, a substantial number
delinquent to a lesser extent.
C. The discharges
On the evening of May 27, 1949, therefore, Business Agent King sent the
following letter to the Company :
MAY 27, 1949.
MR. F. S. BETTERTON,
Personnel Manager, Standard Brands, Incorporated,
16th and Riverfront , Hoboken, Nerve Jersey.
DEAR MR. BETTERTON : The following persons are delinquent in dues :
Henry Blunt
Mary Borkowski
Louis Bucci
Paul Cemelli
Marie Crawford
Thomas Debnam
Sarah Florio
Grace Gustaferro
Kathleen Kernaghan
Peter Kominski [sic]
Patricia Mulheran [sic]
Anne Mulvaney
Nancy Ripacandida
Ellen Rinaldi
Frank Romano
Martin Shipe
Michael Simone
John Thorpe
Edward Unalt
Louise VanNest
Chester Wyzykowski
Therefore, Local 56, requests that you invoke Article 1.3 of our contract
and terminate their employment.
I will appreciate your attention td this matter. With kind personae
regards.
Very truly yours,
CHARLES B. KING,
Business Agent.
May-31
The plant was closed Saturday May 28, Sunday May 29, and May 30, Memorial
Day. King's letter was received by Personnel Manager Betterton shortly after-
9 a. in. on Tuesday May 31. Betterton took it to Plant Manager Bowie, whose re-
action, he testified, was that it was "a great number of people ... to be-
terminated for non-payment of dues." Bowie and Betterton then checked the-
language of the security clause of the contract, following which Bowie in-
structed Betterton not to take any action until he had heard further from Bowie.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bowie then telephoned the legal department at the Company's home office
in New York and, after some delay apparently occasioned by study of the letter
and the contract in New York, was informed that the request appeared to be in
,order. However, it was suggested to Bowie that inquiries be made of the
Union as to whether the employees had had opportunity to pay their dues.
Bowie thereupon instructed Betterton to make such a check with the Union,
and if the response was affirmative, to process the discharges.
It was now near noon. Betterton telephoned Business Agent King, who in-
formed him that letters had been sent to all the named employees at their homes.
In the same conversation Betterton told King that two of the group, Crawford
and Gustaferro, were no longer employed.
Consequently, at about 12: 30 p. m. Betterton prepared discharge notices for
the remaining 19 employees named in the letter. Two, Thorpe and Mulhearn
(Owens) were, respectively, on vacation and leave of absence. Their notices
-were mailed to their homes. The remaining 17 notices were sent to the super-
intendents of the departments concerned. The notices were in substantially
the following form :
In compliance with letter received from the Union, dated May 27, ------
is to be terminated immediately.
The reason for termination to be used is "at request of Union for non-
payment of dues, in accordance with the contract."
Four of the 17 (Mulvaney, Bucci, Cemelli, and Florio), who were then on late
shifts, were notified of their discharges before beginning to work and were
not permitted to start the shift. The other 13, who were at work at the time,
-were allowed to complete the shift. As to them, Personnel Manager Betterton
-testified, their discharges were made effective as of the end of the shift. Plant
Manager Bowie's testimony is that he intended the discharges to be effective
.as of the end of the day.
There is denied testimony to the effect that six of the complainants (Cemelli,
Kaminsky, Blunt, Simone, Shipe, and Florio), either by telephone or in person,
talked to Union Business Agent King on May 31, after being notified of their
discharge, and offered to pay their dues. It is unnecessary, for reasons ad-
verted to hereinafter, to resolve this conflict in testimony. There is no evi-
dence of offer to pay their dues by any other of the complainants on May 31.
'There is also undenied testimony by three of those six (Cemelli, Blunt, and
Shipe) that on the same afternoon they reported to their respective supervisors
that, after receiving their discharge notices, they had called King and offered
to pay their dues, and that King had refused to accept them. Their further
testimony, in substance, is that in each instance the supervisor expressed
sympathy but said that there was nothing he could do. In the cases of Blunt
and Shipe they assertedly gave this information to their supervisors. (Foremen
Ramsey and Berschoner, respectively) before 3: 30 p. m., the end of the shift
:and the time when their particular discharges were made effective. Cemelli,
however, working on a late shift, had, been notified at home of his discharge
in the afternoon and was not allowed to begin work that day.
June 1, 1949
The Reinstatement of Romano and Unalt
At the time of their discharge, two of the employees, Frank Romano and
-Edward Unalt, protested to their foreman, Ramsey, that they were not de-
linquent in dues. On the morning of June 1, Foreman Ramsey reported this to
Personnel Manager Betterton, who in turn relayed it to Plant Manager Bowie.,
STANDARD BRANDS, INCORPORATED 749
The latter instructed Betterton to check the matter with the Union. Upon
inquiry, Business Manager King ascertained that Romano had given his dues
and dues book to Steward Simone prior to the May 27 deadline ; but that Simone
had neglected to turn them in e
In Unalt's case it was learned that he had come into the union office prior to
the May 27 deadline and informed the office girl that he was unable to meet his
delinquency by May 27 ; but said that he would do so during the following week.
The office girl, without the knowledge of King, acquiesced in that arrangement.
Upon learning this, King permitted Unalt to pay his dues on June 1. He then
informed Betterton that Unalt's and Romano's names had been erroneously
included on the discharge list and asked that they be reinstated. The Company
immediately acquiesced.
The Company's Investigation on June 1
Betterton reported these developments to Plant Manager Bowie. The latter
then contacted the various superintendents and directed them to ascertain
whether any other of the dischargees had made any comment to supervisors
when notified of their termination. The superintendents later reported to Bowie
that other than Florio and Simone the dischargees had made no significant
comment. Florio was reported as having said that other employees "haven't
paid their dues either" ; Simone said that he'd "pay the Union nothing" ; that
it "owed him dough."
The June 1 and 2 Meetings
On June 1, 1949, various of the complainants (Simone, Bucci, Ripacandida,
Blunt, Kernaghan, and Shipe), either individually or as part of a group, met
with Union Business Agent King. There is some dispute as to what was said
in these conversations. The testimony on behalf of the complainants, denied by
King, is to the effect that they offered to pay their dues and asked for reinstate-
ment in the Union and to their jobs ; that King refused to accept their proferred
dues and said that he had no authority to reinstate them either to the Union:
or to their jobs. King denied that any of the group offered dues or requested
reinstatement in the Union. His version is that they asked only to be reinstated
to their jobs, and that as to that he replied that he had no such authority. King
conceded,' however, that he also informed the men that he could not reinstate
them in the Union ; that that was a matter for the Union's executive board. It
seems evident from the entire testimony of all the participants that the com-
plainants on June 1 indicated to King their desire to remain members of the
Union and their willingness to do whatever was necessary to secure that result,
including the payment of dues ; and that King replied that he had no authority
to effect such a result. It is so found.
