The Baltimore Transfer Co. of Baltimore City, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1951

94 N.L.R.B. 1680 (N.L.R.B. 1951)

1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]
THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY , INC. and
WILLIAM D. CUNNINGHAM
LOCAL No. 639, DRIVERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS
UNION, AFL and WILLIAM D . CUNNINGHAM . Cases Nos . 5-CA-240
and 5-CB-35. June 28, 1951
Decision and Order
On January 15, 1951, Trial Examiner William F. Scharnikow is-
sued his Intermediate Report in the above-entitled proceedings, find-
ing that the Respondents had engaged in certain unfair labor prac-
tices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter only the Respondent
Union filed exceptions to the Intermediate Report and a supporting
brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
cases, and hereby adopts the findings,' conclusions,2 and recommen-
1 The Trial Examiner found, and we agree, that the discharge of the complainant violated
proviso ( B) of Section 8 (a) (3) and also Section 8 ( b) (2), despite the fact that the
evidence does not show a "tender" in the strict legal sense by the dischargee of his dues
arrearages on his later visits to the union hall. As the Board stated in Union Starch c
Refining Company, 87 NLRB 779, 784, "proviso ( B) requires a tender of dues." However,
by that observation the Board was indicating the basic distinction between proviso B
and proviso A and was pointing out that in proviso A the question of whether the employee
has offered to pay dues and fees is not relevant whereas in proviso B it is. The statement
made was not intended to establish any requirement that proviso B is applicable only where
there has been the kind of "tender " that would satisfy a strict legal definition of that term.
In the present case the dischargee , shortly after he had been fined, proffered his dues
book and money at the Union's payment window for the dues current at that time. The
payment was refused and Cunningham was referred to the Union' s executive board which
ratified the refusal to accept his payment of the dues. Cunningham visited the union
hall twice a year in the four following years and told the man at the window each time
that he was willing to pay his dues and reinstatement fee, but each time he was informed
that he would have to see the executive board as he had been fined . On these occasions
he was not permitted to see the executive board. Under these circumstances we find
that the complainant had clearly indicated his immediate willingness to pay his dues and
arrearages and was not obliged to continue to make the useless gesture of actually handing
the money to the Union ' s cashier each tinre in order to fulfill the obligation of "tender"
required by proviso ( B) of Section 8 (a) (3) and Section 8 (b) (2).
2 Paragraph 2 of the Trial Examiner ' s "Conclusions of Law" contains a typographical
error which we hereby correct by deleting the words "because of," and substituting in
lieu thereof the words , "on some ground other than."
94 NLRB No. 220.
THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY, INC. 1651
dations of the Trial Examiner with the following additions and modi-
fications.
1. The Trial Examiner found, and, we agree, that the charges against
the Company and the Union were filed when they were received by
the Regional Director on September 26, 1949.
The Respondents contend that the charge against the Company was
not filed until September 29, 1949, the date the corrected charge was
received by the Regional Director, and was not served until it was
received from the Regional Director by the Company on October 1,
1949. With this we do not agree. It is clear on the face of the charge
not only from the allegations of unfair labor practices but from the
fact that the charge was signed by the charging party's attorney as
4'Attorney in fact for William D. Cunningham," that the insertion of
the Union's name as filing the document was an inadvertency which
could not have conceivably prejudiced the Company. We find that the
mistake in the charge was not a fatal defect and that, despite its
return by the Regional Director for correction, it was effectively filed
on September 26, 1949.
It is further argued by the Respondents that Section 10 (b) requires
that the charge be filed with the Board before it is served on the par-
ties. As did the Trial Examiner, we find no merit in this argu-
ment. As stated in the Intermediate Report, the proviso of Section
10 (b) refers to the filing and service in that order-the sequence in
which they usually occur. There is, however, no directive, implicit or
otherwise, that the filing and service be made in the same order as
those words appear in the Act.3 The Board has previously held
that the proviso of Section 10 (b) is a statute of limitation and noth-
ing more. The service by registered mail of copies of the charges on
the Respondents on the same day on which the charges were filed
with the Regional Director "clearly discharges a vital requirement
of any statute of limitation, namely, the establishment of a tolling
point for the operation of the prescribed statutory period" 4-the
Respondents were-notified that the date at which their liability for
unfair labor practices might commence had been established. We con-
clude that upon the facts of this case-i. e., that the charges were re-
ceived by the Regional Director on the same day on which copies were
received by the Respondents-the filing and service requirements of
Section 10 (b) have been nmet.
2. We agree with the Trial Examiner that the charges were timely
filed within the 6-month period of limitation established by the proviso
Unlike the 1947 amendment contained in Section 9 (c) (1) whereby Congress set up
the sequence to be followed in representation proceedings.
Cathey Lumber Company, 86 NLRB 157.
953841-52-vol. 94-107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 10 (b). In reaching this conclusion the Trial Examiner
excluded from the computation of the 6-month period the day on which
the unfair labor practice allegedly occurred, March 26, 1949.1 The
Trial Examiner's reasoning, with which we agree, follows the rationale
of the Board's decision in Ohio Oil Company, 91 NLRB 759. As
stated in the Intermediate Report, the sensible and practical view has
been to disregard fractions of a day and to hold that the statutory
period starts at midnight either preceding or after the occurrence of
the initiating event; and the choice should be that which "avoids, or at
least minimizes the possibilities of, a suspension, loss, or extinguish-
ment of the right." As applied to this case, the rule requires that the
computation of the 6-month period, after which the proviso of Section
10 (b) extinguishes the right to initiate proceedings, must exclude the
day on which the unfair labor practice took place. Accordingly, we
find that, even if the discharge occurred on March 26, 1949, and not on
March 28, 1949, the charges were timely filed on September 26, 1949."
Order
Upon the entire record in the cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that :
I. The Respondent, The Baltimore Transfer Company of Baltimore
City, Inc., its officers, agents, successors, and assigns shall :
A. Cease and desist from :
(1) Encouraging membership in Local No. 639, Drivers, Chauf-
feurs, Warehousemen and Helpers Union, AFL, or in any other labor
I In view of our decision we, as did the Trial Examiner , find it unnecessary to resolves
the conflict of evidence" as to whether Cunningham was discharged on March 26 or
March 2S, 1949.
The Union appeals from, the Trial Examiner 's finding that there is no difference in
meaning between the form of the proviso of Section 10 (b) and the more usual forms of
statutes of limitation, e. g., "within six months after." According to the Union, if the
wording of the proviso had required that the charge be filed within 6 months of the
occurrence of the unfair labor practice or 6 months after the unfair labor practice, the
first day of the period or the date of the violation would be excluded . Congress , however,
argues the Union did not phrase the proviso in the usual manner; nor, contends the'
Union, does the legislative history indicate that Congress intended the proviso to mean
the same thing.
Contrary to this contention , the legislative history clearly proves that the interpretation
of the Trial Examiner is correct. Thus, the Committee on Education and Labor (House
Rep. No. 245, 80th Cong ., 1st Sess., p. 40) and the Committee Conference (House
Conf. Rep. No. 510, 80th Cong., 1st Sess.. p. 53) interpreted the proviso to require charging
parties to file and serve their charges "within 6 months after the acts complained of
have taken place. " (Emphasis supplied .) Therefore, under the rule -of-thumb alleged
by the Union to be the majority rule, the charges would also be held to have been timely
filed . This being so, it is unnecessary, for the Board in this case to discuss the Union's.
concept of the "majority rule" in the computation of time, which apparently is based
upon its interpretation of the application of the rule enunciated in Sheets V. Selden's
Lessee, 2 wall. 177, 69 U. S. 177 (1864). See, however, The Ohio Oil Coin.panp, 91
NLRB 759, and the cases cited therein.
THE BALTIMORE, TRANSFER COMPANY OF BALTIMORE CITY, INC. 1683
organization of its employees, by discharging any of its employees
or discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment, except to the
extent that such acts on its part are justified under an agreement re-
quiring membership in a labor organization as a condition of continu-
ing employment as authorized by Section 8 (a) (3) of the Act.
(2) In any like or releated manner interfering, restraining, or coerc-
ing its employees in their right to refrain from exercising the rights,
guaranteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized by Section
8 (a) (3) of the Act.
(B) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Offer to William D. Cunningham immediate and full reinstate-
ment to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges.
(2) Upon request make available to the Board or its agents for ex-
amination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay and the right of
reinstatement in the manner set forth in Section V of the Intermediate
Report, entitled "The Remedy."
(3) Post at its terminal at Washington, D. C., copies of the notice
attached hereto as Appendix A.7 Copies of said notice, to be furnished
by the Regional Director for the Fifth Region, shall, after being duly
signed by the Respondent Company's representative, be posted by it
immediately upon receipt thereof, and maintained by it for sixty (60);
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.* Reasonable steps
shall be taken by the Respondent Company to insure that such notices
are not altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order what steps it has.
taken to comply herewith.
H. The Respondent, Local No. 639, Drivers, Chauffeurs, Warehouse-
men and Helpers Union, AFL, its officers, representatives, agents,
successors, and assigns shall :
A. Cease and desist from :
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words "A Decision and Order " the words,
"A Decree of the United States Court of Appeals Enforcing."
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i(1) Causing or attempting to cause The Baltimore Transfer
Company of Baltimore City, Inc., to discharge or in any other manner
to discriminate against its employees in violation of Section 8
'(a) (3) of the Act, or to discharge or in any other manner to discrim-
inate against employees with respect to whom membership in the Re-
spondent Union has been denied or terminated upon some ground
other than failure to tender the periodic dues and initiation fees uni-
formly required as a condition of acquiring or retaining membership.
(2) Restraining or coercing employees of The Baltimore Transfer
Company of Baltimore City, Inc., its successors or assigns, in the ex-
ercise of their right to refrain from any or all of the concerted activi-
ties guaranteed to them by Section 7, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized by
Section 8 (a) (3) of the Act.
B. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Notify The Baltimore Transfer Company of Baltimore City,
Inc., in writing and furnish a copy to William D. Cunningham,
that it has withdrawn its objections to the employment of Cunning-
ham and requests the Company to reinstate Cunningham.
(2) Post in conspicious places in its business office at Washington,
D. C., where notices to members are customarily posted, copies of the
notice attached hereto as Appendix B.$ Copies of said notice to be
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by the Respondent Union's official representatives
be posted by it immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive days thereafter, in conspicious places, in-
cluding all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent Union to insure
that such notices are not altered, defaced, or covered by any other
material.
(3) Mail to the Regional Director for the Fifth Region signed copies
of the notice attached hereto as "Appendix B" for posting, the Em-
ployer willing, in the terminal of The Baltimore Transfer Company
of Baltimore City, Inc., at Washington, D. C., in places where notices
to employees are customarily posted. Copies of said notice to be fur-
nished by the Regional Director for the Fifth Region, shall, after
being signed by the Respondent Union's official representatives, be
forthwith returned to the Regional Director for said posting.
I In the event that this Order is enforced by a. decree of a United States Court of
Appeals, there shall be inserted before the words "A Decision and Order" the words,
"A Decree of the United States Court of Appeals Enforcing."
THE BALTIMORE, TRANSFER COMPANY OF BALTIMORE CITY, INC. 1685
(4) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps it has',
taken to comply herewith.
III. The Baltimore Transfer Company of Baltimore City, Inc., its
officers, agents, successors, and' assigns, and Local No. 639, Drivers,
Chauffeurs, Warehousemen and Helpers Union, AFL, its officers,
representatives, agents, successors, and assigns shall, jointly and sev-
erally, make William D. Cunningham whole for any loss of pay he
may have suffered because of the discrimination against him, in the
manner and to the extent set forth in the section of the Intermediate
Report entitled "The Remedy."
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we-hereby notify our employees that :
WE WILL NOT encourage membership in LOCAL No. 639, DRIVERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, AFL, or in
any other labor organization of our employees, by discharging
any of our employees or discriminating in any other manner in
regard to their hire or tenure of employment or any term or con-
dition of employment, except to the-extent that such acts on our
part are justified under an agreement requiring membership in a.
labor organization as a condition of continuing employment as
authorized by Section 8 (a) (3) of the Act. -
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the right to refrain from any or
all of the- concerted activities guaranteed them by Section 7 of
the Act, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as.
a condition of employment as authorized by Section 8 (a) (3)
of the Act.