However, upon request of some of the men, King agreed in those conversations
to arrange a meeting with Local Union President Schachter.
The meeting with President Schachter was held the next day, June 2. Present
were Schachter, King, Simone, Kaminsky, Blunt, and Kernaghan.
Here again there is some conflict, unnecessary to resolve. The complainants'
version, in substance, is that they requested reinstatement in the Union and to,
their jobs and offered to pay their dues, and that these offers were rejected. The
5 There is no suggestion of impropriety on Simone 's part. Questioned by King on June 1,
he readily 'admitted the payment and gave King Romano's dues book with the money still,
inside.
6 The findings in this paragraph are based on the testimony of Bowie. None of the-
superintendents testified.
'750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony of King and Schachter is that the complainants merely asked for re-
instatement to their jobs and inquired as to what Schachter could do for them.
The testimony is in substantial agreement that Schachter stated that he could
-do nothing, but that the complainants could appeal their suspensions to the
Union's executive board, which was meeting several weeks hence. When the
•dischargees protested that they could not be out of work so long, Schachter agreed
to call a special meeting of the executive board on the following Wednesday,
.June 8, at which the complainants could appear, and the meeting broke up.'
Events between June 2 and 6
On June 2, 1949, Shipe returned to the plant for his pay check and asked
Personnel Manager Betterton about the possibilities of returning to work.
Betterton replied that there was nothing he could do. On that occasion Shipe
stated that he "just neglected to pay" his dues. During the following week
_Betterton had a conversation with Cemelli much to the same effect.
Around this time, or during the following week, Shop Steward Sarris, accord-
ing to his undenied testimony, told Personnel Manager Betterton, in substance,
.that he had accompanied Shipe to the union office on May 31; that Shipe had
there offered to pay his dues ; and that Business Agent King had responded that
the matter was out of his hands. Sarris' further testimony is that Betterton
replied that Shipe would have to straighten out the matter with the Union before
he could be put back to work.
Sometime prior to the June 8 meeting of the executive board, Sarris also
:spoke to Union President Schachter on behalf of Shipe, asking either for his
reinstatement or initiation as a new member ; at the same time stating certain
family reasons for Shipe's delinquency. Schachter replied, according to Sarris'
-undenied testimony, that he did not see how an exception could be made in
-the case of one so far delinquent in his dues as Shipe (5 months) ; but that
the matter was out of his hands and that if the executive board found Shipe's
excuses acceptable, it could reinstate him.
On June 5, 1949, John Thorpe returned from his vacation and found the
notification of his termination. On the following day, according to his undenied
testimony, he saw Business Agent King and offered to pay his dues, explaining
that he had told Simone early in May, when paying part of his delinquency,
.that he would pay the remainder upon his return from vacation. King refused
.the tender, saying that the whole matter had been referred to the executive
board.
The Executive Board Meeting
On June 8, 1949, the union executive bbard met at Camden, New Jersey,
to consider the_appeals of the suspended members. All were sent notices
informing them of the date of the meeting , and of their right to appear and
to appeal the suspension. The Union later reimbursed all who appeared for
7 There is also some testimony regarding heated words which passed between Blunt and
'Schachter at one point in this meeting. The testimony as to the exchange is so divergent,
however , that no reliable finding can be made. The versions range from that of Blunt to the
.effect that he asked Schachter if he was discriminating against Blunt and Simone because
.they were formerly "C . I. O." ; Schachter responding that "I ' ll cut your throat before you cut
mine" ; to Schachter 's version to the effect that Blunt said to Simone , "Let's get out of here
before I punch this guy in the mouth ," Schachter responding that he would "get the first
punch in." Other accounts of the exchange, themselves not reconcilable , do not support
either Blunt's or Schachter 's version.
There is no other evidence of activity by Simone or Blunt on behalf of any other union or
oother suggestion in the evidence that Blunt's and Simone's discharge was sought for reasons
.other than dues delinquency.
STANDARD BRANDS, INCORPORATED 751
the expenses of the trip from Hoboken to Camden . Simone, Blunt, Thorpe,
Cemelli, Florio , Kernaghan , and Kaminsky appeared in person ; Bucci and Shipe
authorized Simone to represent them. None of the other complainants appeared.
Steward James Griffin accompanied the group and spoke before the board on
their behalf.
Business Agent King outlined the situation to the executive board and described
the action that had been taken ; pointing out that letters were sent out to all
the delinquents on May 10 , 1949, and that none of those addressed to the 17
discharged employees had been returned . Kernaghan admitted having received
such a letter ; the rest of those present denied it.
Each of the group then addressed the executive board on his own behalf,
stating various personal reasons why they had not paid their dues . There was
general discussion of the equities of the situation . Thereafter , the board went
into executive session, returned to the room , and announced that, while it
was sympathetic to the cases of several of the group , it could make no exceptions.
The appeals were consequently denied.
On the following day, June 9 , 1949, unfair labor practice charges were filed
by Simone.
None of the complainants has since been reinstated either to his job or to
the Union.
The June 17 Request for Membership in the Union
On June 17 , 1949, counsel for complainants Simone, Thorpe , Bucci, Florio,
Cemelli, Ripacandida , Kaminsky , and Blunt wrote to the Union on their behalf
requesting reinstatement or new membership in the Union. The letter stated
in part:
On behalf of the foregoing people we now make application for reinstate-
ment to membership in the union and the resultant return to employment by
offering to pay in full all back dues. In addition to paying all back dues, if
there be any reasonable fine or assessment , this will be paid . In the event
you refuse to accept our application for reinstatement through the payment
of back dues as outlined above, . . . application is hereby made for member-
ship in the union through the payment of initiation fee and such other steps
as shall be required by the Constitution and bylaws of the local.
No reply was received to this letter.
The June 17 Letter Requesting Reinstatement to Work
On the same day counsel for the same complainants wrote to the Company
requesting their "reinstatement" with back pay . This letter stated that im-
mediately upon notification of discharge the employees had offered to the Union
to pay in full all arrearages in dues, but that this offer had been refused by the
Union. The letter further advised the Company of the offer made in the June 17
letter to the Union.
No reply was received to this letter.