WE WILL offer to William D. Cunningham immediate and full
reinstatement to his former or a substantially equivalent position
without prejudice to any seniority or other rights and privileges
previously enjoyed.
WE WILL make William D. Cunningham whole for any loss of
pay suffered as a result of the discrimination against him.
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of the above-named
union or any other labor organization except to the extent that this
right may be affected by an agreement in conformity with Section
(a) (3) of the Act.
THE BALTIMORE TRANSFER COMPANY
or BALTIMORE CITY, INC.,
Employer.
By --------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Appendix B
NOTICE TO ALL MEMBERS OF LOCAL No. 639, DRIVERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS UNION, AFL, AND TO ALL EMPLOYEES
OF THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT Cause or attempt to cause THE BALTIMORE TRANS-
FER COMPANY OF BALTIMORE CITY, INC., to discharge or in any
other manner to discriminate against its employees in violation
of Section 8 (a) (3) of the Act, or to discharge or in any other
manner to discriminate against employees with respect to whom
membership in our union has been denied or terminated upon
some ground other than failure to tender the periodic dues and
initiation fees uniformly required as a condition of acquiring or
retaining membership.
WE WILL NOT restrain or coerce employees of THE BALTIMORE
TRANSFER COMPANY OF BALTIMORE CITY, INC., in the exercise of
their rights to refrain from any or all of the concerted activities
guaranteed to them by Section 7, except to the extent 'that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
by Section 8 (a) (3) of the Act.
WE WILL notify THE BALTIMORE TRANSFER COMPANY OF BALTI-
MORE CITY, INC., in writing and furnish a copy to William D.
Cunningham, that we have withdrawn our objections to the em-
ployment of Cunningham and that we request his reinstatement.
THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY, INC. 1687
WE WILL make William D. Cunningham whole for any loss of
pay he may have suffered because of the discrimination against
him. -
LOCAL No: 639, DRIVERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS UNION, AFL,
By ---------------------------------------
( Representative)
Dated --------------------
Union.
(Title)
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report and Recommended Order
Mr. H. Raymond Cluster, for the General Counsel.
Mr. Richard A. Mehler, of Washington, D. C., for William D. Cunningham.
Mr. Sigmund R. IiTallins, of Baltimore, Md., for the Respondent-Company.
Messrs. Martin F. O'Donoghue and Thomas X. Dunn, of Washington, D. C., for
the Respondent'Union.
STATEMENT OF THE CASE
On August 17, 1950, upon charges and amended charges previously filed by
William D. Cunningham in each of the above-entitled cases, tl,e General Counsel
for the National Labor Relations Board,' by the Regional Director for the Fifth
Region (Baltimore, Maryland), issued an order consolidating the cases; a notice
of hearing ; and a complaint alleging that The Baltimore Transfer Company of
Baltimore City, Inc., and Local No. 639, Drivers, Chauffeurs, Warehousemen and
Helpers Union, AFL (herein called the Company and the Union, respectively,
and sometimes also referred to jointly as the Respondents), have engaged in, and
are engaging in, various unfair labor practices affecting commerce within the
meaning of Section•8 and Section 2 (6) and (7) of the National Labor Relations
Act as amended (61 Stat. 136), herein referred to as the Act.
Whether the charges in these cases were duly filed and served within the time
prescribed by Section 10 (b) of the Act, is the subject dispute between the
parties, and the evidence and arguments relevant thereto. are therefore consid-
ered in Section III, C, of this Report. It is undisputed, however, that copies of
the complaint, the notice of hearing, and various postponements of hearing were
duly served upon Cunningham and the Respondents.
With respect to the unfair labor practices, the complaint alleges in sub-
stance that :
(1) Prior to March 28, 1949, the Union terminated and denied membership in
good standing to Cunningham because he failed and refused to pay a fine levied
by the Union.
(2) On or about March 28, 1949, the Union demanded that the Company
discharge Cunningham, who was then one of its employees, for the reason that
Cunningham was not a member of the Union in good standing.
i The General Counsel and the staff attorney appearing for hint at the hearing are herein
referred to as the General Counsel ; the National Labor Relations Board is referred to
as the Board.
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) On or about March 28, 1949, the Company complied with the Union's
request, and has since refused or failed to reinstate him to his former or a
substantially equivalent position.
(4) By thus procuring Cunningham's discharge. by the Company, the Union,
in violation of Section 8 (b) (1) (A) and (2) of the Act, caused the Company
to discriminate against Cunningham in violation of Section 8, (a) (3) of the
Act, and also to discriminate against .Cunningham as an employee with respect
to whom membership in the Union had been denied or terminated on some ground
other than his failure to tender the periodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining membership.
(5) When it discharged Cunnningham at the Union's demand, the Com-
pany knew or had reason for believing that Cunningham's membership in the
Union was denied or terminated for reasons other than his failure to tender
the periodic dues and the initiation fees uniformly required as a condition of
acquiring or retaining membership in the Union.
(6) In discharging Cunningham at the Union's demand, the Company
therefore discriminated against Cunningham in regard to his hire and tenure
of employment and encouraged membership in the Union in violation of Section
8 (a). (1) and (3) of the Act.
The Respondent filed separate answers to the complaint, denying the com-
mission of any unfair labor practices.
Pursuant to notice, a hearing was held in Washington, D. C., on October 5,
1950, before the undersigned Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel, Cunningham, the Company, and the Union
appeared by counsel and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
During the hearing, the Respondents moved to dismiss the complaint on the
ground that the original charges in these cases had not been filed and served
within the time prescribed by Section 10 (b) of the Act. These motions are
denied in accordance with the considerations hereinafter set forth. Before
closing the hearing, the undersigned granted an unopposed motion by the General
Counsel to amend the pleadings to conform to the proof as to dates and the
spelling of names. All counsel waived oral argument. Since the close of the
hearing, the undersigned has received briefs from the General Counsel, the
Company, and the Union. He has also received a stipulation signed by all
counsel which lie has attached to the exhibit file as Trial Examiner's Exhibit 1.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following ;
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Baltimore Transfer Company of Baltimore City, Inc., a Maryland cor-
poration with its principal office in Baltimore, Maryland, is, and has been,
engaged in the business of hauling and transporting general merchandise and
freight as a common carrier in interstate commerce by motortruck, operating
motor freight truck lines under certificate from the Interstate Commerce Com-
mission into, from, and through several States of the United States. Its gross
annual interstate business exceeds $1,000,000.