Upon receipt of this letter Company Attorney Haught asked for a meeting
with the Union . This meeting, attended by Haught ,• Plant Manager Bowie,
Personnel Manager Betterton , Union President Schachter , Business Agent King,
.and Union Attorney Friedland was held on June 21 or 22. Haught stated that the
.Company had received a letter asking for the reinstatement of some of the
employees . He inquired what the Union's position was. Schachter responded
that the Union's position was that the employees had been suspended ; that this
action had been affirmed upon appeal by the executive board ; and that the Union
considered the matter closed. It was further indicated that the Union would
have objections to reinstatement at that time because of its effect upon senior-
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity.8 Haught inquired whether the employees had been notified of their delin-
quency prior to suspension and whether the Union's action had been in accordance
with its constitution and bylaws. Schachter responded in the affirmative to
both questions and the meeting terminated.
The June 27 Conference at the NLRB
On June 27, 1949, a conference of the parties was called by the NLRB Regional
Office to ascertain their positions with respect to the pending charges.
At this conference, the company representatives, requested by counsel for the
complainants, Sidney Reitman, to reinstate his clients, stated, to quote Reitman's
testimony, that "they would leave this question for determination by the Board,
and whatever the Board decided that is what they would do." This position
was reiterated by Company Counsel Furlong in late July or early August 1949
when Reitman approached him with a request that the Company "put these
people to work."
On June 28, 1949, the day following the conference at the NLRB, Simone, Blunt,
Kernaghan, Kaminsky, Thorpe, and possibly others, called on King at the union
office and asked for, in the alternative, either reinstatement or membership
in the Union as new members. King, according'to the testimony of some of the
complainants, replied that the executive board had decided the question, and
that there was nothing that he could do.
On the same day, the same group called on Personnel Manager Betterton
at the plant and requested reinstatement. After consultation with Plant Man-
ager Bowie, Betterton informed the group, in substance, that the Company would
await the decision of the NLRB since the case was then pending before it.
Either Simone or Thorpe said, to quote Betterton's testimony, "we are just
here to follow our channel of instruction, to get the answer of yes or no as to
whether the Company will reinstate us as Standard Brand employees." In
the same conversation Betterton was informed that the employees had requested
reinstatement or new membership in the Union, and that such request had been
denied. There is also testimony by the complainants, denied by Betterton,
to the effect that they also asked employment as new employees It is unneces-
sary to resolve this conflict.'
D. Conclusions
The case raises novel questions in the construction of the provisos to Section
8 (a) (3) of the statute.
Section 8 (a) (3) authorizes the execution and enforcement of labor agree-
ments requiring union membership as a condition of employment under certain
limited conditions. It is conceded that, in general, most of these conditions
have been met here. As required, the Union was the representative of the
employees, and a majority of the employees had authorized the Union by secret
ballot in a Board election to make a union-shop contract, and such a contract
had in fact been executed and was in force at the time of the action herein.
This exemption in the Act from the general ban on discrimination is, however,
itself qualified and limited by the following proviso :
Provided further, That no employer shall justify any discrimination against
an employee for nonmembership in a labor organization (A) if he has
s Pesumably a reference to the fact that the plant was then in a layoff period. Rein-
statement might have affected the order of layoff.
9 The finding as to the date of this conversation and of the date of the visit to the union
office is based on a reconciliation of the testimony . Both were on the same day, but placed
by some of the complainants as prior to their first consultation with their attorney . Better-
ton's testimony , corroborated by the complainant 's version as to Betterton 's response , is that
it occurred on the day after the June 27 conference at the Regional Office.
STANDARD BRANDS, INCORPORATED 753
reasonable grounds for believing that such membership was not available
to the employees on the same terms and conditions generally applicable
to other members, or (B) if he has reasonable grounds for believing that
membership was denied or 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 acquiring or retaining membership ; .. .
In general , Section 8 (b) (2) forbids a union to cause or attempt to cause
an employer to discriminate against an employee, where the discriminations
sought would constitute a'violation of Section 8 (a) (3). George C. Quinley,
92 NLRB 877; Ambassador Venetian Blind Workers' Union, Local 2565, 92
NLRB 902.
The gist of the complaint herein is that the Company's discharge of the com-
plainants , the refusal to reinstate them to their jobs and assertedly to rehire
them, was violative of those provisos, and that the Union's action was violative
of Section 8 (b) (2).
The leading Board decision, up to this time, on the construction of the provisos,
and the most apposite here, is that of Union Starch & Refining Company, 87 NLRB
779, enfd. 186 F. 2d 1008 (C. A. 7). In that case three employees subject to a
valid union-shop contract tendered to the union business- agent the amount of
initiation fees and dues uniformly required for membership. These tenders were
rejected, the union taking the position that to qualify for membership, the em-
ployees must, in addition to the financial payment, meet other conditions: (1)
Attend the next regular union meeting and (2) take the union obligation or oath
The three employees refused to comply with these additional conditions. Upon
union demand they were then discharged for nonmembership in the union. The
employer being aware of the facts, the Board, with two members dissenting,
held that proviso (B) of Section 8 (a) (3) forbade the discharge. The majority's
conclusion was that the conditions imposed upon membership amounted to a
denial of membership "for reasons other than the failure of the employee to
tender the periodic dues and the initiation fees uniformly required as a condition
of acquiring or retaining membership." The Board said, in interpreting the
provisos:
As we read the statutory language, the provisos to Section 8 (a) (3) spell
out two separate and distinct limitations on the use of the type of union-
security agreements permitted by the Act. Proviso (A) protects from dis-
charge for nonmembership in the contracting union any employee to whom
membership is not available for some discriminatory reason ; i. e., any reason
which is not generally applicable. Proviso (B) protects employees who have
tendered the requisite amount of dues and initiation fees and been denied
membership for any other reason, even though that reason be nondiscrimi-
natory.
The first question to be decided here is whether the complainants-were, under
the statute and the contract, vulnerable to discharge because of nonpayment of
dues, and whether their membership was terminated. Both questions must be
answered in the affirmative. As has been seen, the local union's constitution
provided that "dues must be paid" in advance, "on or before the 10th day of
the month" ; and members "failing to pay their dues on time may be suspended."
The provision of the international constitution is to the effect that 40 days'
delinquency results in automatic suspension. All the complainants were more
than 40 days delinquent. Each was more than 3 months delinquent. Each
was thus within the formula devised by the union executive board. All to whom
that formula was applicable on May 27 were discharged. It is found that the
complainants were amenable to the termination of their union membership.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the question as to whether their membership was in fact terminated , it will
be noted that the term "termination" includes "suspension" from - membership ;
The Electric Auto-Lite Company , 92 NLRB 1073 : "We construe the term [ termi-
nation of membership ] necessarily to encompass the suspension of a member from
good standing." - The automatic suspension provision of the international con-
stitution seems conclusive on the question of whether there was a termination.
Being more than 40 days delinquent, the complainant9 were automatically sus-
pended under article VII . The provision of the local constitution , part 6, pro-
viding, in effect, for permissive suspension by the local for more than 10 days
delinquency , is not in conflict with article VII. It is legislation on a situation not
covered by article VII, namely , the status of members more than 10, but less than
40, days in arrears . But even if they are in conflict, the international constitution
must prevail over that of the local.
But, in any event , the complainants' membership was also terminated by
affirmative action of the local union. Local Union President Schachter testified
that at the time of the discharges the complainants were no longer members of
the Union. The local union's conduct corroborates that assertion. The action
of the local executive board in April, in instructing Business Agent King to seek
the discharge of those more than 3 months delinquent after May 27, and King's
execution of that policy, constituted and was the equivalent of suspension of the
complainants from the local union on May 27 , under the local's constitution.
The contract requiring retention of membership in the local union as a condi-
tion of employment , and the complainants being without such membership after
May 27, 1949, they were amenable to discharge, therefor. They were so dis-
charged. Unless, therefore, as to the complainants (1) the Union imposed sus-
pension or denied membership in a discriminatory manner or ( 2) denied or
terminated their membership "for reasons other than [ their ] failure .. . to
tender the periodic dues . . . uniformly required," dismissal of the complaint
would appear to be required . This, irrespective of what the beliefs or suspicions
of the Company may have been . As I interpret Section 8 ( a) (3) and 8 (b) (2),
if the action of the Union was legitimate, the employer's conjecture to the con-
trary cannot taint the Union's action ; nor can it affect the legality of his own
conduct. The net effect of the provisos to Section 8 (a) (3), as I construe them,
is to put the employer on notice that, if he has reasonable ground to believe that
the union is acting unlawfully , he enforces a security clause at his peril. He
assumes the risk that the union's action is legitimate . If it is, his own reason-
able doubts do not create an unfair labor practice , either by himself or by the
union , where none would otherwise exist. In sum, given a valid union-shop
clause and no evidence of discriminatory motivation on the employer 's part, the
legitimacy of the union's action in depriving an employee of membership is a
complete defense to charges of 8 (a) (3) based upon a discharge for loss of
union membership 1°
There being no evidence, indeed no suggestion, of discriminatory intent on the
Company's part here, if the Union's action was lawful, there is no necessity to..
inquire further.
The next question is whether the Union's letter of May 27 requesting the dis-
charge constituted adequate basis for discharge, since it did not affirmatively
"I This situation is, of course , to be distinguished from others where an employer's evalua-
tion of the circumstances may be of material bearing in determining whether there has beei-
a violation of Section 8 (a) (3). Ready examples are a discharge effected by the employer
for discriminatory motives ; or where he seizes upon a pretext An employer entitled to
discharge an employee for legitimate reasons, may not discharge him for illegitimate ones-
The difference lies In the existence of discriminatory motives on the employer 's part In one
case, and his belief as to the existence of discriminatory motives on the union's part in the
other case The situation, under discussion is the latter, and not the former, one
STANDARD BRANDS, INCORPORATED 75&
recite that the employees' membership had been suspended or terminated. True
the letter could have been phrased more artistically ; but no particular phrasing
is necessary. Notice, not incantation, is what is required. In the light of the
similar form of the March letters from the Union to the Company, and in the light
of- its specific reference to the union-shop clause of the contract, I find that the
May 27 letter contained the implicit assertion that the complainants' union
membership had been terminated for dues delinquency. The Company so
construed it.
There is no substantial evidence of union motive to discriminate between
members on the basis of union activity. As has been noted in footnote 7 supra,
in Blunt's account of the June 2 meeting, he asked Schachter whether the latter
was discriminating against Blunt and Simone because they were formerly
"C. I. C."; Schachter replying "I'll cut your throat before you cut mine." I
have already indicated that the various accounts do not permit a reliable finding
on the incident. But in any event, this is the only suggestion of rival union
activity on the part of any of the complainants. The evidence will not warrant
a finding that the Union was seeking to penalize Blunt and Simone for union
activity.
The only other suggestion of such a possible motive is in the testimony of
Shipe and Sarris. Their evidence is to the effect that when they saw King on
May 31, the latter told Shipe, in substance, that the Union had made a "mistake"
in Shipe's rase, because Shipe was a "staunch supporter of the Union"; and
further, that King endeavored, without success, to get Shipe a job at another
company. Nevertheless, King admittedly told Shipe that he could do nothing
to get Shipe reinstated to his job or to the Union ; and sometime later, according
to Sarris, Schachter told Sams that he could make no exceptions for Shipe-
If anything, this testimony estab!islies that the Union's policy was applied
as rigorously to staunch union supporters as to others.
Proviso (A)
As has been noted, the Board concluded in the Union Starch case that the
terms and conditions of membership referred to in proviso (A) must be non-
discriminatory terms. The General Counsel contends here that the distinction
drawn between grades of delinquents was discriminatory; that is, that it was
illegal for the Union to seek the discharge of members more than 3 months in
arrears, while permitting those of lesser delinquency to continue working. The
argument in this respect seems to run about as follows : (1) "Delinquency"
being the basis for the terminations and discharges, the distinction resulted
in membership not being available to the greater delinquents on "the same
term and conditions applicable" to lesser delinquents-a violation of proviso.
(A) ; and (2) since lesser delinquents were permitted to pay up while the
greater delinquents were not, "failure . . . to tender the periodic dues" was
not "uniformly" followed by deprivation of membership-a violation of
proviso (B).
I do not believe that the General Counsel's conclusions follow Mere delin-
quency was not the ground for seeking the discharges, but rather delinquency
of an aggravated standard. The uniformity required by the provisos to Section
8 (a) (3) is not the uniformity of the tax office, where all who do not pay
must be penalized. Nor do the provisos assume a tort theory of joint judgment,
wherein the release of one feasor is the release of all. The provisos to Section
8 (a) (3) do not forbid reasonable classification
Some effective method of clearing up the delinquency was obviously necessary.