The undersigned finds, as the Respondents admit, that the Company is engaged
in commerce within the meaning of the Act.
THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY, INC. 1689
II. THE LABOR ORGANIZATION INVOLVED
Local No. 639, Drivers, Chauffeurs, Warehousemen and Helpers Union, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
William D. Cunningham joined the Union in the fall of 1941 and paid his
monthly dues of $2.50 to and including the month of May 1944. On May 10,
1944, the Union's executive board found him quilty of charges of "imiking . . .
remarks which are detrimental to the Local Union and . . . conduct unbe-
coming a member of. this organization," and "imposed a fine of $250.00, said fine
to be paid before current dues are due."
On or about June 1, 1944, Cunningham appeared at the Union's hall and pre-
sented his dues book and $5 to the Union's agent, "Red" Rupert at the payment
window, as he had in the past. Rupert refused the payment, saying "Except for
the fine, I can't take it. You have to see them [the Union's Executive Board]."
A month or so later, Cunningham attended a meeting of the executive board and
told its members that he had offered his dues but that they had been refused.
Member Sam Welch replied, "Your'e fired and we don't chew our tobacco but
once."
Thereafter, Cunningham worked for a number of different employers as a
driver or a driver's helper. Three of these employers discharged Cunningham
after Agent Moon of the Union had visited Cunningham on the job and told him
he "couldn't work there." In one of these cases, in 1945 or 1946, Moon told
Cunningham in the presence of his employer, "As long as you don't pay that fine,
you can't work here," and the employer thereupon discharged Cunningham.
According to Cunningham's uncontradicted testimony, which the undersigned
credits, lie visited the Union's hall twice a year in 1.945, 1946, 1947, and 1948f,
and told the man at the window each, time that he was "willing to pay reinstate-
ment and dues," but received the reply. "You have to see the Executive Board.
You know you have been fined." On these occasions, Cunnnigham then went to
see the executive board and Member Welch told him each time in substance,'
"You can't see them. You owe. us money, and until you pay it, you can't talk."
On September 2, 1948, Cunningham was hired by the Company as an extra
driver's helper out of the terminal in Washington, D. C. Two days later, he
attended a meeting of the Union's executive board and told the members that
he could get a job with the Company. Welch, speaking for the executive board,
said, "We don't want your card ; you're fired. We don't chew our tobacco twice."
Pursuant to authorization given in an election conducted by the Board's
Regional Director under Section 9 (e) of the Act among the Company's em-
ployees in an appropriate unit including its drivers and driver's helpers,' the
Company had recently entered into a written agreement for the period from
August 21, 1948, to August 31, 1949, .inclusive, which covered regular and extra
drivers and helpers and provided that:
All employees within the classifications covered by this contract employed
by the company , shall within thirty days after the execution hereof or
2 A tally of the ballots in the election which was held on August 11, 1948, showed that
of 23 employees eligible to vote, 20 cast ballots, all of which were cast in favor of
"authorizing the Union and the Employer to enter' into an agreement which requires
membership in such Union as a condition of continued employment ." On August 18,
1948, the Regional Director certified this to be the result of the election.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thirty days after their employment during the term of this contract become
members of the Union and retain such membership during the period of this
contract.
Cunningham worked for the company as an extra driver ' s helper from
September 2, 1948, until October 5, 1948, when he became a regular driver. He
worker as a regular driver until January 11, 1949, when the Company 's business
entered a seasonal decline. Thereafter , until March 24, 1949, "he worked [for
the Company ] a day at a time [whenever ] he could" as an extra driver or extra
driver 's helper. Cunningham testified , and the undersigned credits his testi-
mony , that, during the week ending Saturday , March 26, 1949, George Gates,
the Company 's terminal manager, told him that he was again to be a "regular"
driver; that , since regular drivers punched time cards and were paid only at
the end of the week unlike extra employees who did not punch time cards and
were paid at the end of each day on a "petty cash" slip , Cunningham asked
Gates to be excused from punching a time card and to be paid daily for the first
few days because he needed the money ; that Gates agreed ; and that Cunning-
ham thereupon worked as a driver from Thursday , March 24, to Saturday, March
26, 1949, inclusive , and was paid out of petty cash funds e The undersigned finds
upon this testimony and contrary to the Company 's contention , that notwith-
standing the temporary arrangements for daily wage payments , Cunningham
was a regular driver of the Company on March 26, 1949.
In January 1949, Bowles , the Union 's shop steward for the Company 's drivers
and helpers , asked Cunningham if he were "straightened out with the Union."
Cunningham said, "No," but that he had been trying to settle the matter. Bowles
thereupon told him, "Hurry up and get your book straightened up."
A week or so later, Cunningham visited the Union hall to see the Union's
executive board. There, he saw Business Agent Trainham who said, "You
are out of the Union ; I will go and see what I can do for you." Trainham
went into another room to see the executive board and , upon returning, told
Cunningham , "You still owe them money."
Saturday , March 26, was the last day that Cunningham worked for the
Company. Either when he returned from his last delivery that day or shortly
after he reported for work on Monday, March 28, Manager Gates discharged
him because Shop Steward Bowles had told Gates that Cunningham was back
in his dues and would have to be discharged' Gates testified that he could
3 Gates did not deny the portion of Cunningham ' s testimony which is stated and credited
in the text. There were, however, points of conflict in their testimony relating to Cunning-
ham's discharge, which Gates testified occurred at the end of Cunningham's work on
Saturday , March 26, and which Cunningham testified occurred on Monday , March 28.
Thus , Cunningham testified, and Gates denied , that Cunningham also punched a time
card before beginning work on Saturday, March 26 ; that, not expecting to he paid out of
petty cash at the end of that day, he left work without seeing Gates ; and that he was
paid for his Saturday work only on Monday, March 28, when Gates discharged him and
had him receipt for his last day's pay on a petty cash slip dated March 26. Since the under-
signed believes that it is immaterial whether Cunningham was discharged on March 26
or March 28 , he also believes it unnecessary to decide these related conflicts in the
testimony as to whether Cunningham punched a time card on Saturday, March 26 and
left work that day without seeing Gates and without being paid , and also as to whether
he receiptedfor his last pay on March 26 or March 28.
* Cunningham testified that he was discharged on Monday , March 28 . Gates testified
at one point that he discharged Cunningham on Saturday, March 26, although at another
point in his testimony he stated that it was on a Monday. If the undersigned believed
that resolution of this conflict in the testimony were necessary in order to determine
whether the original charges in the present cases were filed and served within the 6-month
period prescribed by Section 10 (b) of the Act, he would credit Cunningham and find
THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY, INC. 1691
not recall any comment being made by Cunningham when he was informed that
this was the reason for the discharge. Cunningham, however, testified that
he told Gates "that I had been trying to pay the dues, but they still held the
fine over me, and I couldn't work 'til I paid it. . . ." Bowles (who was present
at the discharge-interview according to Gates)' did not testify. The under-
signed credits Cunningham's testimony and finds that, at the time of his dis-
charge, Cunningham told Gates in substance that the Union was requesting
his discharge because of his failure to pay the fine.
B. Conclusions
It is undisputed that the 30-day, union-shop clause in the Union's and the
Company's contract was duly authorized by the Company's employees in accord-
ance with Section 8 (a) (3) of the Act, and that, by March 26, 1949, Cunningham
had worked more than 30 days for the Company within the meaning of both
the contract and the provisions of the Act. It is equally clear from the facts,
and the undersigned accordingly finds, that the Union, by asking for Cun-
ningham's discharge, caused the Company to discharge and thus to discriminate
against Cunningham with respect to his hire and tenure of employment because
he was not then a member of the Union, thereby encouraging membership in
the Union. The Respondents contend that, under the provisions of • Section 8
(a) (3) and Section 8 (b) (2) of the Act, the union-shop clause justified their
conduct.
However, both Section 8 (a) (3) and Section 8 (b) (2) reduce the literal
effect of union-shop clauses by protecting employees against discharge upon
the requests of the contracting unions for reasons "other than . .. failure to
tender the periodic dues and the initiation fees uniformly required as a con-
dition of acquiring or retaining membership" in the unions.' For, under Section
8 (b) (2), it is an unfair labor practice for the contracting union to cause or
attempt to cause discharges for any reason other than those stated, permissible
that the discharge occurred on Monday, March 28. However, for reasons which are
fully set forth at a later point in this Report, the undersigned believes that the filing and
services of the charges were timely whether the discharge date were Saturday, March 26
or Monday, March 28.
s Cunningham did not testify as to whether Bowles was present at the time of his
discharge or not. The undersigned credits Gates' testimony that Bowles was present.
e Omitting language not pertinent to the precise problem in the present case, the
provisions of Section 8 (a) (3) and Section 8 (b) (2) are the following:
Snc. 8 (a). It shall be an unfair labor practice for an employer-
(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor organiza-
tion : Provided, That nothing . . . shall preclude an employer from making an agree-
ment with a labor organization [properly constituted and authorized by the employees
as the statutory bargaining representative for the purpose] . . . to require as a
condition of employment membership therein on or after the thirtieth day following
the beginning of such employment or the effective date of such agreement, whichever
is the later, . . . Provided further, That no employer shall justify any discrimination
against an employee for nonmembership in a labor organization . . . (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
+ s s s s s •
Sac. 8 (b). It shall be an unfair labor practice for a labor organization or its agents-
(2) to cause or attempt to cause an employer to. discriminate against an employee
in violation of subsection (a) (3) or to discriminate against an employee with respect
to whom, membership in such organization has been denied or terminated on some
ground other than his failure to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining membership ; .. .
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons. And, under Section 8 (a) (3), it is an unfair labor practice for the
employer to discharge an employee at the contracting union's request "if he
[the employer] has reasonable grounds for believing" that the request was
actually made by the union for any reason other than the permissible reasons.
Applying these provisions to the present case, it thus appears (1) that the
Union violated Section 8 (b) (2) of the Act if it sought Cunningham's dis-
charge actually for some reason other than his failure to tender the usual
monthly clues or initiation fees; and (2) that the Company violated Section 8
(a) (3) of the Act by discharging Cunningham at the Union's request only
if it had "reasonable grounds for believing" that the Union actually wanted
'Cunningham's discharge for some reason other than his failure to tender the
usual monthly dues or initiation fees.
Upon the facts found in the case, it appears that from approximately June 1,
1944, the Union repeatedly informed Cunningham that it would not accept dues
from him until he had paid the fine of $250 Imposed upon him by the Union on
May 10, 1944. On the last two of those occasions (i. e., in September 1948 and
January 1949), Cunningham was in the employ of the Company and was seeking
to reacquire status as a member of the Union in order to insure the continuance
of his employment under the union shop contract between the Company and
the Union. From the Union's insistence upon Cunningham's paying his fine
before it would accept dues from him, it is clear that its objection to his reacqui-
sition of status as a member was based, not upon his failure to pay or tender
periodic dues, but rather upon his failure to pay the long-outstanding fine. It
necessarily follows that, in asking the Company to discharge Cunningham
ostensibly because lie was "back in his dues," the Union was in reality asking for,
and procured, Cunningham's discharge because of his nonpayment of the fine.
The undersigned accordingly finds that, by thus requesting and securing
Cunningham's discharge by the Company because he had not paid the fine, the
Union, in violation of Section 8 (b) (2), caused the Company to discriminate
against Cunningham, as "an employee with respect to whom, membership
[in the Union] was denied [and] terminated on some ground other
than his failure to tender the periodic dues and initiation fees uniformly re-
quired as a condition of acquiring or retaining membership." 7 Contrary to the
Union's contention in its brief, it is immaterial that the evidence does not, in the
strict legal sense, show a "tender" by Cunningham of the amount of his dues
arrearages or even of the amount of 1 month's current dues in his later appear-
ances at the Union's hall. For, as has been found, the Union procured his dis-
charge, not because of such "failure to tender" dues payments, but rather because
of his failure to pay the fine, a reason which the Act clearly does not countenance.
In such a case, it is obvious that the employee subjected to the discrimination
need not show a "tender" of dues in order to come within the protection of the
Act..
The undersigned also finds that by actually procuring the Company's dis-
criuiinatory discharge of Cunningham, the Union also violated Section 8 (b)
(1) (A) of the Act.8
The remaining substantive question is whether the Company had "reasonable
grounds for believing" that the Union sought Cunningham's discharge for some
reason other than a failure to tender the usual monthly dues or initiation fees.