If the General Counsel's position is correct, the only waj' in which it could
legally have been done was by seeking the discharge of all who were in arrears.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The exact number of employees who were delinquent on May 28, 1949 , is not,
disclosed . But the effect that such a policy would have had on the operation
of the plant may be judged from General Counsel's Exhibit No . 14. That
exhibit shows that on May 28, 1949, excluding the complainants , there were
still 114 employees who had not paid their April dues ; and of these, 81 had not
paid their March dues. How many persons were delinquent in May dues on
May 28 does not appear . Assuming that there were none-a highly improbable
situation-unless a distinction could legitimately be made between grades of
delinquents , the Union could not have enforced the contract clause except by
demanding the discharge of these additional 114 employees . Such a result would
seem to be completely contrary to the purposes and policies of_ the statute. The
Act does not require unions to seek the discharge of employees who do not pay
their dues ; it merely permits them to. To hold that a union cannot enforce
dues payments under a union-security clause except by securing the discharge
of all members in arrears is to hold , in effect, that what the statute has labeled
permissive must be interpreted as mandatory . I do not see any such purpose
in the law. The statute should not be construed so as to discourage a union,
under peril of waiving its union-shop clause altogether , from pursuing a lenient
policy in the enforcement of penalties for dues delinquency.
In the case of The Electric Auto-Lite Company , 92 NLRB 1073 , the Board
said , in construing proviso (B)
The statute specifies that the "periodic dues" be "uniformly required."
This we read essentially to include the requirement that such dues be
charged to all members alike or that any distinctions in amount be based
upon reasonable general classifications . [Emphasis supplied.]
If a union may, under proviso (B), establish reasonable classifications as to
amount of dues required , it would appear that it ought to be entitled to do the
same thing with regard to vulnerability to membership termination of individuals
already liable to discharge under that proviso. I find that it may do so.
It is likewise my judgment that proviso ( A) also permits reasonable general
classification in establishing "terms and conditions [of membership ] generally
applicable to other members." Indeed, no other construction seems possible.
Thus, (1) the use of the modifying word "generally" in that proviso indicates
that it is generic and not universal uniformity that is required ; ( 2) the Board's
decision in the Union Starch case to the effect that unavailability of membership
under proviso ( A) is legitimate if it is nondiscriminatory, necessarily assumes
the validity of some type of classification ; and (3 ) if classification were not
possible under proviso ( A), half that proviso and all of proviso ( B) would
be completely redundant . That is to say, proviso ( A) would then read,
"if [the employer] has reasonable grounds for believing that such member-
ship was not available to the employee." The remainder of proviso (A) and
the whole of proviso ( B) would be surplusage . But, as the Board said in the
Union Starch case, the provisos to 8 (a ) ( 3) do not duplicate each other, and
"have ample independent scope."
Degrees of dues delinquency appear to me a reasonable basis for classification
under both provisos . So long as the policy is uniformly applied for the purpose
of discouraging delinquency , and union or concerted activity or nonactivity are
not factors in the classification , a union may make reasonable distinctions
between members delinquent in dues as to eligibility for termination of member-
ship and consequent loss of employment . And where , as here, notice to the
membership of such classification would result in the encouragement , rather
than discouragement , of delinquency , the union may make such classification
without notice.
STANDARD BRANDS, INCORPORATED 757
The distinction drawn by the Union between members more than 3 months
delinquent and those less so, seems to me reasonable . It was applied without
reference to union activity and for the purpose of discouraging delinquency.
If its application was uniform , the Union did not violate Section 8 (b) (2) by
permitting members not more than 3 months delinquent in dues to "reinstate
themselves" by paying their delinquent dues, while denying that privilege to
members more than 3 months in arrears. The minutes of the April 19, 1949,
meeting of the union executive board disclose the propriety of the Union's
motives in establishing the classification. It was extremely reluctant to press
for wholesale discharges because of their effect on union membership and the
operation of the plant.
Whether the Policy was Uniformly Applied
It is suggested , however , that even if such classification is valid if uniformly
applied , it was applied here in a discriminatory and nonuniform manner. The
cases of Romano and-Unalt are said to establish such centention per se; and if
not per se , are said to evidence discriminatory treatment of complainants Florio,
Kernaghan , and Thorpe . I do not find these contentions sustained.
All the 17 complainants were within the executive board's formula. The
discharge of all was sought and secured. There were no others within the
formula. Romano had given his dues money to Simone , the union steward,
a payment which the Union could scarcely have done other than recognize,
under the circumstances . Unalt had made arrangements for payment with
the union office prior to the May 27 deadline ; an arrangement which both
King and Schachter disapproved upon learning of it, but which King felt bound
to honor. I find no discrimination here.
Nor-does the treatment of Florio, Kernaghan , and Thorpe evidence discrimi-
nation when contrasted with that accorded Romano and Unalt.
Thorpe, delinquent since September 1948, paid his October through January
dues to Steward Simone on May 12, 1949 . At the same time Thorpe told Simone
that he was going on vacation and would pay the remainder of his dues upon
his return . Thorpe went on vacation on May 27, returning June 5 to learn that
he had been discharged.
Early in May , Kernaghan received King's letter , set out heretofore , informing
her of her dues delinquency . She went to the union office and told the office girl
that she did not have the money, but that , "as soon as I had it, which would be
at the. end of the month, I would pay it." The office girl responded , "If you
haven't got it you better get it as soon as possible." Kernaghan 's further
testimony is that she had intended to pay he-r dues on the Thursday of the week
she was discharged ( June 2).
Florio, while admitting that she had on previous occasions been warned to
pay her dues , testified that on May 27 she offered her dues money to Union
Steward Hogrefe , but that the latter refused to take it because Florio did not
have her dues book. This testimony was denied by Hogrefe . The evidence
establishes that stewards regularly accepted dues money without the presenta-
tion of dues books, giving employees receipts therefor . Florio was a confused
witness. Other factors, unecessary to relate , cast doubt upon the reliability
of her recollection . I cannot credit her denied testimony.
Kernaghan 's account does not disclose any arrangement , as in the Unalt
case, for deferral of her payment till later in the month , and the response of the
office girl could scarcely have been so interpreted by Kernaghan. Moreover, it
will be noted that Kernaghan did not, as she had indicated she would, make
any attempt to pay her dues "at the end of the month."
986209-52-vol 97-49
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thorpe's is a more appealing case. He was in the process of liquidating, and
apparently making a good faith effort to meet, his delinquency. He made what
appears to mave been a mutually satisfactory arrangement with Steward Simone
to pay the balance of his arrears upon his return from vacation. Since the
Union recognized Romano's payment to Simone and Unalt's arrangement with
the office girl, though asserting that neither Simone nor the girl was authorized
to so act, to a disinterested observer it appears inequitable not to have recog-
nized equal merit in Thorpe's case. On the other hand the Union probably had
to draw an arbitrary line somewhere, and if it had excused Thorpe it would
have had difficulty justifying a refusal to recognize personal equity in other
cases. I am therefore constrained to hold that, appealing as the case of Thorpe's
is, neither his case nor those of Florio and Kernaghan evidence discrimination in
violation of proviso (A).
The General Counsel also contends that the Union's refusal to accord the
complainants reinstatement or new membership was a discriminatory applica-
tion, violative of proviso (A), of the international constitution's rules governing
reinstatement of delinquent members. This contention is based upon the hypoth-
esis, asserted in the General Counsel's brief, that under the international constitu-
tion membership was "available to any delinquent member who was automatically
suspended." I cannot concur in that hypothesis. While it is true that the inter-
national constitution (article VII, sections 1, 3, and 4) sets out the procedure
by and conditions upon which a suspended member may be readmitted there is
no provision therein granting suspended members the right to readmission. The
General Counsel's hypothesis not being sustained, his conclusion falls.
With respect to the allegation of violation of proviso (A) of Section 8 (a) (3),
it is thus seen that union membership was not available to other members on
terms and conditions inapplicable to the complainants. Union membership was
not available to any person in the same class as the complainants; and there was
consequently no illegitimate discrimination.
It is therefore found that there has been no violation of proviso (A).
Proviso (B)
Proviso (B) prohibits employment discrimination where the employer has
reasonable ground to believe that union membership was denied or terminated
for some reason other than failure to tender periodic dues and initiation fees
uniformly required. Tender is here required, though it is not under proviso
(A). In addition, the nondiscriminatory nature of the denial is immaterial.
Union Starch & Refining Company, 87 NLRB 779, 783, 784. If the rejection of
the applicant is-for any reason other than nontender, it is contrary to the proviso.
Manifestly, if the rejection is for nontender, the proviso is satisfied.
The classification of delinquents by the length of time they have been in arrears
has already been found not to be a violation of proviso (A). It is now likewise
found, for similar reasons, not to be violative of proviso (B). And for the same
reasons it was unlawful under proviso (B) to deny the complainants the right to
reinstate themselves automatically by paying their delinquent dues.
The General Counsel, however, urges other bases for finding a violation of
proviso (B). Among these is a contention which, as I understand it, is sub-
stantially to the following effect: (1) The Union had determined to exclude the
complainants "from further membership . . . under any and all circumstances" ;
(2) the complainants had indicated their immediate willingness to pay dues;
(3) the Union rejected both dues payments and offers to become new members.
Hence, the argument runs, the Union must have had some reason other than
nontender for termination of membership and denial of the various offers.
I do not find these contentions sustained. In the first place, I think them
STANDARD BRANDS, INCORPORATED 759
beside the point. The foundation upon which the General Counsel's case must
rest is that the suspensions and the discharges were invalid. If they were, there
is no need to inquire further ; both Respondents violated the statute . If, on the
other hand, they were valid , the Union 's motive for denying reinstatement or
new membership is wholly immaterial . So far as this statute is concerned, a
union may refuse or terminate membership at will, so long as it does not attempt
to affect the employee 's job. Once the complainants were validly discharged
they were no longer employees , and even if the Company refused to rehire them
because the Union would not admit them to membership , the iteration of that
determination by the Union is not in law causing or attempting to cause the
employer to discriminate ; however invalid the employer 's action may be. Other-
wise, a union would be required to accept every applicant for membership, a
conclusion not in accordance with the legislative history of the statute. See
Union Starch & Refining Company , 87 NLRB 779 , 787, footnote 23, where the
Board said :
... It should be noted that this decision does not impair the right of the
Respondent Union to prescribe its own rules with respect to the acquisition of
membership , a union privilege protected by the proviso to Section 8 (b) (1)
(A). Under our decision , a union may deny membership to an employee
upon any ground it wishes , but the only ground on which it can have a non-
member discharged under a union -security clause is the employee 's refusal
to tender initiation fees and dues.
Secondly , I do not interpret the evidence as supporting the broad conclusion.
that the Union had determined to exclude the complainants from membership
"under any and all circumstances ." What it does establish is that the Union
suspended them for failing to pay their dues, secured their discharge therefor,
and thereafter denied them the right to reinstate themselves by paying their
dues, and denied them membership as new members in connection with the cur-
rent controversy . But all these acts were bottomed upon the complainants'
failure to pay their delinquent dues on or before May 27 , 1949; a conclusion which
I do not understand even the General Counsel to contest. That being the fact
it can scarcely be argued that the suspensions or the denials of membership
were for reasons other than failure to tender periodic dues.
That some of the complainants may, as their denied testimony suggests, haver
offered to King to pay their dues before they had finally left the plant on May
31, seems to me immaterial . If made, there were no such offers until after the
complainants had been suspended ; and after they had been notified that they
were discharged . Those facts did not change because some of the complainants.
may have been permitted to complete their shift after being notified of their
discharge . ( Notice of cancellation of a union membership and the employ-
ment relationship as of a time certain had been served .) What the complainants
did thereafter could not serve to revoke that action , or to modify the legitimate
contractual rights and obligations of the Company and the Union , or to reestab-
lish a relationship already severed . Colgate-Palmolive -Peet Co., 338 U. C. 355.
Attention is also called to the fact that at the June 2 conference Union Presi
dent Schachter assertedly stated in substance that the Union was going to "make
examples" of the complainants ; the contention being that this statement
indicated a union purpose to inflict a "penalty " upon the complainants ; this
purpose being a reason for suspension other than the "failure . . . to tender
... dues." But any valid discharge under a union -security contract is in
the nature of a penalty , and has the effect of making an "example" of the
dischargee . Such motives are not invidious ; they are in fact the mainspring
of the union -shop concept; they exhibit legitimate union self -interest and a`
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of avoiding larger consequences. As the Company's brief puts it:
11. .. the reason for the Union's action was not that it wanted to reduce the
number of its dues-paying members ; rather its design was that its members
should pay their dues without allowing large arrearages to accumulate."
Nor was Union President Schachter's statement at the meeting between the
Compaaiy and the Union on June 21 or 22 to the effect that the Union would
object to the reinstatement of the complainants because of its effect upon
seniority, indicative per se of illegal motivation. If the complainants had been
validly discharged, the Union's position was justified. If they had not, the
position was merely reiterative ,of an illegal determination. But the illegality
must first be found in the antecedent conduct. By itself, the expression proves
nothing.