It is true that Union Steward Bowles, in requesting Manager Gates to discharge
7 Pen and Pencil Workers Union, Local 195.93, AFL, 91 NLRB 883; Electric Auto-Lite
Company, 92 NLRB 1073.
8 Clara-Val Packing Company, 87 NLRB 703; Randolph Corporation, 89 NLRB 1490;
Air Products Incorporated, 91. NLRB 1381 ; General American Aerocoach, 90 NLRB 239.
See also Pacific Maritime Association , 89 NLRB 894. -
THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY, INC. 1693
Cunningham, said that Cunningham was "back in his dues." But, as has been
found, Cunningham also told Gates in Bowles' presence that he had tried to pay
the dues but the Union "still held the fine over me, and I couldn't work until I
paid it." Yet the Company, in spite of this protest by Cunningham that
the Union was asking for his discharge because of his nonpayment of the fine
rather than his failure to pay dues, did not even ask the union steward who
was there, nor any one else representing the Union, whether this was so. Cer-
tainly, when an employer is thus told by an employee whom he is about to dis-
charge in compliance with a request from a union under a union-shop contract,
that the union is seeking hig discharge for a specified and clearly improper
reason under the standards prescribed by the Act, the employer has "reasonable
ground for believing" the employee's statement at least until, and unless, the
union, voluntarily or upon the employer's inquiry, has specifically denied its
truth. Furthermore, in the present case, the union steward who was there
when Cunningham made his statement to Manager Gates, neither affirmed nor
denied it. Under the circumstances, the undersigned finds (1) that the Com-
pany had "reasonable grounds for believing" that the Union sought Cunning-
ham's discharge for a reason other than a failure to tender the usual monthly
dues or initiation fee, i. e., his failure to pay a fine; and (2) that the Company
in discharging Cunningham at the Union's request in spite of its reasonable
grounds for believing the request to be improper, discriminated against him in
regard to his hire and tenure of employment, thereby encouraging membership
in the Union and violating Section 8 (a) (1) and (3) of the Act.
C. The defenses based upon Section 10 (b) of the Act
On Saturady, September 24, 1949, Richard A. Mehler, as attorney for Cunning-
ham, prepared and executed a charge in Case No. 5-CA-240 against the Company,
and a charge in Case No. 5-CB-35 against the Union, the originals of which he
mailed on that day to the Board's Regional Director at Baltimore. At the same
time, he sent a copy of the first of these charges to the Company by registered
mail, and a copy of the second charge to the Union, also by registered mail. On
Monday, September 26, the Regional Director received these original charges
and the Company and the Respondent, the copies of the respective charges,
against them.
In both cases, the charges were made upon the usual printed forms supplied
by the Board and stated, in substance. that Cunningham was discharged by the
Company on March 28, 1949, at the request of the Union for nonpayment of dues,
although he had tendered payment of, and was still willing and able to pay,
his dues to the Union, but that the union representative had refused to accept
the payments. Both charges were signed by "Richard A. Mehler, Attorney in.
fact for William D. Cunningham." In the blank provided in the form of charge
against the Company with the printed legend, "3. Full name of labor organiza-.
tion, including local name and number, or person filing the charge," Mehler
erroneously inserted the name of the Union instead of Cunningham's name.
On Tuesday, September 27, the Regional Director sent to the Union by regis-
tered mail, a copy of the charge against it, but returned to Mehler the original
of the charge against the Company, with the request that Mehler insert Cun-
ningham's name instead of the Union's name in Blank 3 of the body of the charge.
On Wednesday, September 28, Mehler crossed out the Union's name and inserted
Cunningham's name in the original form of the charge against the Company,
and remailed it to the Regional Director, who received it on Thursday, Septem-
ber 29. On Friday, September 30, the Regional Director sent to the Company
by registered mail a copy of the corrected charge against it. As a result the
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copies of the respective charges against them were received from the Regional
Director by the Union on Wednesday, September 28, and by the Company on
Saturday, October 1.
The Respondents contend that Cunningham's discharge (if it constituted an
unfair labor practice), occurred "more than six months prior to the filing of the
charge with the Board and the service of a copy thereof," and, therefore, that
the present proceeding based upon the discharge is barred by the provisions of
Section 10 (b) of the Act.` Their general arguments in support of this contention
are, in substance that : -
(1) The computation in any given case of the 6-month period of limita-
tions prescribed by Section 10 (b) must include the date upon which the unfair
labor practice took place, and exclude the corresponding date 6 months later,
and, therefore, that the discharge in the present case having occurred on either
March 26 or March 28 (depending upon the Board's view of the conflicting evi-
dence). the filing and service of the charges should have been accomplished
before Monday, September 26, or at least before Wednesday, September 28.
(2) The "filing" of a charge within the meaning of Section 10 (b), re-
quires an acceptance by the Regional Director of the charge lodged with him
and, therefore, that the charge against the Company, having been returned to
Attorney Mehler by the Regional Director on September 27, it was "filed," not
on Monday, September 26 (when the Regional Director first received it), but
only on Thursday, September 29 when he again received it from Mehler with
the suggested correction, and marked it "filed".
(3) Section 10 (b) of the Act requires the services of a charge after it has
been filed, and therefore, (a) that the Respondents' receipt of copies of the
charges directly from Attorney Mehler on September 26 did not constitute service,
since Mehler's mailing of these copies of them preceded the filing of the charges
with the Regional Director; and (b) that the service of these charges by the,
Regional Director upon the Union and the Company was effective only upon
the Union's receipt thereof on Wednesday, September 28, and upon the Com-
pany's receipt thereof on Saturday, October 1.
As set forth in its brief, the Union's argument for the inclusion of the date of
the unfair labor practice and the exclusion of the corresponding date 6 months
later, is primarily based upon the language used by the Congress in Section 10
(b) of the Act. It asserts, in substance, that statutes of limitations ordinarily
bar the initiation of suits "after" a specific time "from" the accrual of the cause
of action or require suits to be brought "within a specific time from" the accrual
of the action, and that this sort of language clearly requires the exclusion of
the date of the unfair labor practice and the inclusion of the date which occurs
the specified number of days, weeks, months, or years thereafter. According
to the Union, the pertinent language of Section 10 (b) is different, in that it
bars the issuance of a complaint "based upon any unfair labor practice occurring
more than six months prior to the filing of the charge ... and the service of
.a copy thereof.
The undersigned, however, fails to see any difference between the meaning of
this language 'in Section 10 (b) and the meaning of the more usual forms of
language used by legislatures in other statutes of limitations. By Section 10 (b),
the Congress stated just as clearly as if it had used the more usual phraseology
0 The pertinent provision of Section 10 (b) of the Act, from which the above quoted
language is taken, is the following :
. . . That no complaint shall issue based upon any unfair labor practice occurring
more than six months prior to the filing of the charge with the Board and the
.service of a copy thereof upon the person against whom such charge is made, . . .
THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY, INC. 1695
and form, tha no unfair labor practice proceeding was to be maintainable unless
charge were filed and served within 6 months after the commission of the
unfair labor practice. Nor does the undersigned find, either in the usual lan-
guage of other statutes of limitation to which the Union refers or in Section
10 (b), that there is any indication of legislative intent to exclude or include the
date of the event initiating the period, or the date which, by arithmetical count,
happens to be the prescribed number of clays, weeks, months, or years thereafter,
The problem of whether or not a statutorily prescribed period of time affecting
the exercise of rights should nor should not include the date of the initiating
event, is raised not only under Section 10 (-b) but also under Section 8 (d) of the
Act. By Section 8 (d), the right to strike for the termination or modification
of an existing contract between an employer and a union representing his
employees, is suspended for a period of 60 days after the union has given
written notice of its desire for termination or modification. Section 8 (d) thus
suspends the right to strike for certain objectives during the statutory period of
60 days, whereas Section 10 (b) extinguishes the right to start unfair labor
practice proceedings after the statutory period of 6 months from the date of the
unfair labor practice.
As the Board pointed out in the recent Ohio Oil Company case 10 which involved
a construction of Section 8 (d), there is no common, acceptable rule of thumb by
which the date of the event initiating these statutory periods is either to be in-
cluded or excluded in the computation of the period. If such provisions pre-
scribing time periods affecting the exercise of rights were literally and strictly
applied, the statutory periods in all cases would begin running at the exact time
of day when the initiating event occurred, and would extend to the same time of
day of the date which is exactly the prescribed number of days, weeks, months,
or years later. In close cases, such as the present case, it would obviously be
highly undesirable to make the existence, suspension, or loss of the right depend
upon the parties' proof, and the Board's determination, of the exact hour of the
initiating event and of the later act whose relative timeliness or untimeliness is
in dispute . The sensible, practical view, adopted by the courts and the Board,"
therefore, has been to disregard fractions of a day, and to hold that the statutory
period affecting the exercise of the right starts either at midnight immediately
preceding the occurrence of the initiating event, or at midnight ending that day,
and that the choice should be that which avoids, or at least minimizes the possi-
bilities of, a suspension, loss, or extinguishment of the right.
Upon this reasoning, the Board held in the Ohio Oil, Company case that, in
computing the 60-clay period during which Section 8 (d) suspends the right to
strike for certain objectives, the day upon which the notice starting the period is
given, should be included. Upon the same reasoning, the undersigned holds, con-
trary to the. Respondents' arguments, that, in computing the 6-month period fol-
lowing an unfair labor practice, after which Section 10 (b) bars the right to
initiate an unfair labor practice proceeding, based thereon, the date of the unfair
labor practice must be excluded. Thus, under Section 10 (b), Cunningham's
right to file and serve the charges based upon his discharge extended until mid-
night, September 26 (if Cunningham were discharged on March 26, as the Re-
spondents contend he was), or until midnight, September 28 (if he were dis-
charged on March 28, as the General Counsel and Cunningham contend he was).
The next question raised by the Respondents' arguments is whether the Regional
Directors' receipt of the charge against the Company in Case No. 5-CA-240 on
10 91 NLRB 759.
11 See the Ohio Oil Company case, supra, and authorities therein cited.
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 26, constituted a "filing" of the charge within the meaning of Section
10 (b) of the Act, in. spite of the fact that the Regional Director (lid not then
"docket" 'the charge but returned it to Attorney Mehler for a correction of one
of its recitations. The Company argues that, although the original form of this
charge stated that the Company committed an unfair labor practice by dis-
charging Cunningham and was signed by 11lehler as "Attorney in fact for
William D. Cunningham," it was "fatally defective [in] form" because it also
stated in the body of the charge that the Union rather than Cunningham was
the charging party. The undersigned agrees with the General Counsel, however,
that in spite of Mehler's error in this respect, the charge received by the Regional
Director on September 26 clearly stated the alleged unfair labor practice and the
fact that Cunningham was making the charge. The undersigned also agrees
with the General Counsel and finds, contrary to the Respondents' contentions,
that, under the Act, the Regional Director was required to consider the charge
and therefore, that, notwithstanding his "ministerial error" in physically re-
turning the document to Mehler, the charge against the Company, like that
against the Union, "filed" with the Board upon its receipt by the Reegional
Director on September 26.12
We come now to the Respondent's remaining contentions that Section 10 (b)
of the Act requires the service of a charge after it has been filed, and, therefore,
that the Respondents' receipt of copies of the charges directly from Attorney
Mehler on September 26 did not constitute satisfactory service, since Mehler's
mailing of these copies preceded the filing of the charges with the Regional
Director. It is true, as the Respondents point out, that, in requiring the filing
and service of charges, Section 1.0 (b) refers to the acts in that order. It is
also true that Section 203.14 of the Board's Rules and Regulations states that,
"Upon the filing of a charge, the charging party shall be responsible for the
timely and proper service of a copy thereof upon the person against whom such
charge is made." But, in thus referring to the filing and service of charges in
order in which they usually occur, the language of Section 10 (b) and of the
Rule just quoted, do not require filing before service, and the Board, although it
has not yet directly passed upon the question, has on one occasion assumed that
service of a charge might properly precede its filing.13
While it thus appears clear to the undersigned that Section 10 (b) of the Act
and the Rules do not on their face require the filing of a charge before it may
effectively be served, it is not necessary for him to decide in the present case
whether, for reasons of policy and administration not expressed in the Act or in
the Rules, the board might not see fit to disregard the service of a charge
substantially in advance of its filing 14 For, in the present case, the Respondents'
12 See American Radiator and Standard Sanitary Corporation, 67 NLRB 1135 ; Chicago
Mill d Lumber, 69 NLRB 855 . See also United States v. Lombardo , 228 F. 2d 980, 982,
affd. 241 U . S. 73, 76 , 77; Milton v. United States, 105 F . 2c1 255; Wampler v. S)iyder,
66 F. 2d 195, 196 (App . D. C.).
13 Thus, in Luzerne Hide and Tallow Company ( 89 NLRB 119 ), the Board said:
The Trial Examiner found that the 6 -month period specified in Section 10 (b) of
the Act dates back not from the time of the filing of the charge but from its service
upon the respondent . In the circumstances of this case we agree with this holding.