The "Last Chance"
It is also suggested that the Union ought to have permitted the complainants
a "last chance" to pay their dues before seeking their discharge.
It may he that the discharge of an employee for failing to tender dues and
initiation fees under a valid union-shop clause would be discriminatory if
the employee had no notice of the clause or his obligation. As to this question
there is no necessity for present decision. But it seems quite plain that where
he has notice of the obligation, the duty is on the employee to discharge it.
The statute refers to his "failure . . . to tender"; not his "refusal to pay."
There is no requirement for demand by the Union ; nor for unequivocal declaration
of unyielding determination on the part of the employee not to pay." Having
notice of his liability, it is up to him to meet it.
In the instant case each complainant admittedly had ample notice of the
dues obligation. The Union's action in March 1949 in giving the Company 7
days' notice, and the Company's action in notifying the employees of their
delinquency at that time did not estop either the Union or the Company from
enforcing the contract. A union-shop contract of which the employees are
cognizant, either actually or constructively, is itself notice of liability to
immediate discharge for dues arrearages. Even if the statute requires notice,
it does not require reiteration. It may be that if among those given a "last
chance" by the Union's March 21 and 31, 1949, letters, there were employees,
other than the present complainants, who were more than 3 months delinquent
at that time-it may be that under such circumstances the failure to give
a "last chance" to the complainants in May could be construed as discriminatory
within the meaning of proviso (A) and as indicating, within the meaning
of proviso (B), that there must have been other grounds for suspension of
the complainants than nontender of dues. This question I do not decide. There
is no evidence that any of the delinquents named in the March' 21 and 31 letters
were more than 3 months in arrears. It cannot therefore be found that the
class in which the complainants fell was subjected to different standards
from the class in which the March delinquents fell. It may be noted in this
connection that complainants Cemelli and Ripacandida were given a "last
chance" in March to pay their dues for which nonpayment they were discharged
in May. Both were on the March 21 list but they did not at any time pay
dues for any part of 1949. As to them, a "last chance" in May meant a "last
last chance." Having received one such chance, they were scarcely entitled
to another.
n Footnote 23 in The Electric Auto-Lite decision , quoted supra , speaking of "refusal to
tender" does not affect this conclusion. The subject of discussion at that point was a
completely dissimilar situation . The word "refusal" is to be interpreted as having been used
there in a generic and colloquial sense ; not as a word of art.
STANDARD BRANDS, INCORPORATED 761
But in any event, even after March, warnings were issued: By letter to
individual delinquents, by notices on the plant bulletin board, and by word
of mouth from stewards. It is plain that all the complainants were given
not one but many chances and warnings to pay their dues after becoming
delinquent. In such a setting the contention that they should have had a
"last" chance, resolves itself into the claim that the complainants were entitled
to one more warning than they were given-no matter how many that might be.
Contention is also made, supported by the testimony of witnesses for the
General Counsel, that union practice had been to post lists of names of delinquent
members on the plant bulletin board, warning them of the possibility of
discharge for arrearages. Consequently, it is said, the complainants were mis-
led by the failure to do this in May ; the conclusion to be drawn apparently
being that this deviation from normal practice was discriminatory within the
meaning of the provisos. Assuming the asserted facts, I would not find, as a
matter of law, any irregularity. The burden being on the complainants to
pay their dues, the abandonment without notice of a practice of threatening
each delinquent with discharge before actually seeking it, is not a violation
of the law. But I do not find the factual assertion supported. Witnesses
for the Company and the Union denied that lists of names of delinquent
members were ever posted on the plant bulletin board. I credit this testimony.
What were posted were the names of new employees required to join the Union
after 30 days employment.
In view of the facts that (1) the obligation was upon the complainants to
discharge their dues obligation and (2) that they all had received ample and
repeated warning of the consequences of delinquency, it is immaterial that
they may not, as some of them testified, have received Business Agent King's
May warning letter.
Personal considerations were advanced by many of the complainants as
excuses for not having paid their dues. These ranged from financial difficulties
and family illness to mere "lack of time" to pay them. These are matters,
however, to be-and which were- advanced to the Union.
In the case of Simone, it is claimed that he was entitled to a setoff against the
Union and therefore was not delinquent in dues. Around September of each
year union stewards are paid an amount equal to their dues for their services
as stewards, upon condition that they not be delinquent in dues. Simone
became a steward in March 1948; the policy of reimbursing stewards was
established in September 1948. Simone became delinquent in May 1948 and
remained so until February 1949, when, upon warning from Business Agent
Xing, he paid up through January 1949. On that occasion Simone asked about
the reimbursement. King said that he would look into the matter-but that
Simone should pay his dues regardless; and that he was not excused from
paying because he was a steward. Nevertheless, Simone made no further dues
payments in 1949. Ifind no right of offset. Since his dues were unpaid, Simone
never became entitled to payment for his services as steward. Nor can it
be claimed that he was misled. He was delinquent long before the reimburse-
ment policy was established. If Simone had believed that the new policy
excused him from paying dues, King's statements to him in February 1949
certainly dispelled any such understanding.
It is found that, at the time of their suspensions and discharges, union mem-
bership was not being denied the complainants in violation of the provisos to
Section 8 (a) (3). Consequently the suspensions or terminations were not
violative of Section 8 (b) (2). These being legitimate, the Company could not,
as a matter of law, have violated the provisos in effecting the discharges.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But even if it were found that the suspensions were violative of the provisos,
the Company had no reasonable grounds to believe, at the time it affected the
discharges , that they were . There was nothing in the circumstances of the
request for discharge to put the Company on notice that union membership was
not available to the complainants on the same terms and conditions generally
applicable to other members, or that the complainants ' membership had been
terminated for reasons other than their failure to tender the periodic dues
uniformly required . Upon the basis of an apparently legitimate demand the
Company then discharged the complainants . Whatever facts to the contrary
might have been brought to the attention of the Company thereafter , they could
not affect the legitimacy of the discharges. It is therefore found , that , irrespec-
tive of whether the suspensions were violative of Section 8 (b) (2), the Company
did not, at any material time, have reasonable grounds to believe that the Union
was dealing illegitimately with the complainants.
The Requests for Reinstatement and New Employment
The suspensions and discharges having been valid , the Company was under no
obligation to reinstate the complainants . Whether it would have been under
such an obligation if, following the discharges , the Company had received
authentic information establishing that the suspensions or terminations had
been improper , it is unnecessary to decide . On the facts here, it is found (1)
that the Company received no such information and (2 ) that even if it had,
since the deprivation of membership was in fact legitimate , the contrary informa-
tion would be of no materiality . In my judgment , information under such cir-
cumstances serves to make the discharges not void, but voidable ; the employer
assumes the risk that the information is true.