(We do not pass upon the question of which would be the crucial date if the service
of the charge preceded the filing thereof.)
14 The undersigned expresses no opinion as to this possibility and states it merely to
indicate the limits of the holding which lie must, and does, make in the present case.
THE BALTIMORE TRANSFER COMPANY OF BALTIMORE CITY, INC. 1697
receipt of the copies of the charges directly from Attorney Mehler, and the
Regional Director's receipt of the original charges both occurred on Monday,
September 26, with no indication in the record of their sequence. Thus, service
by Mehier upon the Respondents occurred either immediately before, at the same
time, as or shortly after the receipt by, or filing of the charges with, the Regional
Director. The exact problem in the present case, therefore, is whether the roughly
contemporaneous service and filing of a charge, where the service shortly precedes
the filing if at all, is satisfaction of the service requirement of Section 10 (b).
The undersigned holds that it is, and finds,, contrary to the Respondents' con-
tentions that the direct service of the'copies of the charges by Mehier and the
filing of the originals on September 26, constituted compliance with Section 10
(b) of the Act.
In summary, the undersigned concludes upon the foregoing considerations that
the charges in the instant cases were duly filed and served on September 26,
1949 and thus within 6 months after Cunningham's discharge whether the dis-
charge occurred on March 26 or March 28, 1949. The Respondents' contention
that the present proceeding is barred by Section 10 (b) of the Act is therefore
rejected.
IV. THE }FFEOT OF THE. UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in Section III, above, occurring in
connection with the operations of the Respondent Company, set forth in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to.labor disputes burdening and
obstructing commerce and the free flow thereof.
P. THE REMEDY
Having found that the Respondents engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
It will be recommended that the Respondent-Company offer William D.
Cunningham immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights and
privileges ; and that the Respondent-Union notify the Respondent-Company in
writing, and furnish a copy to Cunningham, that it has withdrawn its objections
to the employment of Cunningham by the Respondent-Company and requests
the Respondent-Company to reinstate him.
However, it is possible that, when the proper case presents itself, the Board might hold
that, in order to be effective under Section 10 (b), the precedent service of a charge must
be made with an intent immediately to pursue the remedies provided by the Act and to
secure a determination by the Board , rather than merely to threaten the unfair labor
practice proceeding for whatever advantage might be secured extra the Board's processes.
Such an intent, of course, could be evidenced only by a filing of the charge shortly after
it was served. An analogy to such a possible rule and its suggested basis is furnished
by the Board' s rule that the status of a bargaining representative under an automatically
renewable contract may be effectively challenged by a rival union's claim before the end
of one of the contract -periods only if the rival union files a petition under Section 9 (c)
of the Act within 10 'days after making its claim to the employer. See General Electric
X-Ray Corporation, 67 NLRB 997 ; Acme Brewing Co., 77 NLRB 1005; Flawaian Dredging
Company , Ltd., 77 NLRB 1378.
953841-52-vol. 94--108
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since it has been found that the Respondent-Union and the Respondent-
,Company are both responsible for the discrimination suffered by Cunningham,
it will be recommended that they jointly and severally make Cunningham whole
for the loss of pay he may have suffered by reason of the discrimination against
him, by payment to Cunningham of a sum of money equal to that which he
normally would have earned as wages from March 28, 1949, to the date of the
Respondent-Company's offer of reinstatement, less his net earnings during said
period ;16 provided, however, that the Respondent-Union's liability shall be
,tolled 5 days after it serves the written notice upon the Respondent-Company of
its withdrawal of objections to Cunningham's employment and its request for
,Cunningham's reinstatement.
Loss of pay for the foregoing purposes shall be computed on the basis of each
-separate calendar quarter or portion thereof during the period of the Re-
spondents' liability. The quarterly periods, herein called quarters, shall begin
with the first day of January, April, July, and October. Loss of pay shall be
,determined by deducting from a sum equal to that which Cunningham would
normally have earned for each such quarter or portion thereof, his net earnings
if any, in any other employment during that period. Earnings in one particular
.quarter shall have no effect upon the back-pay liability for any other quarter 1"
It will also be recommended that the Respondent-Company, upon reasonable
request, make available to the Board and its agents all payroll and other records
pertinent to an analysis of the amounts due as back pay..
Upon the basis of the foregoing findings of fact and upon the entire record
jn the case, the undersigned makes the following:
CONCLUSION OF LAW
1. The Respondent-Union, Local No. 639, Drivers, Chauffeurs, Warehouse-
men and Helpers Union, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By causing the Respondent-Company to discriminate against William D.
Cunningham, an employee with respect to whom membership was denied and
terminated by the Respondent-Union because of his failure to tender the
periodic dues and initiation fees uniformly required as a condition of acquiring
or retaining membership, the Respondent-Union has engaged in, and is engaging
in, unfair labor practices within the meaning of Section 8 (b) (2) and (1)
.(A) of the Act.
3.. By discriminating in regard to the hire and tenure of employment of
William D. Cunningham at the demand of the Respondent-Union under a contract
-making membership a condition of continued employment but with reasonable
-ground for believing that Cunningham's membership in the Respondent-Union
-was denied or terminated on some ground other than his failure to tender the
-periodic dues and initiation fees uniformly required as a condition of acquiring
or retaining membership, the Respondent has unlawfully encouraged, and is
unlawfully encouraging membership in the Respondent-Union, and has com-
mitted, and is committing unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
,commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
15 Crossett Lumber Company, 8 NLRB 440.
16 F. W. Woolworth Company, 90 NLRB 289.