As has been noted, the complainants ' denied testimony is that they also asked
the Company for new employment . It is unnecessary to decide this conflict
in testimony. Even if the complainant 's version be accepted , the Company was
entitled , under the existing circumstances , to refuse them employment because
of their failure to maintain their union membership . It is argued that, what-
ever the validity of the discharges , the Company could not legally refuse, upon
application , to hire the complainants as new employees ; the contention being.
in sum, that refusal to hire because of nonmembership in a union is violative
of the Act, as indeed it is in the ordinary circumstance . And, it is said, the
complainants who applied were refused employment for such reason.
I do not find the contention sustainable . In the first place the plant was then
in a period of layoff . There is no evidence that employees were then being
hired, or that there were any vacancies which the complainants were qualified
to fill.
In the second place , in my judgment , an employer having validly discharged
an employee for nonmembership in a labor organization is privileged to refuse
to rehire the employee at least during the term of the existing union-shop con-
tract. The statutory requirement for some such rule seems obvious. Unless
an employer may refuse to rehire the discharged employee during the contract
term, or during some other reasonable period , the union-shop provisions of
Section 8 ( a) (3) would be effectively nullified . Thus, an employee discharged
under a valid union-shop contract , for failing without excuse to obtain union
membership within 30 days after employment , could immediately apply for
rehire, must be hired , and would be entitled to 30 more days of employment free
from the requirement of union membership . By the process of hire, discharge,
and rehire each 30 days , employment could be maintained throughout the life
of the contract without the acquisition of union membership : This would
STANDARD BRANDS, INCORPORATED 763
scarcely result in achievement of the congressional objective of eliminating "free
riders," of which the Board took cognizance in the Union Starch & Refining case.
On the other hand, it is not desirable, and it scarcely was congressional in-
tent, that union-shop contracts should authorize the establishment of perpetual
blacklists of employees discharged for failure to acquire or retain union member-
ship. Somewhere between the two extremes a reasonable dividing line must be
found that will permit the functioning of the union-shop concept without per-
manent blacklisting of employees. The period of the duration of the current
contract seems a reasonable term. Under some circumstances, such as a dis-
charge at the end of a contract period, immediately succeeded by the renewal
of the same contract, perhaps other provision ought to be made. For the deter-
mination of the instant problem, however, the contract period provides an
adequate solution. Future problems may safely be left to future determination
in the light of facts and considerations relevant at that time.
The instant contract had an expiration date of September 1, 1949. It is there-
fore held that, having validly discharged the complainants for failing without
excuse to maintain their union membership, the Company was not under any
obligation to rehire them during the term of the existing union-shop contract.
As to the request of some of the complainants for reinstatement or new mem-
bership in the Union after their valid discharges: The Union was free to refuse
their requests. A union may limit its membership to whom it chooses without
violation of Section 8 (b) (2) or 8 (b) (1) (A), providing it does not at the
same time seek to deny or to terminate the employment of employees for non-
membership. Union Starch & Refining Company, 87 NLRB 779, 787, and see
House Report No. 510 on H. It. 3020, p. 41:
The [House] Committee did not desire to limit the labor organization with
respect to either its selection of membership or expulsion therefrom. But
the committee did wish to protect the employee in his job if unreasonably
expelled or denied membership.
Consequently the mere denial of union membership after the termination of
the employment relationship was not, under the existent circumstances, an unfair
labor practice on the part of the Union. Whether it might be so under other
circumstances need not be determined here.
As to six of the complainants: (Debnam, Mulhearn (Owens), Mulvaney,
Rinaldi, Van Nest, and Wyzykowski) the evidence shows in substance only that
they were more than 3 months delinquent in dues, that their discharge was
demanded in the Union's May 27 letter, and that they were discharged. There
is no evidence of any protest on their part to the Company or to the Union, or
evidence of request for reinstatement, new employment, or new union member-
ship. The only possible claim of discrimination with respect to these six, there-
fore, is that the singling out of greater delinquents for membership termination
and discharge, rather than all delinquents, was unlawful. This contention has
previously been found to be without merit.
It is found that all the compainants failed to maintain their membership in
the Union as required by the valid existing union-shop contract ; that they were
suspended for nonpayment of periodic dues ; and, upon demand by the Union,
they were discharged by the Company pursuant to the terms of the contract.
It is further found that neither that action, nor the Company's subsequent re-
fusal to reinstate the complainants, nor its asserted refusal to rehire them,
constituted violations of Section 8 (a) (3) or 8 (a) (1). It is further found
that neither the Union's suspension of the complainants, its demand for their
discharge , its refusal to accept tenders of dues thereafter , nor its refusal to
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate the complainants as union members or, to accept their applications for
new membership , constituted violations of Section 8 (b), (2) or 8 (b) (1) (A)
of the Act. The complaints should therefore be dismissed.
Recommendations
Upon the basis of the foregoing findings of fact and legal conclusions, and
upon the entire record in the case, I recommend that the complaint be dismissed
in its entirety.
INTERNATIONAL PAPER COMPANY, TONAWANDA MILL and UNFrED
PAPERWORKERS OF AMERICA, CIO, PETITIONER . Case No. 3-RC-723.
December 28,1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John C. McRee, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case,' the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the reasons indicated
below.
The Petitioner seeks a single-plant production and maintenance unit
limited to the Employer's Tonawanda mill, North Tonawanda, New
York. The Employer and Joint Intervenor, however, contend that
such a unit is inappropriate because only a multiplant unit of all the
plants in the northern division, including the Tonawanda Mill, is
appropriate.
General Operations
The Employer is a New York corporation engaged in the manufac-
ture of paper, pulp board, and paper bags. Its principal office is
located in New York City and it has branch offices, mills, and plants in
various parts of the United States and Canada. It has several dis-
tinct, autonomous divisions, one of which is the northern division,
° The request of the Employer and the Joint Intervenor (International Brotherhood
of Paper Makers , AFL, herein called Paper Makers, International Brotherhood of Pulp,
Sulphite & Paper Mill Workers, AFL, herein called Pulp Workers , and International
Brotherhood of Firemen and Oilers , AFL, herein called Firemen ) for oral argument is
denied inasmuch as the record and the briefs , in our opinion, adequately and fully present
the issues and positions of the parties.
97 NLRB No. 106.